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McHaney, J.
Appellant, a citizen and taxpayer, seeks to enjoin the State Highway Commission from building “la toll bridge on the State Highway across White River, at or near Augusta, in Woodruff County.” This action challenges the constitutionality, of act 104 of the Acts of 1927, which authorizes the State Highway Commission “to construct and operate toll bridges on the State Highway system, and to fix the rates and collect the tolls thereon.” It is -claimed that §§ 1, 3 and 6 of said act are. unconstitutional and, for that reason, are voi-d.' These sections are as follows:
“Section 1. The State Highway Commission' is hereby authorized to construct and operate toll bridges on the State High-way system and to fix the rates and collect the tolls thereon. When the cost of construction has been realized from the tolls, and the bonds issued on any bridge, with interest, are paid in full, and all sums advanced or loaned by the State Highway Commission are repaid, no further lolls shall be collected, and the use of the bridge thereafter shall be free.”
“Section 3. The Commission may acquire the land necessary for approaches to bridges by gift or purchase, or by condemnation in the manner provided by law for condemning rights-of-way by railroad companies in this State, but without the necessity of making a deposit of money before entering into the possession of the property condemned. The cost and expense of acquiring such land and the expense of constructing approaches shall be considered a part of the cost of constructing the bridges.”
“Section 6. Before issuing bonds .for a toll bridge the Commission shall fix the rates of toll to be collected on such bridge. The Commission may, from time to time,, raise or lower the rales, but it shall always maintain rates that will produce sufficient revenues to pay the bonds and interest as they mature ¡and become due, and keep the bridge and its approaches in good repair.”
It is further alleged in the complaint that the act. is unconstitutional, for two reasons:
1. That it offends agiainst § 28 of article 7, which reads as follows: ‘ ‘ The county courts shall have exclusive original jurisdiction in all matters relating to county laxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes; and • in every other case that may be necessary to the internal improvement and local concerns of the respective counties. The county court shall be held by one judge, except in cases otherwise herein provided. ’ ’
2. That it offends against § 1 of article 16, which reads as follows: “Neither the .State nor any city, county, town or other municipality in this State shall ever loan its credit for any purpose whatever ;• nor shall any county, city, town or municipality ever issue any interest-bearing evidences of indebtedness, except such bonds as may be authorized by law to provide for and secure the payment of the present existing indebtedness, and the State shall never issue any interest-hearing treasury warrants or scrip.”
A third ground of complaint made against the validity of the act is that it was not read at length on three different days in each house of the General Assembly, nor wore the rules suspended by a two-thirds vote of each house, nor was a vote taken by ayes and nays and the names of the persons, voting for and against the same entered on the journal, as provided by § 22 of article 5 of the Constitution.
To the complaint alleging these infirmities in the act, a demurrer was interposed and sustained, and, on appellant’s refusal to plead further, his complaint was dismissed for want of equity. From this judgment this appeal is prosecuted.
1. The first contention, that the act is void in that it offends against article 7, § 28, Constitution 1874, for the reason that it deprives the county courts of their, exclusive original jurisdiction over roads and bridges, cannot be sustained, as this court has quite recently held to the contrary in Fulton Ferry & Bridge Co. v. Blackwood, 173 Ark. 645, 293 S. W. 2. It was there held that, since the bridg’e was to be built on an existing highway laid out by the county court, its jurisdiction had been exercised, and was not invaded by the- act of the Legislature authorizing the State Highway Commission to build a bridge thereon. So here, the complaint alleges that the bridge is to be built “on a State Highway,” and, when constructed, will be a part of the State Highway. The act in question authorizes the Commission to build it by issuing bonds for its cost, and to charge and collect-tolls to repay the bonds, and that, when the bonds have been paid and all sums advanced from the highway fund repaid, it shall be toll-free. It is not contemplated that there shall be any tax on the general public, either for construction or maintenance, ¡and no burden is placed on the county, either for construction, maintenance or supervision. These were substantially . the facts in Fulton Ferry & Bridge Co. v. Blackwood, supra, and we there held that the jurisdiction of the county court was not invaded.
Moreover, a majority of the court is of the opinion that article 7, § 28, of the Constitution has no application to a State Highway; that the word “county” as used in this section, is used in its adjective sense, and therefore modifies the noifns litaxes,” “roads,” “bridges,” .“ferries,” etc. .And that the “original exclusive jurisdiction” conferred on the county courts related solely to county taxes, county roads,- county bridges, county ferries, etc; and this idea is strengthened by the concluding sentence of this section, “and in every other case that may be necessary to the internal improvement and local concerns of the respective counties.” Nobody would ever contend that the county courts had anything to do with ¡State taxes. They were given jurisdiction over county taxes. If the word “county” modifies the ■ words “roads,” “bridges,” and “ferries,” as we think is necessarily true, then it follows, as a matter of course, that the exclusive original jurisdiction of the county courts extends only to county roads and county bridges, and that they do not have exclusive, original jurisdiction over State roads and State bridges.
"We do not think the framers of the Constitution had in mind any such stupendous advancement in methods of locomotion and means of transportation as exists today. They did not get a vision of the future of their State, with its citizens traveling entirely across the State over a great State Highway, a distance of three or four hundred miles, in ten or twelve hours. Then, with the means at hand, 50 miles was a hard day’s journey. Even so, they did not, in framing the Constitution, deny the right, power and authority of the State to lay out, construct, repair and maintain State highways, and necessarily bridges or ferries thereon. As we said in Bush v. Martineau, 174 Ark. 214, 295 S. W. 9, “the Constitution of this State is not a grant of enumerated powers to the Legislature, not an enabling, but a restraining act, and that the Legislature may rightfully exercise its powers, sub ject only to the limitations and restrictions of the Constitution of the United States and the State of Arkansas.” We there quoted from McClure v. Topf & Wright, 112 Ark. 342, 166 S. W. 174, as follows: “It is not to he doubted that the Legislature has the power to make the written laws of the State, unless it is expressly, or by necessary implication, prohibited from iso doing- by the Constitution, 'and the act assailed must be plainly at variance with the Constitution 'before the court will so declare it.” See authorities cited in Bush v. Martineau, supra.
The cases cited by counsel for appellant and amici curiae were cases which came before this court before the State had entered upon such a comprehensive road program, comprising a complete system of State highways throughout the entire State, and the acts of the Legislature of 1927, including the 'act now under consideration, and act No. 31, commonly referred to as the Martineau Road Law, were not before this court. For instance, take the case of Bonds v. Wilson, 171 Ark. 328, 284 S. W. 24, where the court said: “The question of the authority of the State Highway Commission to lay out and establish public roads is not involved in this case. The Legislature has not attempted to confer such authority upon the State Highway Commission, and could not do so, for that would constitute an invasion of the constitutional jurisdiction of the county court.” It will be noticed that the court proceeded to decide a question which it states is not before the court. Therefore the conclusion reached was not necessary to a decision of the case, and is obiter. Since the State has iadopted the policy, as specifically declared in act No. 11 of 1927, § 1, “to take over, construct, repair, maintain and control all the public roads in the State comprising- the State highways, ’ ’ and since, as we have seen, § 28 of art. 7 of the Constitution does not, either expressly or by necessary implication, prohibit it from so doing, we conclude that appellant’s first' contention must be overruled.
Appellant raises certain questions on this appeal that were not raised by the pleadings in the court below; first, that §§ 2 and 12 of the act under consideration attempt to extend the provisions of certain sections of other acts by reference to their title only, in violation of §. 23, art. 5; and second, that the act provides for the taking of private property for public use without just compensation, in violation of § 22, art. 1, of the Constitution. We have examined the argument made, and find it without merit. Appellant does not claim that his land is about to be taken, and is in no position to complain. See Harrington v. White, 131 Ark. 291, 199 S. W. 92, on the first matter.
2. It is next urged that the act offends against § 1, art. 16, of the Constitution, because the Highway Commission is authorized to borrow money and issue bonds to construct bridges. This question has 'been definitely settled lagainst appellant, with no room for controversy, by many decisions of this court, the latest being Bush v. Martineau, supra, and the .cases cited therein. It would serve no useful purpose to quote from them again, or to repeat the reasoning there set out. Suffice it to say that this act does not offend against the Constitution in this regard.
3. It is finally claimed that this act was not passed in accordance with § 22, art. 5* of the Constitution, already mentioned. We cannot sustain this contention. In Bush v. Martineau we quoted from Road Improvement Dist. v. Sale, 154 Ark. 551, 243 S. W. 825, as follows:
“The rule is firmly established in this State that an enrolled statute signed by the Governor and deposited with the Secretary of State raises the presumption that every requirement was complied with, unless the contrary affirmatively appears from the records of the General Assembly, and that this presumption is conclusive unless the records, of which the court can take judicial knowledge, show to the contrary. ’ ’
Also we have examined the journal entries, and find the- constitutional requirement, complied with.
No error appearing, the decree is affirmed.
Hart, C. J., concurs in the judgment. | [
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Hart, C. J.,
(after stating the facts). The decree of the chancellor was based upon a holding that the facts in the case at bar bring it within the principles of law decided in Lee v. Osceola & Little River Road Improvement District No. 1 of Mississippi County, Arkansas, 268 U. S. 647, 45 S. Ct. 620, 69 L. ed. 1133, in which it was held that a State cannot impose special taxes on-lands acquired by private owners from the United States on account of benefits resulting from a road improvement made before the United States parted with its title.
It is earnestly insisted by counsel for appellants that appellee is estopped by his conduct from questioning the validity of the annexation proceedings under which his property was placed in Drainage District No. 7 of Poinsett County and an assessment of benefits made against It. On the other hand it is -claimed that, under the principles laid down by the Supreme Court of the United States in the Lee case, the doctrine of estoppel can have. no application, because the land of appellee belonged to the United States at the time the petition for the annexation proceedings was signed by appellee and other landowners similarly situated.
We do not think that the Lee case is decisive of this question. In that case the road improvement district was formed under the general statutes of the State providing for the establishment of road improvement districts, and the’ lands were what are known as lake lands or sunk lands, .just as the lands involved in the present appeal are known. These lands, however, were included in the organization of the district, and benefits were assessed against them as land of riparian owners. Subsequently the land was adjudged to belong to the United States, and the title passed from the United States to private landowners. The improvement was completed at the time the title to the land was in the United States, and the United States did not grant the improvement district any authority to assess benefits against lands owned by the United States. Neither did the claimants of the land do anything that could be said to have been a participation in the formation of the district or the construction of the improvement. Hence there was no element of estoppel in that case.
In Wight v. Davidson, 181 U. S. 371, 21 S. Ct. 616, 45 L. ed. 900, it was held that a constitutional right against unjust taxation is given for the protection - of private property, but that it may be waived by those affected who consent to such action to their property as would otherwise be invalid. This principle was recognized by the Supreme Court of the United States in the Lee case, but the effect of the opinion is that there was no element of estoppel under the facts of that case.
The ease of Nevada National Bank v. Poso Irrigation District, 140 Cal. 344-347, 73 P. 1056, is cited in support of the holding* of the United States Supreme Court. In the California case it was said that, if the grantee of the United States must take the land burdened with the liability of an irrigation district made to include it, without the consent of the government or the purchaser, it attaches a condition to the disposal of the property by the government without its acceptance or consent, and .which must in such case interfere with its disposal.
"We think the Lee case, then, expressly recognizes that the doctrine of estoppel may be invoked in a proper case like the one under consideration; but it could not be applied under tbe facts of that case, because there had been no assent to the imposition of the taxes by the United States or by its grantee.
It is not claimed that the United States assented to the imposition of the special taxes in the present case, but it is claimed that, after appellee became the beneficial owner of the land, he was guilty of such acts and conduct as would estop him from attacking the validity of the annexation proceedings and the subsequent assessment of his lands thereunder. It is true that appellee and others filed a petition in 1918 for the annexation of their lands to the drainage district, but the change of plans was not made and the assessment of benefits was not made until June, 1919, at which time appellee and the other landowners who petitioned for the annexation had received final certificates of entry from the United States. When the certificate of entry was issued to appellee, he acquired the equitable title to the land, and the legal title alone remained in the United States. The land, in effect, thus no longer belonged to the United States but to the purchaser. Witherspoon v. Duncan, 21 Ark. 240, affirmed in 4 Wall. (U. S.) 210, 18 L. ed. 339. In affirming the case, Mr. Justice Davis, speaking for the court, said:
“According to the well-known mode of proceeding at the land offices (established for the mutual convenience of buyer and seller), if the party is entitled by law to enter the land, the receiver gives him a certificate of entry reciting the facts, by means of which, in due time, he receives a patent. The contract of purchase is complete when the certificate of entry is executed and delivered, and thereafter the land ceases to be a part of the public domain. The government agrees to make proper conveyance as soon as it can, and in the meantime holds the naked legal fee in trust for the purchaser, who has the equitable title.”
Continuing, the learned Justice said:
“That Congress has the entire control of the public lands, can dispose of them for money, or donate them to individuals or classes of persons, cannot be questioned. If tbe law on the subject is complied with, and the entry conforms to it, it is difficult to see why the right to tax does not attach as well to the donation as to the cash entry. In either case, when the entry is made and certificate given, the particular land is segregated from the mass of public lands and becomes private property. In the one case the entry is complete when the money is paid; in the other when the required proofs are furnished. In neither can the patent be withheld if the original entry was lawful.
“The power to tax exists as soon as the ownership is changed, and this is effected when the entry is made on the terms and in the modes allowed by law. If this were not so, those who, through the bounty of Congress, get a title to the soil, without money, would enjoy higher privileges and be placed on a better footing than the great body of persons who, by the invitation of the government, purchase lands with money. Such a discrimination could never have been contemplated by Congress.”
To the same effect see Wisconsin Railroad Co. v. Price County, 133 U. S. 496, 505, 10 S. Ct. 341, 33 L. ed. 687; and Bothwell v. Bingham County, 237 U. S. 642, 35 S. Ct. 702, 59 L. ed. 1157.
Pursuant to the annexation petition, the land of appellee and the land of others, comprising at least 3,290 acres, were annexed to the original drainage district and brought under the operation of the act creating it. The landowners voluntarily asked for the privilege of becoming subject to all its provisions. In effect they asked for the assessment of benefits on their land and that they should become subject to the provisions of the act just as the land contained in the original district. The commissioners of the drainage district assented to their request, and the county court acted upon it and changed the formation of the district and the improvements to be made thereunder in a substantial way. In the very nature of things the added district imposed a very much, larger expense- upon the property owners of the whole district in order to afford protection to the lands of appellee and others who desired to be brought undeir the provisions of the act creating the drainage district and to participate in the benefits to be derived therefrom. It.was necessary to- issue a very much larger bonded indebtedness in order to accomplish this purpose. The property owners in the original district assumed the larger additional indebtedness, relying upon the acts and conduct of the petitioners. By petitioning for the annexation of their lands to the district, appellee and others declared that they would submit themselves to all the responsibilities and burdens imposed by the original act. They purposely caused the authorities to believe this as a matter of fact. Belying upon their acts and conduct, the commissioners largely increased the bond issue and expended money in the construction of the improvements in the amended district so as to reclaim and protect the lands of appellee and the other petitioners for the annexation from the floods. They permitted their lands to be assessed in June, 1919, after they had become the beneficial owners of them. In 1922 the commissioners, under the belief that the old assessments had become unequal, made a complete reassessment of the benefits against all the lands of the district, including those who had petitioned for the assessment. They proceeded with the work under the amended plans, and appellee and other landowners similarly situated enjoyed the benefits. To now permit them to deny the assurance given by their own acts and conduct, which was continued during the progress of the work, would work a fraud upon the drainage district and the landowners situated within its original boundaries, and this -cannot receive the sanction of law. The drainage district and the commissioners thereof had no reason to believe that the petitioners for the annexation would allege any invalidity in the law which they were asking to have extended for the protection of their land. The drainage district and all interested under the original act have been'misled by the affirmative acts and conduct of appellee and others petitioning for the annexation of their lands to the district.
Hence we are of the opinion that appellee and those similarly situated are estopped from attacking the validity of the annexation proceedings' and the assessment of benefits against their land authorized for the construction of the drainage ■ district and levees contemplated under the act. Having expressly consented to the taxation of their land after they had become the beneficial owners thereof, and the drainage district having acted thereon and made large expenditures in reliance upon their consent, such consent cannot be withdrawn.
There is, however, no element of estoppel in the case against the St. Francis Levee District; for appellee, neither by his declaration nor conduct, did anything to induce the board of directors of the St. Francis Levee District to act in relation to the inclusion of his land within such district and to make an assessment of benefits thereon. If his land and the lands of others similarly situated are in the district and have become subject to an assessment of benefits for levee purposes, this results from the operation of law and not from any act or conduct of appellee and other landowners similarly situated.
It is not claimed that there is an act of Congress allowing* the lands in controversy to be assessed for levee purposes as are the other lands in the district. The St. Francis Levee District was created by the Legislature of 1893, and the powers of the board of levee directors are contained in that act and the acts supplementary and amendatory thereto. Section one of the original act provides that that part of the area of the St. Francis basin within the State of Arkansas is the territory included in the district. Acts of 1893, p. 24. The act contemplates an annual assessment of all the lands in the district subject to special assessment for levee purposes. The record shows that the action of the Mississippi River, which is on the eastern boundary line of the district, continually causes changes to be made in the improvement district. The channel of the river is continually shift ing, and, in flood time, large portions of the levee are frequently destroyed and have to he replaced. The banks of the river itself are continually changing, and every overflow causes unexpected changes in the channel of the river, in the banks, and in the levee.
The record shows, that the plans for constructing the levees are of necessity constantly being revised to meet the changed conditions, and that the levee has not been constructed up to the standard prescribed by the United States.' In short, the changed situations caused by the flood waters make necessary a revision of construction plans so that no part could be completed according to the standard prescribed by the United States before it again became necessary to revise the plans. Indeed, the court will take judicial notice of the length, width and depth of the Mississippi River and the encroachment of the river upon the lands adjacent to it in times of flood. The court will also take judicial notice of the vast area of territory of the United States which is drained into the Mississippi River, and- the result of the action of the river in flood times upon its banks and the levees along the banks. When all the matters are considered, it is perfectly evident that the levee in question has never become a complete improvement within the meaning of the Lee case. To so hold would place a too limited or restricted meaning upon the word “complete.” The expression “completed improvement” is a relative term, and its meaning depends upon the connection in which it is used when read in the light of the object to which it refers. It was intended by the framers of the St. Francis Levee a'et and the acts amendatory thereto that all lands within the boundaries of the district should fall under the provisions of the act as soon as they come to be privately owned. There has been no act of Congress allowing the lands of the United States upon which no final certificate has been issued to become subject to special assessments for levee taxes, as was the case in Pierce v. Drainage District No. 17, 155 Ark. 89, 244 S. W. 342. Hence as long as the lands now owned by appellee belonged to the United States they were not subject to special assessment f'or levee purposes under the doctrine of the Lee case. When the final certificate was issued, however, the naked legal title only remained in the United States and the equitable title was in the grantee. The lands fell, by operation of law, within the provisions of the act creating the St. Francis Levee District,- and were subject thereafter to the annual assessments of levee taxes just as were all the other privately owned lands in the district.
The flood waters of the. Mississippi River come down with resistless force, and the consequent changes in its channel and the resultant encroachment on its levees make their construction and maintenance a continuing project, which, in the very nature of things, can nevetr be completed.
The result of our views is that the decree of the chancery court will be reversed, and the cause will be remanded with directions to dismiss the complaint for want of equity. It is so ordered. | [
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Smith, J.
At the general election held in 1936, Amendment to the Constitution, now bearing the number 23, was adopted. It reads as follows:
“Section 1. A Board to be known as ‘The Board of Apportionment,’ consisting of the Governor (who shall be chairman), the Secretary of State and the Attorney General, is hereby created, and it shall be its imperative duty to make apportionment of representatives and senators in accordance with the provisions hereof; the action of a majority in each instance shall be deemed the action of said Board.
“Section 2. The House of Representatives shall consist of one hundred members and each county existing at the time of any apportionment shall have at least one representative; the remaining members shall be equally distributed (as nearly as practicable) among the more populous counties of the staté, in accordance with. a ratio to b,e determined by the population of said counties as shown by the federal census next preceding any apportionment hereunder.
“Section 3. The Senate shall consist of thirty-five members. Senatorial districts shall at all times consist of contiguous territory, and no county shall be divided in the formation of such districts. ‘The Board of Apportionment’ hereby created shall, from time to time, divide the state into convenient senatorial districts in such manner as that the Senate shall be based upon the inhabitants of the state, each senator representing, as nearly as practicable, an equal number thereof; each district shall have at least one senator.
“Section 4. The Board shall make the first apportionment hereunder within ninety days from January 1, 1937; thereafter, on or before February 1 immediately following each federal census, said Board shall reapportion the state for both representatives and senators, and in each instance said Board shall file its report with the Secretary of State, setting forth: (a) the basis of population adopted for representatives; (b) the basis for senators; (c) the number of representatives assigned to each county; (d) the counties comprising each senatorial district and the number of senators assigned to each, whereupon, after thirty days from such filing date, the apportionment thus made shall become effective unless proceedings for revision be instituted in the Supreme Court within said period.
“ Section 5. Original jurisdiction (to be exercised on application of any citizen and taxpayer) is hereby vested in the Supreme Court of the state: (a) to compel by mandamus or otherwise the Board to perform its duties as here directed, and (b) to revise any arbitrary action of or abuse of discretion by the Board in making any such apportionment; provided, any such application for revision shall be filed with said court within thirty days after the filing of the report of apportionment by said Board with the Secretary of State; if revised by the court, a certified copy of its judgment shall be by the clerk thereof forthwith transmitted to the Secretary of State, and thereupon be and become a substitute for the apportionment made by the Board.
“ Section 6. At the next general election for state and county officers ensuing after any such apportionment, senators and representatives shall be elected in accordance therewith and their respective terms of office shall begin on January 1 next following. At the first regular session succeeding any apportionment so made, the Senate shall be divided into two classes by lot, eighteen of whom shall serve for a period of two years and the remaining seventeen for four years, after which all shall be elected for four years until the next reapportionment hereunder.”'
Appellant, Butler, filed in the Pulaski circuit court a suit against the members of the Democratic State Committee in their collective capacity, which, reads as follows:
“Petition for a Writ of Mandamus.
“The petitioner respectfully shows to the court that he is a member of the Democratic Party in the state of Arkansas and is a qualified elector of St. Francis county.
“On March 30, 1937, the Board of Apportionment of the state of Arkansas submitted its report to the Secretary of State in compliance with the requirements of Amendment No. 23 to the Constitution of Arkansas, a certified copy of which report is attached hereto as a part hereof.
“On January 4, 1941, the federal bureau of the census promulgated the final population figures of the 1940 census in Arkansas by counties’.
“On January 21, 1941, the Board of Apportionment submitted its report to the Secretary of State in compliance with Amendment No. 23 based on the census of 1940, a certified copy of which is attached hereto as a part hereof.
“The petitioner is an elector in senatorial district No. 33 as described in the report of the Board of Apportionment of January 21, 1941.
“W. L. Ward was duly elected senator from the senatorial district composed of St. Francis and Lee counties at the general election held in November, 1940, and the defendants-claim that he will be a member of the Senate in 1943 by virtue of such election.
“The first general election for state and county officers following the new apportionment will be held in November of this year. The Democratic Party will hold a primary election on the 28th day of July, 1942, to select party candidates to run in such general election. The petitioner proposes to run in the primary election as a candidate for the office of state senator, and to this end he tendered his party loyalty pledge to the Democratic State Committee in compliance with § 37 of the rules of the party. The committee wrongfully rejected liis pledge and refused to permit Mm to file it. The petitioner is without remedy except by mandamus.
“Wherefore the petitioner prays for a writ of mandamus directed to the Democratic State Committee commanding it to accept and file his party loyalty pledge as the rules of the Democratic Party require.”
The relief prayed was denied, from which order and judgment is this appeal.
This suit is predicated upon the assumption and allegation that the Board of Apportionment, created by the amendment, performed the duties imposed upon it by the amendment, by making an apportionment of representation in both the House of Representatives and the Senate in 1937, but that the Board failed to discharge its duties in this behalf after the 1940 census had been taken.
An intervention has been filed by a citizen of Wood-ruff county, in which it was prayed that mandamus be granted compelling the Board of Apportionment to function and to perform the duties imposed upon it by the amendment by redistricting the state for senatorial representation.
Construction of the amendment is, of course, required to dispose of these contentions; and we proceed with its construction. The« purpose of the amendment was, of course, to secure equal and fair representation in the General Assembly upon the basis of proportionate population. It was recognized that a census of the state’s population would be taken by the federal government every ten years, and it was contemplated and required that the adjustment or apportionment of representation should be based upon this census, and it was made the imperative duty of the Board of Apportionment to make apportionment of representatives and senators after the taking of each federal census. No discretion was vested in the Board as to whether this duty should be performed. The duty is mandatory, and by § 5 of the amendment original jurisdiction was vested in the Supreme Court to compel, by mandamus or otherwise, the Board to perform this duty. It is further provided by § 5 of the amendment that, if the Board, in the performance of the duties imposed by the amendment, should act arbitrarily, or abuse its discretion, application for a review of that action might be made to the Supreme Court within thirty days after the Board had filed its apportionment report with the Secretary of State.
In the discharge of these duties the Board made and filed' a report of its proceedings with the Secretary of State under date of January 21, 1941. This report assigned one representative to each of certain named counties, two representatives to certain other counties, three representatives. to each of four named counties, and seven representatives to one county. The report divided the state into thirty-four senatorial districts, and named the counties composing each district, and gave to each district one senator, except one. district, which was given two senators. The report concludes with the statement that “The Board in submitting this reapportionment report, after giving the- matter careful consideration, was of the opinion that the above was the most satisfactory solution and that it complies with the provisions of Amendment No. 23 to the Constitution of the state of Arkansas.”
The result of this report is that it is identical with the apportionment of both representatives and senators made in 1937.
The recital of these facts disposes of the prayer of the intervention that the Board be required to make a reapportionment. It has done so. The report is based upon the finding that there had been no such change or shift in the population of the respective counties of the state as to require a redistribution of representation either in the House or Senate, and the apportionment made in 1937 was permitted to stand without change.
Suit was filed by citizens of certain counties, in which it was alleged that this report was arbitrary, in the apportionment of representation in the House of Representatives in that it failed to take account of the shifts in population shown -by the 1940 census.
In the exercise of the original jurisdiction conferred on the Supreme Court by the amendment, these suits were heard and the finding’ was made that the report of the Board, as filed with the Secretary of State, was arbitrary, in that proper account had not been taken of the relatively greater increase of population in the counties of Mississippi and Poinsett, and each of those counties was awarded an additional representative, at the expense of Union and Lonoke counties, whose representation in the House, under the Board’s report, was found to be relatively greater than it should have been. Shaw v. Adkins, Governor, 202 Ark. 856, 153 S. W. 2d 415.
After the Board of Apportionment had made its report on January 21, 1941, the presiding officer of the Senate announced that on February 13, 1941, he would divide the Senate into two groups, one to be composed of eighteen senators who would thereafter serve for two years, and another group of seventeen senators to serve for four years. Suit was brought to enjoin the presiding officer of the Senate from taking that action, and an injunction was granted, which decree was affirmed on the appeal to this court. Bailey, Lieutenant Governor, v. Abington, 201 Ark. 1072, 148 S. W. 2d 176, 149 S. W. 2d 573.
We are convinced that holding is correct, and we reaffirm it; but, in so holding, it was inadvertently stated that there had been no reapportionment making division of senators into new groups necessary to determine their respective periods of service. There was a reapportionment, and a report thereof was filed with the Secretary of State, and a copy of this report, of which we take judicial knowledge, has been filed as an exhibit to appellant’s petition for mandamus. It would have been more accurate in that opinion to have said, as, indeed, the fact is, that no change had been made in the previous apportionment. The old — the first — apportionment, made in 1937, was adopted as the reapportionment under the 1940 census, and this was what was intended when it was said that no new apportionment had been made.
But the fact is that the Board of Apportionment did make a reapportionment under the 1940 census. This apportionment was found to be arbitrary, within the meaning of § 5 of the amendment, in so far as it related to the distribution of representation in the House of Representatives, and that action was reviewed and reversed as above stated. But no complaint was made as to the reapportionment of senatorial representation.
The insistence of appellant is that the very genius of Amendment No. 23 is that the senatorial body should be entirely reorganized on the basis of a new apportionment of senatorial districts following each federal census, and that no member of the old Senate, by virtue of such membership, would be a member of the reorganized Senate, even though the term of office for which he was •elected had not expired, and that a new senatorial body, which is to come into existence every ten years under the operation of Amendment No. 23, is to be recruited from new senatorial districts created by successive apportionments.
This would be true had it been found by the Board of Apportionment that shifts in population shown by the 1940 census required a new division of the state into senatorial districts to equalize representation in that body in proportion to the population of the various counties as shown by that census. But the amendment does not require a geographical change in the senatorial districts after each census. The amendment does require that this shall be done if shifting population makes that action necessary to afford just, equitable and equal representation. But the Board of Apportionment found that action was not required for that purpose, and that finding was not questioned except in the case of representation in the House of Representatives.
If any change in the geographical boundaries of any of the senatorial districts is made, an entirely new Senate must be elected, in which event the newly-elected senators would be divided by lot into two classes, one to serve for two years, the remainder for four years, as required by § 6 of the amendment. This geographical change in the boundaries of the senatorial' districts must be made after each federal census, if it be found by the Board of Apportionment, as an original proposition, or by this court on appeal from the action or inaction of that Board, that such rearrangement or reapportionment is necessary to afford the just and proportionate representation which the amendment contemplates and requires.
But if it be found, as the Board did find, that no geographical changes were necessary to equalize the representation, then no necessity existed under the amendment to make changes in the boundaries of the senatorial districts, in which event all senators would serve for the respective terms for which they had been elected. The length of these terms is fixed by § 3 of art. 5 of the Constitution, at four years, and this provision of the Constitution need not be ignored unless a change is required in the boundaries of senatorial districts to equalize representation so that an entirely new Senate must be elected. In other words, the amendment requires a reapportionment after each census, but to accomplish that result it is not required that the state be redivided, unless that action is found necessary to accord proportionate representation. If in making the reapportionment this redivision of the state into senatorial districts is found necessary, an entirely new Senate must be elected, whose members shall, upon convening, divide themselves into two classes as required by § 6 of the amendment.
These new districts might continue indefinitely, and would so continue unless population shifts, require geographical changes to afford proportionate representation to the various counties. Now, the amendment requires the Board of Apportionment to ascertain this fact after each census, and if population shifts require a rearrangement geographically to afford proportionate representation, such changes must be made. But if population shifts do not require this rearrangement or reapportionment to afford ratable and just representation, then no necessity exists to change geographical boundaries, and the districts would remain unchanged.
As has already been said, the Board of Apportionment, by its report of January 21, 1941, found that the necessity did not exist to make geographical changes to afford the proportionate representation required by the amendment, and, therefore, none was made, and that is what is meant in the opinion in the case of Bailey v. Abington, supra, when it was said that no apportionment was made. An apportionment had been made, but no geographical changes in the boundaries of the various senatorial districts was made, and there was, therefore, no occasion for the senators to draw for length of terms of office.
It follows, from what has been said, that the judgment of the circuit court denying mandamus must be affirmed; and the intervention of the citizen from Wood-ruff county will be dismissed. | [
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McHaney, J.
Appellant is a school-teacher, and, under date of April 27, 1925, entered into a written contract with appellee, through four of its six directors, to teach its school for nine months at $100 per month, to begin on September 14. Appellee is a special school district created by special act of the Legislature (act 110 of 1919), with six directors. In January, 1925, the county board of education of Monroe County made an order detaching the lands of J. C. Guthrie and Jess Childress from Common School District No. 30 of Monroe County, .and attaching same to appellee district, thereby making-said Guthrie and Childress patrons of appellee’s school. A month or so thereafter two of the regularly elected directors of appellee moved out of the district, leaving J. A. Sain, Willie Davis, 0. L. Wlúíted aud-J. L. Ferguson on the board, Whitted being the secretary. Shortly after the removal of the two members the remaining four held a meeting, at which all were present, for the purpose of filling the vacancies on the board, at which said Guthrie and Childress were elected, but in which Whitted did not participate, he claiming they had no right to act as directors. One meeting of the board as then constituted was thereafter held prior to April 25, in which Whitted and Sain refused to participate. On Saturday night, April 25, a meeting was held at the sehoolhouse, at which all the directors were present, but again Whitted and Sain refused to sit in with the other four or to participate in the meeting’ in any way. At this meeting the other four agreed to employ appellant for the time and on the terms above stated. .On the next day, Sunday, the contract was reduced to writing by the four members of the board, signed by them, and delivered to appellant on Monday, the 27th, when she signed it. The terms of the contract were fully agreed upon at the Saturday night meeting.
Appellant is related to two of the members of the board within the fourth degree of consanguinity, and presented a petition to the board, prior to her employment, purporting to contain two-thirds of the patrons of the district, requesting that she be employed as a teacher.
On May 26, 1925, the lands of -Guthrie and Childress were put back in District No. 30, and they thereafter ceased to be connected with appellee district. At the regular school election in May, two other directors were elected on the board, and, on the next 'Saturday, May 29, the new board held a meeting, passed a resolution canceling appellant’s contract, and mailed her a copy thereof on the 30th, which she received in due course, and, on June 8, she advised the board she would not surrender her contract. Another teacher was employed in her stead, and on the 30th day of August, 1926, she instituted this action to recover the whole amount of the salary which would have, accrued to her as damages for the alleged wrongful breach of her contract. During the course of the trial the court ruled, over appellant’s objection, that the petition to the board for her employment, under § 9029, C. & M. Digest, would have to contain two-thirds of all the patrons of the district, counting as patrons both husbands and wives, both parents of children attending school, and that the directors who signed the petition, although patrons, could not be counted in determining whether the petition contained the necessary two-thirds. Thereupon counsel for appellant stated that, in view of this holding of the court, appellant’s petition did not contain two-thirds, and the court, over appellant’s objection, instructed a verdict for appellee, hence this appeal.
Appellant contends that the above ruling’s of the court are erroneous, and call for a reversal of the case. Appellee contends that the court correctly construed the law, but, even not so, that appellant cannot prevail in any event, as she had no valid contract of employment. We will discuss both contentions.
Section 9029, C. & M. Digest, is as follows: “Hereafter all school directors * * * are hereby prohibited from employing any person as teacher in the public schools related to any of them by consanguinity or affinity within the fourth degree, unless two-thirds of the patrons of said school shall petition them to do so.”
Appellant admits that she is related within the prohibited degree, and we are required to construe the last clause of the above section, “unless two-thirds of the patrons of said school shall petition them to do so. ’ ’ Who are patrons of a school within the meaning of the statute? Did the lawmakers intend to require the petition to contain two-thirds of both fathers and mothers of schoolchildren?' Or two-thirds of the heads of families whose children attend siich school? We are of the opinion that the statute has reference to the heads of-families, on whom the law primarily places the responsibility of support and education of their minor 'children, generally the father, and, if none, then the mother, or guardian, as the case may be, and that both fathers and mothers cannot be counted in determining whether the petition has the required number. There is nothing in the statute that prohibits a director from signing the petition, if he is a patron, and we hold that he may do so. On the question of who is a patron, see Neal v. Bethea, 158 Ark. 403, 250 S. W. 336.
As to the contention of appellee that Guthrie and Childress were not legal directors, and hence no legal contract, it is conceded they were not de jure officers, but we are of the opinion that they were officers d,e facto, and as such, tog-ether with the other two, at a meeting of which all had notice and all attended, but in which two of the six did not participate, could bind the district on this contract, provided the petition contained the requisite number of signatures of patrons. As to who are officers de facto„ in the case of Faucette v. Gerlach, 132 Ark. 58, 200 S. W. 279, this court quoted from Constantineau on the de facto doctrine as follows: “ ‘A person who enters into an office and undertakes the performance of the duties thereof by virtue of an election or appointment, is an officer de facto, though he was ineligible at the time he was elected or appointed, or has subsequently become disabled to hold the office.’ Indeed, it is settled by the current of authority almost unbroken for over 500 years in England and this country, that ineligibility to hold an office does not prevent the ineligible incumbent, if in possession under color of right and authority, from being an officer de facto with respect to his official acts, in so far as third persons are concerned. The reason of the rule is that ‘the eligibility of an officer is as difficult of ascertainment as his actual election, and sound policy requires that the public should be no more required to investigate the one than the other, before according respect to his official position’.”
And the court, in stating the general rule in the same case, said: “The general rule is that the official acts of de facto judicial officers, within the scope of their jurisdiction, are as valid and binding as if they were the acts of de jure officers.” Inland Construction Co. v. Rector, 133 Ark. 277, 202 S. W. 712; School Dist. No. 54 v. Garrison, 90 Ark. 335, 119 S. W. 275.
It is finally contended that the contract was made on Sunday, and is void for this reason. We cannot agree with appellee. The terms of the contract were agreed to on Saturday night, April 25. The evidence of the contract, the written instrument, was drawn and signed by the directors on Sunday, dated Monday, and delivered to appellant and signed by her on Monday. It is therefore not void for this reason. As to whether she sustained any damages is a question for the jury.
The case is therefore reversed, and remanded for a new trial. | [
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Greenhaw, J.
Appellant prosecutes tliis appeal from a judgment of the Sebastian probate court, Greenwood District, allowing the claim of appellee against the estate of Mrs. Matilda Richards in the sum of $478.25, for merchandise, after appellant as administrator of said estate had disallowed the claim.
The claim was filed February 28,1941. The account upon which the claim was based started prior to August 1, 1921, at which time the balance due thereon was $506.03. The last sale to the deceased under this account was in 1933. The account showed numerous payments, with nothing paid after 1936 except in 1938. It is obvious that it was barred by the statute of limitation if the three small payments listed as credits in May, August and September, 1938, were not made. No one testified concerning these payments or credit entries except the claimant, appellee. Appellee was permitted to testify over the objections of appellant that the 1938 payments were made by the deceased and he entered the credits on his books; that the account was correct and the deceased knew what her account was, as he told her the amount of her balance, and that she saw the account.
Appellant contends that this testimony by appellee was incompetent as violative of ^ 5154 of Pope’s Digest which read's as follows: “In civil action, no witness shall be excluded because he is a party to the suit or interested in the iss,ue to be tried. Provided, in actions by or against executors, administrators or guardians, in which judg.ment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate or ward, unless called to testify thereto by the opposite party. ’ ’
He further contends that the mere fact that the alleged 1938 payments were entered on the account and appear as credits is insufficient, standing alone, to prove that these payments were in fact made by the deceased. We concur in both contentions.
In the case of Slagle v. Box, 124 Ark. 43, 186 S. W. 299, this court, in discussing credit indorsements on a note otherwise barred, said: “When payments are relied upon to stop the running of the statute of limitations, the burden of proof’ is on the party alleging it to show by other evidence in addition to the endorsement that the payment was in fact made. Simpson v. Brown-Desnoyers Shoe Co., 70 Ark. 598, 70 S. W. 305; Brown v. Hutchings, 14 Ark. 83.”
In Kory v. East Arkansas Lumber Co., 181 Ark. 478, 26 S. W. 2d 896, this court said: “On the question of limitation, it might be said that with the exception of the notations on the note in question there is nothing to show that.any payment has been made thereon. There is no evidence showing by whom the notations were made, or, indeed, if any payment had been made at all. No witness testified that any payments had been made, and in view of the appellant’s testimony, we do not think the indorsement alone would be sufficient to establish the alleged payments. Slagle v. Box, 124 Ark. 43, 186 S. W. 299; Johnson v. Spangler, 176 Ark. 328, 2 S. W. 2d 1089, 59 A. L. R. 899.”
•Since there was no evidence that the alleged 1938 payments were in fact made except the testimony of appellee, which was incompetent, these credits stand unexplained, and under the above- cases the mere indorsement on the account is insufficient to establish, the alleged payments. The case of Johnson v. Spangler, 176 Ark. 328, 2 S. W. 2d 1089, is in point on both contentions, and is controlling here. That case involved the effect of indorsement of payments on a note, as well as both competent and incompetent testimony concerning the alleged payments. It was held that Spangler, the payee and owner of the note, whose status there was in effect the same as that of appellee here, was precluded by § 4144 of Crawford & Moses’ Digest, now § 5154 of Pope’s Digest, above quoted, from testifying about the payments and credits. Among other things it was there said:
“Objection was made to the testimony of appellee to the effect that payments on the note were made in 1918 and in 1923, but the court overruled the objection tentatively, upon the statement of appellee’s counsel that, if the testimony was not finally shown to be competent, it could be excluded and not considered by the court. The case was tried by the court without a jury. Counsel for appellee asserts that it was his understanding, at the time this testimony was offered, that other testimony would show the payments had been sent to appellee by Johnson, but, when the testimony failed to establish that fact, it was conceded that appellee had given incompetent testimony, in that he had testified to transactions with the ward of the defendant guardian, and that thereafter the court was not asked to, and did not, consider this incompetent testimony, and that this testimony was not considered by the court in the findings of fact made, but that the findings which were made were based upon testimony which was competent, to-wit, the testimony of Davis and Rhodes.
“It is conceded that most of the testimony given by appellee was incompetent, as being in violation of the statute quoted above, but it is insisted that this testimony was not considered by the court, and that there was sufficient competent testimony to show a payment on the note by Johnson within five years of the date of the institution of this suit.
“The competency of the testimony of the witnesses Davis and Rhodes is not questioned, and their testimony, if credited, as was done by the court, shows a payment on the note within five years of the date of the institution of the suit, and at a time when the maker of the note was sane.
“Now, if the payment credited as having been made in 1918 could be said to have been shown to have been made by competent testimony, then the note was not barred by. the statute of limitations when the last payment was made in 1923. It was evidently the opinion of the trial court, as reflected by the findings of fact, that the indorsement of the 1918 payment arrested the running of the statute of limitations and formed a new period from which the statute ran. It has been said, however, that ‘where payments are relied upon to stop the running of the statute of limitations, the burden of proof is on the party alleging it to show by other evidence, in addition to the indorsement, that the payment was in fact made.’ Slagle v. Box, 124 Ark. 43, 186 S. W. 299; Simpson v. Brown-Desnoyers Shoe Co., 70 Ark. 598, 70 S. W. 305, Brown v. Hutchings, 14 Ark. 83. As there was no other testimony that the payment indorsed in 1918 had been made except the indorsement itself and the incompetent testimony of Spangler, it must be held that the note was, in fact, barred by the statute of limitations when the payment was made in 1923. ...”
In the comparatively recent case of Graves v. Bowles, 190 Ark. 579, 79 S. W. 2d 995, this court, in reversing the judgment of the circuit court allowing the claim, said: “The appellee testified in this case. He was not called by the adverse party, and most of his testimony was incompetent, and we feel impelled to say that the court in permitting this testimony to be introduced, suffered himself to be influenced thereby. The testimony, as to transactions with the deceased, is violative of § 4144, Crawford & Moses’ Digest, and the cases there cited.”
We, therefore, hold that as there was no evidence that the 1938 payments indorsed on the account had been made except indorsements themselves and the incompetent testimony of appellee, the account was barred by the statute of limitations when the claim was filed. Furthermore, the testimony of appellee as to transactions with the deceased was in violation of § 5154 of Pope’s Digest.
Since this cause appears to have been fully developed, the judgment is reversed and the cause dismissed. | [
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Smith, J.
Appellee recovered a judgment for $500 to compensate.an injury which, according to the testimony offered in her behalf, was occasioned by -drinking a part of a bottle of Coca-Cola in which there were particles of chipped glass.
Several errors are assigned and discussed for the reversal of this judgment; but only one of these appears to be of importance. This assignment relates to tbe giving of an instruction numbered 7, which reads as follows: “If you find from a preponderance of the evidence in this case that the said Carmon Mooney drank the Coca-Cola as alleged, and that there was glass in said Coca-Cola as alleged, and that she became sick or injured by reason of having drunk and swallowed said glass, or cut her mouth, as alleged, then you are instructed that this evidence is sufficient to make a prima, facie case of negligence against the defendant company, and shifts the burden of proof on the defendant company to prove that it was not negligent in cleansing, refilling and inspecting the bottle, and if you find that the most modern machinery was used in the cleansing and refilling and inspecting the bottle this is not sufficient alone to meet the burden of proof cast upon the defendant company and overcome the prima facie case.”
We have recently condemned similar instructions as constituting a charge upon the weight to be given testimony. The instruction told the jury that the presence of glass in the bottle made a prima facie case of negligence and shifted the burden of proof on the defendant. Numerous cases have approved instructions to that effect. But the instruction proceeds to say that proof of the use of the most modern machinery in cleansing, refilling and inspecting the bottles is not sufficient alone to meet the burden of proof cast upon the defendant and overcome the prima facie case.
This, we think, was a question of fact for the jury, and not one of law for the court.
In condemning a similar instruction in the recent case of Coca-Cola Bottling Company of Southeast Arkansas v. Bell, 194 Ark. 671,109 S. W. 2d 115, we said: “This instruction declares as a matter of law what should have been submitted to the jury as a question of fact, that is, whether the testimony as to the care used by the manufacturer had overcome the prima facie presumption arising from the presence of the fly in the bottle. This instruction tells the jury as a matter of law that this testimony as to care in bottling and inspecting ‘is not alone sufficient to meet the burden of proof cast upon the defendant and overcome the prima fade case.’ It was for the jury to find, and not for the court to say, whether the testimony had overcome the prima fade case of negligence arising from the presence of the fly in the bottle.”
For the error in not permitting the jury to decide the question of fact whether the testimony offered by defendant had overcome this presumption the judgment must be reversed, and the cause remanded for a new trial, and it is so ordered. | [
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Hart, C. J.
Counsel for appellees seek to uphold the decision of the chancery court as to the lands colored red on the map under our statute making payment of taxes under color of title for seven years constructive adverse possession of wild and unimproved lands. The Legislature of 1899 passed the following act:
“Unimproved and uninclosed land shall be deemed and held to be in possession of the person who pays the taxes thereon if he have color of title thereto, but no person shall be entitled to invoke the benefit of this act unless he and those under whom he claims shall have paid such taxes for at least seven years in succession, and not less than three of such payments must be made subsequent to the passage of this act.” (Crawford & Moses’ Digest, § 6943).
This statute has been frequently construed by this court, and it has been held that, under the statute, limitations commence to run from the date of the first payment of taxes, and the statutory bar is complete at the end of seven years from that date, provided seven payments have been made in succession, and three of them subsequent to the passage of the act. Updegraff v. Marked Tree Lumber Co., 83 Ark. 154, 103 S. W. 606; Taylor v. Leonard, 94 Ark. 122, 126 S. W. 387; and Greer v. Vaughan, 96 Ark. 524, 132 S. W. 456.
The Bradley Lumber Company purchased these lands at tax sale land received a tax title thereto. It is conceded that the tax deed is void, hut it is claimed that it gave the Bradley Lumber Company color of title, and that it acquired title under the statute above set out by payment of taxes under color of title on the land for seven successive years, the same being wild and unimproved. This would be true if there was nothing else in the case.
The record, however, shows that the Southern Lumber Company purchased the timber on said land from D. Y. Stanley, who had the'paper title to the lands at . that time; and on June 24, 1905, D. V. Stanley and wife executed a timber- deed to the Southern Lumber Company to the pine timber on -said lands. The payment of taxes by the Bradley Lumber Company was made after the execution of the timber deed by D. Y. Stanley and wife to the Southern Lumber Company, and the record shows that the Southern Lumber Company had paid taxes on the timber embraced in its timber deed ever since the execution of said deed. This prevented the Bradley Lumber Company from acquiring title under the act of 1899 above set forth. This court has said that the statute in itself is not a statute of limitations. It only declares that the land shall be deemed to be in possession of the person paying taxes thereon under color of ' title. It only makes the payment of taxes under the conditions named in the act a constructive possession: and it is only by applying thereto the general statute of limitations that such possession, like actual possession, can ripen into title by limitation. Taylor v. Leonard, 94 Ark. 122, 126 S. W. 387.
In Greer v. Vaughan, 96 Atk. 524, 132 S. W. 456, it was said that a compliance with the provisions of this statute constitutes in such person paying said taxes upon such character of land mentioned therein a constructive possession which, like adverse possession, ripens into a perfect title and creates in such person a complete investiture of the title thereto.
The record shows that D. Y. Stanley was the owner of the record or paper title of the land colored red on the map, and, on June 24, 1905, executed a timber deed to the Southern Lumber Company to the pine timber growing on said land. The growing trees constituted a part of the realty, and their conveyance by Stanley to the Southern Lumber Company was a conveyance of an interest in the land itself. Graysonia-Nashville Lumber Company v. Saline Development Company, 118 Ark. 192, 176 S. W. 129, and cases cited; and Chicago Land & Timber Company v. Dorris, 139 Ark. 333, 213 S. W. 759.
It is well settled in this State that growing trees may be severed from the land itself, ¡and that the severance is* accomplished by a conveyance of the timber, or by a conveyance of the land with a reservation or exception as to the timber. The ownership of the growing trees, after severance, is to all intents and purposes the same as the ownership of land, and this ownership is attended with all the attributes peculiar thereto. In recognition of this rule, the Legislature of 1905 passed an act for theassessment of timber which has been sold separately and apart from the land on which it stands. Crawford & Moses’ Digest, § 9855. By the execution of the timber deed from Stanley to the Southern Lumber Company, two separate and distinct estates were created. There was no community of interest between the Southern Lumber Company, which became the owner of the timber, and D. V. Stanley, who remained the owner of the land. Each had a separate estate, and each was separately subject to taxation. After the severance from the land by the timber deed, the growing trees became property subject to taxation under art. 16, § 5, of our Constitution, and the Southern Lumber Company assessed them under § 9855 of Crawford & Moses’ Digest, and thereafter paid taxes on them. Thereafter the Bradley Lumber Company purchased the lands at a void tax sale and began paying taxes on them as wild and unimproved lands. It acquired title to the land itself by the payment of the taxes on it under color of title for seven consecutive years, under the principles of law announced in the cases above cited; but, there being no community of interest between the owner of the land and the owner of the growing trees, the payment of taxes on the land fon seven successive years did not give the person paying such taxes any right to or title in the growing trees. The reason is that the owner of the trees under the timber deed and the person paying taxes on the land itself under color of title were paying taxes on separate estates, because each was the subject of ownership and taxation.
By analogy, this principle has been applied in the case of minerals in place. This court, following the general rule, has held that a conveyance of oil or gas in place is a conveyance of an interest in land. Watts v. England, 168 Ark. 213, 269 S. W. 585. In a note to Í40 Am. St. Rep., at page 952, it is said that, after severance, the surface and minerals are held by separate and distinct titles in severalty, and each is a freehold estate of inheritance. Each may be conveyed by deed or pass by inheritance, and has all of the attributes and incidents peculiar to the ownership of land. Ames v. Ames, 160 Ill. 599, 43 N. E. 592; New Jersey Zinc Co. v. New Jersey Franklinite Co., 13 N. J. Eq. 322; West Point Iron Co. v. Reymert, 45 N. Y. 703; Gill v. Fletcher, 74 Ohio St. 295, 113 Am. St. Rep. 962, 78 N. E. 433; Lillibridge v. Lackawanna, etc. Co., 143 Pa. 293, 24 Am. St. Rep. 544, 22 Atl. 1035, 10 L. R. A. 627; Hutchinson v. Kline, 111 Pa. 564, 49 Atl. 312.
By analogy, the same rule would apply here, and we are of the opinion that the Bradley Lumber Company acquired no title to the timber on the lands colored red on the map by the payment of the taxes on the lands themselves as wild and unimproved lands after the execution of the timber deed by Stanley to the Southern Lumber Company; and of course the Arkansas Lumber Company acquired no better title than its grantor, Bradley Lumber Company.
This brings us to a consideration of the lands colored black and yellow on the map. The Southern Lumber Company acquired title to the growing pine trees on these lands by a timber deed from C. O. Sharp and wife on December 13, 1924. C. C. Sharp at that time had the record or paper title to these lands. These lands were wild and unimproved, and it is claimed that the Bradley Lumber Company had acquired title thereto by the payment of taxes on the lands under color of title for seven successive years before the timber was conveyed by ■Sharp to the Southern Lumber Company. We have examined the record, and do not think it bears out the contention of counsel for appellees. The record shows that the taxes for 1904 were paid by M. L. Gardner, Jr., who was not in the chain of title, and his payment inured to the benefit of the owner by extinguishing the State’s tax lien on the land. France v. Butcher, 165 Ark. 312, 264 S. W. 931. For the years 1905, 1906, 1907, 1908, 1909 and 1910 the record shows that the 'Bradley Lumber Company paid the taxes. In 1911, however, H. L. Sharp paid the taxes, and this prevented the payment by the Bradley Lumber Company for seven years in succession. The tax claimant can only invoke the statute where the payment has been continuous for seven successive years. After that time the taxes appeared to have been paid for the years 1912 to 1925, inclusive, by the owner of the land, and also by the Bradley Lumber Company. The owner of the land appears first as having paid the taxes, and the payment by him extinguished the tax lien of the State; and in no sense could it be said that the payment by the Bradley Lumber Company, after the taxes had been paid by the owner of the land, gave it title to the land 'by continuous payment of taxes under color of title for seven consecutive years, under the act of 1899 above set out, which is § 6943 of Crawford & Moses’ Digest. The Arkansas Lumber Company acquired title to these lands by warranty deed from the Bradley Lumber Company, and, so far as the Arkansas Lumber Company is concerned, it had no greater rights than those possessed by its grantor.
We now come to a consideration of the land colored bine on the map. The chancellor found the title to the timber on this land to be in the Southern Lumber Company. An examination of the record will show that these lands ' are wild and unimproved, and that the Bradley Lumber Company commenced paying taxes on them in 1905, but there was a break in the payment after three years. Thus it will be seen that the Bradley Lumber Company had not acquired title to this land by a continuous payment of taxes 'under color of title for ■seven consecutive years, under the provisions of § 6943 of the Digest. The Southern Lumber Company acquired title to this timber by a deed from C. C. Sharp on the 13th day of December, 1924. He and his grantors had the paper title to the lands, and the record does not show seven years’ continuous payment of taxes in succession by the Bradley Lumber Company, or by any one else, prior to the execution of the timber deed on December 13, 1924. Since the execution of that deed the Southern Lumber Company has paid the taxes on the timber under an ¡assessment- made under % 9855 of the Digest.
The result of our views is that the decree of the chancery court giving the Southern Lumber Company a judgment for the value of the timber cut by the Arkansas Lumber Company on the lands colored blue should be affirmed; and, in so far as the timber on the rest of the lands involved is concerned, the decree of the chancellor should have been in favor of the Southern' Lumber Company for all the pine timber cut by the Arkansas. Lumber Company and judgment should have been rendered in favor of the Arkansas Lumber Company against the Bradley Lumber Company on its warranty for the amount recovered by the Southern Lumber Company against the Arkansas Lumber Company. It follows that the decree must be reversed, and the cause will be remanded with directions to enter a decree in favor of the Southern Lumber Company against the Arkansas Lumber Company for the market value of all the growing pine timber cut by it on the lands described in the complaint, and that the Arkansas Lumber Company should have judgment over against the Bradley Lumber Company for the same amount, and for further proceedings in accordance with the principles of equity and not inconsistent with this opinion. It is so ordered. | [
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Smith, J.
Appellant filed in the court below a petition for a writ of mandamus requiring Joe C. Barrett and Harvey G. Combs, chairman and secretary of the Democratic State Committee, respectively, to certify him as a candidate for the office of state senator from the 28th Senatorial District, of which district Clay county is a part. He alleged that he had been a resident of Clay county for many years; that he is 64 years of age and a qualified elector of that county, and had been all his life a Democrat, and that he is a member of the Democratic Party in Clay county, and that he had complied with all the laws of the state and all the rules of the Democratic Party to become a candidate for the nomination of his party as its candidate for the senate in the district of which Clay county is a part; but notwithstanding these facts the defendants had refused to certify his name as required by the rules of the Democratic Party.
An answer ivas filed, which did not deny any of these allegations, and averred that defendants had refused to certify petitioner’s name because petitioner is legally ineligible to hold the office of state senator by virtue of art. 5, § 9, of the Constitution of 1874, which prohibits any person convicted of the embezzlement of public money or other infamous crime from serving as a member of the General Assembly or from holding any office of trust or profit in this state.
A demurrer was filed to this answer, Avhich Avas overruled, and petitioner’s cause of action was dismissed Avhen he stood on his demurrer, and from that decree is this appeal.
Appellees justify their action by citing the cases of State, ex rel. Attorney General, v. Irby, 190 Ark. 786, 81 S. W. 2d 419; Winton v. Irby, 189 Ark. 906, 75 S. W. 2d 656, and Irby v. Bay, 182 Ark. 595, 32 S. W. 2d 157.
The case first above cited was a quo warranto proceeding to oust petitioner from the office of county judge of Clay county to \Arhich he had been elected, and it was there held that petitioner was ineligible to hold that office because of his conviction in the federal district court of the crime of embezzling postoffice funds, notwithstanding his unconditional and full pardon for that offense by the President of the United ¡States.
It is urged that it would be a vain and useless proceeding to permit petitioner to be a candidate for an office which he could not fill, if he were elected to it.
We cannot anticipate what action the senate might take in the event petitioner were nominated and then elected senator from the district in which he resides. Section 11 of art. 5 of the 'Constitution provides that “Each house (of the General Assembly) shall appoint its own officers, and shall be sole judge of the qualifications, returns and elections of its own members.”
The last of these Irby cases (190 Ark. 786, 81 S. W. 2d 419) was decided by a divided vote of 4 to 3. It is possible, and within the power of the senate, to adopt the view of the dissenting judges, rather than the opinion of the majority, in that case, in which event petitioner would be eligible to serve as a member of the senate.
It was the opinion of the majority in that case that one convicted, in a federal court, of embezzlement of money belonging to the United States, is ineligible to hold any office of trust or profit within this state notwithstanding the Presidential pardon, since the pardon restored merely his civil rights, as distinguished from his political privileges.
It was the opinion of the majority in that case that the disqualification of petitioner to hold office was no part of the punishment for the crime for which petitioner had been convicted and that, therefore, the pardon could not remove his disqualification for holding office.
It was also the opinion of the majority that it was immaterial that petitioner had not been convicted for a violation of a law of this state, and that a conviction in any jurisdiction barred petitioner from holding office as effectively as a conviction for a violation of the laws of this state would have done.
It was the opinion of the minority that all these holdings were contrary to the great weight of authority. It was said in the minority opinion that “It has been held, upon great consideration, that a conviction and sentence for felony in one of the states and the disabilities arising from the same would not come within the inhibition of statutory and constitutional provisions of another state and the disqualifications therein denounced. Grreenleaf on Evidence, 15th ed., § 376.”
It was the opinion also of the minority that the pardon removed, not only the guilt of the one pardoned, but likewise the legal infamy and all other consequences arising out of the conviction, and that it was futile to say that ineligibility'to hold office was not a part of the punishment for crimes denounced by § 9 of art. 5 of the Constitution. The concession appears to have been made in the majority opinion that if ineligibility to hold office was a part of the punishment, this ineligibility was removed by the pardon.
The senate has the power to accept either the majority or the minority view, and its action is beyond the power of review by this court, as the senate is the sole judge of the qualification of its members.
But aside from these considerations, we are of the opinion that the chairman and secretary of the state committee acted without authority in refusing to certify-petitioner as a candidate. Certainly no law of this state confers that power, and we are cited to- no- rule of the party conferring it. Certain it is that the chairman and secretary of the state committee are clothed with no judicial power. Their duties are purely ministerial, and in the matter under consideration are defined by § 58 of the Buies of the Party, which reads as -follows: “Sec. 58. All candidates for United States senator, representative in Congress and all state and district offices shall file the prescribed pledge with the secretary of the state committee and all candidates for county and township offices shall file the prescribed pledge with the secretary of the county committee, not later than 12 o’clock noon on the 90th day before the preferential primary election, and all candidates for municipal offices (including candidates for county and city committeemen) shall file their pledges with the secretary of the county committee and the city committee not later than 12 o’clock noon on the 30th day before the preferential primary election.
“The name of any candidate, who shall fail to sign and file said pledge within the time fixed shall not appear on the official ballot in said primary election.
“The chairman and secretary of the state committee shall certify to the various county committees not later than 30 days before the day of the election the names of all candidates who have complied with the rules herein prescribed, and the name of no other candidate for such office shall be printed on the ballots by the county committee. ”
It was held in the case of Williamson v. Montgomery, 185 Ark. 1129, 51 S. W. 2d 987, that no one could become a candidate for a party nomination for an office without complying with the rules of the party; but it was also held in that case that where the committee or officer conducting a primary election acted fraudulently or in such an arbitrary manner as to prevent a person who, in good faith, sought to comply with the rules, the courts would require the party officers to comply with the party rules. There is no intimation here that the chairman and secretary of the committee have acted fraudulently, but we think they have acted without authority conferred either by the laws of this state or the rules of the party.
Rule 58, above quoted, requires the chairman and secretary to certify the names of all candidates “who have complied with the rules herein prescribed.” The fact stands undisputed that the petitioner has complied with these rules and, having done so, no duty rests upon, nor is there any power vested in, the chairman and secretary of the committee except to perform the ministerial duty of certifying the names of petitioner and all others who have complied with the party rules.
If it be said — and it is said — that the Supreme Court has decided that petitioner is ineligible to hold a public office, it may be answered that this proceeding is not a contest for an office nor’a proceeding to oust one from office. The only question here is whether petitioner has complied with the laws of the state and the party rules sufficiently to become a candidate for office; and the fact is undisputed that he has done so.
If the chairman and secretary of the committee have the right to say that because of the decision of this court petitioner is ineligible to be a candidate for office, they may also say, in any case, that for some other reason a candidate is ineligible. For instance, it has been held by this court in many election contests that one must pay his poll tax; that he must do so after proper assessment in the time and manner required by law, and that otherwise he is not eligible even to vote, and unless he were a voter he could not hold office. So with other qualifications, such as residence. May this question be considered or decided by the chairman and secretary of the committee? It may be that such power can be conferred upon them by laws of this state or the rules of the party; but it is certain that this has not yet been done. If this can be done, and should be done, the door would be opened wide for corrupt and partisan action. It might be certified that a prospective candidate has sufficiently complied with the laws' of the state and the rules of a political party to become a candidate, and, upon further consideration, that holding might be recalled; and this might be done before that action could be reviewed in a court of competent jurisdiction and reversed in time for the candidate to have his name placed on the ticket. It would afford small satisfaction if, after the ticket had been printed with the name of the candidate omitted, he have a holding by the court that the name should not have been omitted.
We are cited to only two cases in point, and in view of the fact that this opinion must be rendered within a week after the submission of the cause, if the petitioner is to have redress which will require that he be certified as a candidate, the time has not been afforded for the investigation which otherwise would have been made.
But these two cases are exactly in point and are consonant with our view that the chairman and secretary of the state committee have only a ministerial duty to perform, and have no right to exclude the name of a candidate because, in their opinion, he is ineligible and could not hold the office, whether that ineligibility arose out of -a conviction for a felony or any other cause which would render him ineligible.
The two cases to which we have referred are Young v. Beckham, 115 Ky. 246, 72 S. W. 1092, decided by the Court of Appeals of Kentucky, and the case of Roussel v. Dornier, 130 La. 367, 57 So. 1007, 39 L. R. A., N. S., 826.
In the first of these oases the facts are so similar and the reasoning so convincing that we quote somewhat extensively from it. The first sentence in the opinion in that case reads as follows: “Paynter, J. The purpose of this proceeding is to compel the Democratic 'Committee to place the name of the appellee, J. C. W. Beckham, on the ballot as a candidate for the office of governor before the Democratic primary election called for May 9, 1903. The question of his eligibility has been raised, and the committee refuses to place his name upon the ballot. The question to be determined from the pleading is whether the governing authority of the party has called a primary election, and, if so, (a) whether the statute authorizes the holding of primary elections to nominate candidates for state offices; (b) whether the committee can refuse to place his name upon- the ballot because they think he is ineligible to re-election; (c) whether, by proceeding in mandamus, the committee may be compelled to place his name upon the ballot used at the primary as a candidate for governor.”
The opinion does not state upon what ground the' committee found Beckham to be ineligible. The facts upon which the committee found Beckham to be ineligible were not in dispute, as the opinion does not state Probably the Democratic State Committee had concluded that a man had aspired to the nomination of their party for the highest office in the state who could not serve if he were nominated and elected. The ground of a date’s ineligibility would be immaterial. It would be unimportant whether he had been convicted of a felony or Avas ineligible for some other reason. If he were ineligible, he was ineligible regardless of the cause of the ineligibility.
The Kentucky court did not consider the correctness of the committee’s finding that Beckham was ineligible to be a candidate. That question was pretermitted and not even referred to, the opinion being based solely upon the question of the power of the committee to exclude the name of a candidate. In holding that the committee did not have this power it was there said: “We are of the opinion that the committee had no right to raise the question of the appellee’s eligibility to re-election to the office of governor. The governing authority of the party has no right to determine who is eligible under the laws of the land to hold offices. It can call primary elections and make proper rules for their government, but has no right to say who is eligible to be a candidate before the primary. The persons who are entitled to vote at the primary are the ones to determine who shall be selected as their candidate for a particular office. If the committee can say who is not eligible to be nominated as party’s candidate for office, they can, on the very last day before the ballots are printed, refuse to allow a person’s name to go on the ballot upon the pretext that he is ineligible, and thus prevent his name from appearing upon the official ballot. They could thus destroy one’s prospect to be nominated, for the rules of procedure in courts are necessarily such that no adequate relief could be afforded the party complaining, if at all, until after the primary election had been held. If the com"mittee or governing authority has the authority to decide the question as to who is eligible to hold an office or be ¡a candidate before a primary election, then they would have a discretion and judgment to exercise that could not be exercised by a mandamus. The most that could be done by such a Avrit Avould be to compel them to act upon the question.”
In the second case above cited the Supreme Court of Louisiana, with equal emphasis, denied the right of a party committee to pass upon the eligibility of a candidate for the nomination of that party as its candidate for office. A headnote in that case reads as follows: “1. A Democratic parish committee has no power tq pass upon the eligibility of candidates for public office, as they are not charged with judicial functions nor clothed with judicial power.” Parish committees in Louisiana correspond with county committees in this state. -
We conclude, therefore, that the chairman and secretary of the state committee exceeded their power in refusing to perform the ministerial duty of certifying petitioner as one who had complied with the laws of the state and the rules of the party, as he admittedly has done.
The decree of the court below will, therefore, be reversed, and the cause will be-remanded with directions to award the writ of mandamus. | [
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Mei-taeey, J.
This case was begun in the Baxter circuit court by the prosecuting attorney of the Sixteenth Judicial .District, filing information charging Ben Port-man, Mrs. Ben Portman, and Steve Highers with being engaged in the operation of an establishment in the town of Ellis, Arkansas, known as “The Chef.” It charged that in said establishment public dancing was allowed, beer and wine sold, and gambling has been carried on; that in said establishment unlawful drinking of intoxicating liquors has been repeatedly carried on, quarrels have repeatedly arisen in and about the premises, affrays, fights and breaches of the peace have repeatedly taken place, in violation of the law of the State of Arkansas, by reason of which said establishment is a public nuisance.
The prayer of the petition was that the establishment be adjudged a public nuisance, and the court issue a temporary injunction ordering such establishment to be closed until such time as a trial may be held and upon a final hearing of this petition the temporary injunction be made permanent.
A copy was served on the appellants and a temporary order granted.
Appellants filed a demurrer alleging that the petition did not state facts sufficient to constitute a cause of action against said defendants, or either of them, or against the Chef Cafe or facts that would entitle the State of Arkansas, or authorize or entitle the court to grant or make an order adjudging said Chef Cafe to be a public nuisance, and the granting of such injunction and the closing of same as a public nuisance.
The court overruled the demurrer and defendants saved their exceptions.
Appellants then filed the following answer: “Now, come the defendants, Ben Portman, Mrs. Ben Portman, and Steve Highers, and each, of them, and without waiving their demurrer, or. their rights, and the rights of each of them, thereunder, but still insisting upon the same, and saving their rights thereunder, for their joint and separate answer and answers state:
“They deny, specifically, each and all, the allegations of the petition for temporary and permanent injunction for the closing of the 4,Chef Cafe,’ as a public nuisance. They, and each of them, deny that they, or either of them, have been guilty of the acts of misconduct alleged in the operation of said cafe or that any unlawful operation of same has been permitted by them, or that said cafe has become, or is, a public nuisance, as alleged by said petition.”
The court made a finding of facts and entered judgment declaring that in said establishment beer and wine are sold and public dancing permitted; that gambling has been carried on and has been permitted to be carried on with cards, dice and punchboards; that the selling of beer and wine, together with the unlawful gambling, constitutes said establishment a public nuisance. The court ordered said nuisance to be abated for the period of one year; enjoined and restrained defendants from selling beer and wine or any other intoxicants in or about said establishment for a period of one year. The court enjoined and restrained defendant, Steve Highers, from occupying any part of said building and from having ingress or egress to any part of .said building other than the cafe, which is accessible to the general public; that this order shall extend to any agent, attorney, employee, lessee or assignee of any and all of the defendants. The court ordered that defendants, Ben Portman and Mrs. Ben .Portman, be allowed to continue the operation of the cafe business, but that no gambling be carried on; that they be allowed a period of two weeks in which to dispose of such stocks of wine and beer as might be on hand, but enjoined and restrained them from selling beer and wine and any other intoxicant in or about said building after the two weeks. The court further ordered that the basement room, which has been occupied by Steve Highers be by the sheriff padlocked and barred from ingress and egress of any and all persons save officers of the court, acting under authority of the court.
Motion for new trial was filed and overruled by the court, to which ruling defendants excepted. Defendants prayed and were granted an appeal to the supreme court, and the case is now here on appeal.
The law under which appellants were prosecuted in this case has been construed several times, and it would serve no useful purpose to review all those decisions. But in the case of Foley v. State, 200 Ark. 521, 139 S. W. 2d 673, the act under which the prosecution was had and the decisions of this court were reviewed. The constitutionality of the act was discussed, and the act was upheld. In that case the appellants contended that act 118 of 1937 was unconstitutional, first,' because jurisdiction is therein conferred on the circuit and chancery courts to enforce the act, whereas chancery courts alone have such power. The court said that this court sustained act 109 of 1915, which conferred jurisdiction upon circuit and chancery courts to abate nuisances, as defined in said act.
The appellants in this case say that the state showed, and appellants, admitted, that certain punchboards and an Indian board were exhibited at the 'Chef Cafe three months prior to the date of the filing of the petition, but none thereafter. The officers took charge of the punch-boards and Indian board and took them away, and of course they were not there afterwards.
It is also contended .by appellants that the testimony of Rudolph Mallonee and his wife is unworthy of belief. But the credibility of witnesses was passed on by the court below, and we do not pass on their credibility nor the weight of their testimony. There is, however, sufficient evidence, without the testimony of the Mallonees, to justify the finding of the court.
The evidence shows that Mrs. Portman, one of appellants, owned the building, and that Ben Portman, her husband, owned the cafe. He testified that he had three punchboards for about a month before they were taken up, and that he and his wife punched most of the punches that are gone, as a matter of amusement. He did not say who punched the others, but he testified that the deputy prosecuting attorney had told him that the boards were all right, and that most every place in the county was operating them, and that it would be all right to shake dice for merchandise, punches on punchboards, or meals, and that he could see nothing wrong in it. This evidence was denied by the deputy prosecuting attorney. Port-man further testified that he gave a free punch with each dollar purchase and a shake of the dice, if they wanted it, to see whether they got two punches or none. If they got a punch that called for anything, they were paid in merchandise, no money changed hands.
It would make no difference whether they gambled in money or merchandise, it would certainly be gambling,' if they did what appellants say they did. He further testified that he had a permit to sell beer and wine; that he had a nickelodian which furnished the music for dancing; that couples were permitted to dance as long as their conduct was proper.
It is true that appellants testified that there was no gambling, but they also testified that customers would shake dice and gamble for meals; that is, if the customer won he received his meal without paying for it, and if he lost, he paid for two meals. ■
The evidence, we think, is ample to show that there was gambling and dancing and drinking at the restaurant. Appellants kept an instrument to make music for customers to dance by. Moreover, it was the province of the lower court to pass on the credibility and the weight to be given to their testimony.
The order of the court permitted Mr. and Mrs. Port-man to continue the operation of the cafe business, but prohibited gambling in said building. They were allowed two vreeks within which to sell and dispose of such stocks of wine and beer as they had on hand, and they were enjoined from selling and allowing to be sold beer and wine or any other intoxicant in and about said building.
The court stated in his finding of facts that he was going to make an order closing the establishment for the period of one year and going to make an addenda to this order that the establishment be operated as a restaurant, and that the social fiancing 'may go on as long as it is carried on right and lawfully, and the addenda will be to the further effect that while this building can be used for a restaurant, the basement and this gambling room will be looked and olosed for one year. Tbe court further stated: “It is possible that the court will consider a motion to modify the order as to this particular room, if satisfied gambling will not go on, or be permitted, in it.”
We have carefully examined all of the testimony, and we are of the opinion that there was ample evidence to authorize the court to find that gambling, dancing and the sale of intoxicating liquors was going on in the restaurant and to justify the order of the court.
The judgment of the court is, therefore, affirmed. | [
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Humphreys, J.
Two suits were brought to tbe October, 1925, term of the circuit court of Greene County, First Division, by the administrator of the estates of S. E. Piety and Noble Piety against appellees to recover damages . for shooting and killing the Pietys. S. E. Piety was killed instantly, and suit was brought for the benefit of his widow and next of kin under § 1075 of Crawford & Moses’ Digest. Noble Piety lived for an hour after he was shot, and suit was brought for the widow and next of kin under § 1075 of Crawford & Moses’ Digest and for the benefit of his estate under § 1070 of Crawford & Moses’ Digest. Woosley was joined as a defendant, on the theory that, at the timo the shooting occurred, Stepp was engaged in cutting hay for him, and that the killing of the Pietys occurred while he was acting for Woosley as his servant and employee in attempting to cut the hay. The suits were tried together, resulting in a judgment in each case for appellee, H. W. Woosley, and a judgment against Stepp in favor of appellant for $300 for Noble Piety’s estate and a judgment in favor of appellant for $1,000 for the benefit of the widow and next of kin of S. E. Piety, from which appellant has prosecuted an appeal to this court.
W. W. Stepp was the manager of a farm in Greene County owned by H. W. Woosley, upon which S. E. Piety resided as a tenant, with his wife and four children, Noble being twenty-one years of age, and the oldest child. S. E. Piety had about one hundred acres of the farm rented, and claimed to have rented the meadow or hayfield on the place known as the Collins hayfield. Woosley and Stepp claimed that Piety had not rented the Collins hayfield and was not entitled to cut the grass on same. Stepp, as manager and employee of Woosley, attempted to cut the hay with a team and mower, and, after he had made three rounds, S. E. Piety and his sonj Noble, came to the field and protested against Stepp cutting the hay. A fight ensued between Stepp and S. E. Piety, each knocking the other down, after which Stepp hastily retreated to the house occupied by Mrs. James F. Sanders, in a woods-lot near the hay-field. Stepp was boarding there. After he left the Pietys they unhitched the team and drove it into the woods-lot and tied the horses. Stepp procured a single-barrel shotgun and went to the place where the Pietys had tied or were tying the horses. Mrs. S. E. Piety testified that Stepp was gone only a short time, and, when he came back, he started around the horses toward Mr. Piety, at which time Noble stepped out and begged him not to shoot his father, whereupon he shot the boy; that, when he shot the boy, Piety ran toward Stepp, who started back toward the house, working with the gun all of the time, and, when they got up towards the woods, Stepp turned toward Piety, who then turned to run, and shot him in the back, and, as quick as he could reload the gun, shot him again in the shoulder; that, after going to the house again, he returned and got the team.
W. W. Stepp testified that S. E. Piety ordered him out of the hay field, and, while discussing the matter, struck him; that he got up and backed away, Stepp following ; that he got an opportunity to knock Piety down; that, when Piety got up, he reached back and got the hoe out of Noble’s hand, whereupon witness ran across the cotton patch and jumped a fence; that S. E. Piety struck at him a time or two with the hoe, and he ran on to the house; that he looked back and saw the Pietys unhitch the team and drive it into the woods-lot; that they went back toward.the mower, so he decided to go get the team and come back home; that he procured a gun, and that when he got within one hundred feet of the team, he requested the Pietys to leave him alone, as he was going to get his team and go home; that the Pietys lined up, S. E. Piety in front, Noble in the center, and Mrs. Piety in the rear; that the father and mother advised Noble to cut witness in two; that, when witness reached for his lines, Noble struck at him with a hoe, at Avhich time he shot Noble, and ran toward thehouse; that Piety followed, and, when close upon Avitness, he turned and shot Piety; that witness then got his team, and that he and his son went to town.
In the course of the trial Woosley Avas permitted, over the objection of appellant, to testify to transactions and conversations occurring between S. E. Piety and himself relative to the hay and hay field Avhich Piety claimed to have rented. W. W. Stepp was permitted, over the objection of appellant, to testify relative to transactions and conversations had Avith both S. E. Piety and Noble Piety'in reference to the hay field and the hay.
Appellant’s first contention for a reversal of the judgment is that the court erred in giving instruction number 1, on its oavu motion, which is as follows:
“It is conceded that Stepp was in the employ of Woosley, and that he was acting for Woosley as his servant and employee in attempting to cnt the hay. If you find, from a preponderance of the evidence, that, while attempting to cut the hay, Piety and his son, or either of them, claimed the hay land and attempted to resist Stepp or prevent him from cutting the hay, and that, as a result of this attempt to cut the hay and as a result of this renewal and in pursuance of his effort to cut the hay, shot and killed father and son, and that the shooting and killing of father and son was the direct result of the resistance or attempted resistance on the part of Piety and his son to prevent Stepp from cutting the hay or taking possession thereof, then your verdict will he for the plaintiff against the defendants Stepp and Woosley, unless you find that the killing was done in the necessary self-defense of Stepp; however, if you find from the proof in the case that, when Stepp returned with his gun, he did not renew his effort to cut the hay and was not engaged in cutting the hay, and that he and the Pietys entered into a new encounter, even though you may find that the now difficulty grew out of anger or ill will and hatred occasioned by the first difficulty, still your verdict should he for the defendant Woosley, and you will also find for the defendant Stepp if you find that he acted in his necessary self-defense.”
Appellant assails the instruction upon the ground that it does not present the real issue to the jury. Appellant’s theory of the case is that Stepp killed Piety while acting for Woosley as his servant and employee in attempting to cut the hay; while appellee’s theory is that Stepp had abandoned his intention to cut the hay and was attempting only to remove his team from the scene of the action at the time he killed the Pietys. Appellant argues that the instruction assumes that there was an abandonment of the contest as to who had a right to the possession of the hay field, and a renewal.
We do not think the instruction susceptible to the interpretation placed- upon it by appellant. We agree with the construction placed upon it by appellees to the effect that it told the jury that, if Stepp shot and killed Piety while he was cutting the hay and as a part of the first encounter or a renewal thereof, both he and Woosley were liable; on the other hand, that, if he was not engaged in the cutting of the hay, which was the service for which he was employed, then Woosley was not liable. The instruction presents the real issue in the case to the jury for determination. Since the instruction presents both appellant’s and appellees’ theory to the jury for consideration, it was not error to refuse to give appellant’s requested number 4, which covered his theory of the case. The trial court is not required to duplicate or repeat instructions.
Appellant’s next contention for a reversal of the judgment is that the court refused instruction number 1-, requested by him, defining the phrase “within the scope of his employment.” The phrase was sufficiently defined in instructions numbers 8 and 10 given by the court.
Appellant’s next contention for a reversal of the judgment is that the court erred in refusing to give his requested instruction number 3, which is as follows:
“You are instructed that the employer who puts his agent or employee in a place of' trust or responsibility, or commits to him the management of his business, is responsible when the agent, acting within the scope of his authority, through lack of judgment or discretion, or under the influence of passion, inflicts an unjustifiable injury upon another, even though he go beyond the strict line of his duty or authority.”
This instruction is fully covered by instructions numbers 6, 9 and 10 given by the court.
Appellant’s next contention for a reversal of the judgment is that the court erred in giving instruction number 8, which is as follows:
“You are instructed that no particular time is required in which a servant may cease to be in the employ of his master, and in this case, even though you may find that the time intervening between the first difficulty and the killing was short, yet, if you further find that Stepp, at the time of the killing, had ceased to pursue his employment for Woosley, then the defendant Woosley would not be liable, and your verdict will be for him, even though you may find that the killing was not in Stepp’s necessary self-defense, unless you further find that the defendant Woosley advised, encouraged, aided and abetted Stepp in said killing.”
It is suggested by appellant that the instruction is erroneous, (a) because it is argumentative, (b) it left to the jury the determination of the question as to whether Stepp had ceased to pursue his employment for Woosley. We do not think the objections are tenable.
We have examined the objections made by appellant to the other instructions, and find no reversible error in them.
Appellant’s last contention for a reversal of the judgment is that the court erred in admitting the testimony of both Woosley and Stepp as to conversations between them and transactions had by each of them with each of the decedents, S. E. Piety and Noble Piety. The record reflects that Woosley had no transactions or conversations ■ with reference to the hay field with Noble Piety, but only with S. E. Piety. It shows, however, that Stepp had conversations and transactions with both in reference thereto. Two of the consolidated cases were suits by the administrator for the benefit of the widow and next of kin in which neither of the estates were interested. Under the principle announced by this court in the case of St. L. & S. F. Rd. Co. v. Fithian, 106 Ark. 491, 155 S. W. 88, the testimony was admissible in the consolidated suits for the benefit of the widow and next of kin. The third suit consolidated with these two was for the benefit of the Noble Piety estate. The testimony of the witnesses was not admissible, in so far as it might affect the result in the suit on behalf of Noble Piety’s estate, but a general objection only was made to the admission of the testimony. Appellant did not request the court to restrict or limit the testimony to the two cases in which it was. admissible. Had such request been made, it would have been the duty of the court, upon the admission of the testimony, to restrict its application to the two cases brought on behalf of the widow and next of kin. Bush v. Brewer, 136 Ark. 246, 206 S. W. 322; Little Rock Gas & Fuel Co. v. Coppedge, 116 Ark. 334, 172 S. W. 885.
No error appearing', the judgment is affirmed. | [
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Humphreys, J.
On April 29, 1941, appellant herein, plaintiff below, brought suit against J. W. Webb, appellee herein, defendant below, in the chancery court .of Phillips county, Arkansas, alleging that she was the owner and in possession of: “The 2/3 of the south half of the northwest quarter of section seventeen, in township one south, range two east of the fifth principal meridian, also described as 53 1/3 acres off the west end of the south half of the northwest quarter of section seventeen, township one south, range two east of the fifth principal meridian, Phillips county, Arkansas.”
It was alleged in her complaint that on the 7th day of December, 1938, J. W. Webb obtained a deed from Wallace Harper and wife conveying said real estate to him, and that after procuring said deed he, J. W. Webb, attempted by threats of violence to oust her tenant from said premises and has stopped him by such threats from pursuing his farm work.
She further alleged in her complaint that, at the time of the conveyance by Wallace Harper and his wife, the Harpers had no title to or rights in said premises, and that the deed casts a cloud upon her title; and being without remedy at law she prayed that said deed be canceled, set aside and held for naught, and that J. W. Webb be restrained from interfering with her possession of said premises.
On the second day of May, 1941, Hon. E. M. Pipkin, judge of the Phillips circuit court, in the absence of the chancellor and after a hearing before him, issued a temporary restraining order prohibiting J. W. Webb from going upon said property and taking possession thereof.
On May 3, 1941, J. W. Webb filed an answer to the complaint and a motion to dissolve the temporary restraining order. In his answer, he denied that Elvira W. Lewis has any title or interest in said real estate or any right to the possession thereof; that on the contrary his grantor, Wallace Harper, obtained a tax deed to said land from the state of Arkansas on the 14th day of April, 1932, and that his grantor had been and was at the time of the execution of the deed to him in the actual, open, notorious, adverse and exclusive possession of said property for more than eight years; that the said property was forfeited to the Greenbrier Drainage District of Phillips county, Arkansas, for the nonpayment of the assessments due it, and that said property was bought in by said drainage district at a sale for the purpose of foreclosing the lien of the district for the payment of taxes, and that after said district acquired title thereto he entered into a contract with said district for the purchase of said lands for the sum of $300 and paid $100 as part of the purchase price therefor, and that he is now operating said property under a contract or agreement with said district for the purchase of said land; that thereafter he arranged for the cultivation of said land during the year 1941, but that appellant, through her husband, has interfered with, threatened and tried to intimidate appellee in the operation of said property and the cultivation of said land; that on the second day of May, 1941, the Hon. E. M. Pipkin, judge of the Phillips circuit court, at a hearing before him, issued a temporary restraining order enjoining appellee from going upon said property and taking possession thereof, and that the effect of such a restraining order will be to place appellant in the possession of said land which she does not own and in which she has no interest and will prevent appellee from using or cultivating said land during the year 1941 either in person or by tenant and prayed that said temporary restraining order be dissolved and set aside, and that upon final hearing the complaint of appellant be dismissed for the want of equity.
On May 13,1941, after a hearing, the chancery court of Phillips county decided that he had jurisdiction of the subject-matter of the alleged cause of action and continued in effect until further order of the court the restraining order theretofore issued by the circuit judge in his absence, but required Elvira W. Lewis to give a bond in the sum of $200 conditioned for the payment of any damages that appellee might sustain on account of the issuance of the restraining order. Pursuant to the order appellant gave the required bond which was approved and filed on May 19, 1941.
In the course of the trial of the cause, a great mass of testimony was introduced including the proceedings in a number of lawsuits between parties in the alleged chain of title of appellant, the muniments.of title relied on by appellant and appellee and the testimony of many witnesses relating to the actual possession of the real estate in question covering a long period of time. It could serve no useful purpose to set out-all this testimony in this opinion and to do so would extend the opinion to a most unusual length. We do not regard it necessary to do so to determine the issues involved between appellant and appellee. Suffice it to say that the particular tract of land involved in this suit, consisting of 53 1/3 acres, was owned by Beulah Hill who had inherited it from her mother and a brother. The land is a part of the 160 acres which was formerly owned by Gabe Johnson. Gabe Johnson died in the year 1912 and left four children surviving him, one of whom was the mother of Beulah Hill. Later, one of these children died unmarried and without issue and his interest was inherited by the other three children. There was a partition of the land on or about 1918, which resulted in Beulah Hill acquiring 40 acres by inheritance from her mother and 13 1/3 acres as her share of her uncle’s interest, thus giving her 53 1/3 acres, being the west 53 1/3 acres of the south half of the northwest quarter of section 17, township 1 south, range 2 east, in Phillips county, Arkansas. On July 3, 1929, Beulah Hill and her father, Henry Giles, who was living with her on said tract of land, executed to appellant, Elvira W. Lewis, their note for $500 for advances which had been made Beulah Hill and Henry Giles to operate the farm, bearing interest at ten per cent, from date until paid, due and payable January 1, 1931, and executed a mortgage or deed of trust to secure same. The land was described as being situated in Phillips county, state of Arkansas, as follows: “2/3 of south half of the northwest quarter of section 17, township 1, range 2 east, containing 53.33 acres.”
This note was never paid. Appellant, through her husband, made the following marginal entry on said mortgage or deed of trust: “Jan. 1st, 36, 50 int. on this mtge. Elvira W. Lewis by J. C. Lewis.”
The attestation of this marginal entry on the record by the clerk was not dated. There also appears on the margin of the record of the mortgage the following entry: “$20 paid on within indebtedness the 1st day of Dec., 1937. Elvira W. Lewis by Joe M. Walker, Atty. This April 19, 1940. Attest: Jack McDonald, Clerk by H. H. Trumper.”
This note was never paid, but the mortgage was foreclosed at the July term, 1940, of the chancery court of Phillips county, and the sale of the land under the foreclosure proceedings was approved on October 17, 1940. Appellant was the purchaser at the sale and procured a deed from the commissioner, and this was introduced in evidence as one of her muniments of title. The deed she procured from the commissioner contained the -same description as the description in her mortgage or deed of trust. Appellant was placed in possession of the land, 53 1/3 acres off the west end of the south half of the northwest quarter of section 17, township 1 south, range 2 east, by the sheriff under a writ of assistance issued in the foreclosure proceedings, which writ of assistance described the land as it had been described in appellant’s mortgage and in all of the foreclosure proceedings.
During the course of the trial appellant also introduced in evidence a deed from the commissioners of Greenbrier Drainage District of date June 3,1941, to her conveying to her 53 1/3 acres off the west end of the south half of the northwest quarter of section 17, township 1 south, range 2 east, Phillips county, Arkansas. After the introduction of this deed by appellant as a muniment of title, appellee filed an amendment to his answer charging that said deed was procured from said drainage district through the misrepresentations and fraud of appellant’s husband.
Appellant filed a reply to the answer denying that she had procured the deed from the drainage district through misrepresentations and fraud.
Much testimony was then introduced responsive to the issue joined in the amended answer and reply thereto.
The trial court, after hearing all the testimony introduced upon the issues joined in the original complaint and answer thereto and the testimony introduced upon the issue of fraud joined in the amended answer and reply thereto, found that the decree of foreclosure under which appellant obtained a commissioner’s deed was void on account of defective description of the land involved; that the mortgage debt owed by Beulah Hill and Henry G-iles to appellant was barred as to third parties by reason of failure to make marginal indorsements on the record as required by the statute and that the deed of the G-reenbrier Drainage District to appellant was procured by her through a misrepresentation of fact.
Based upon these findings the chancellor treated appellee’s answer as a cross-complaint and canceled appellant’s deed from the commissioners in the foreclosure proceedings and canceled the deed from the G-reenbrier Drainage District to appellant and quieted the title to the 53 1/3 acres in appellee, from which findings and decree is this appeal.
Appellee concedes that after his grantor procured a donation tax deed from the state in 1932 the land-in question was forfeited to the G-reenbrier Drainage District for unpaid drainage district taxes; that the drainage district foreclosed its lien for the taxes and procured title to said land from which he never redeemed it. He also concedes that appellant obtained a deed from the G-reenbrier Drainage District to said land on June 3, 1941, but alleges that she obtained this deed through misrepresentations made by her husband to the drainage district.
As we understand this record neither appellant nor appellee questions the G-reenbrier Drainage District’s title to said real estate and that being the case said district had a right to sell same to whomsoever it pleased. Appellee claims, however, that at the time appellant procured the deed from the G-reenbrier Drainage District he had a contract with said district to buy it himself. When called upon to produce his contract he produced a receipt from the district for $100 for rent on the land for the year 1939. The writing he introduced was not such a contract upon which appellee could maintain suit for specific performance against the district. He did not make said district a party to this suit and seek specific performance of his contract or receipt. Said district is not seeking to cancel its deed to appellant on the ground that she procured the deed from it on misrepresentations or fraud, so appellee is not in a position to do so for the district, based upon the unenforceable rent contract with the district. The rent contract gave appellee no such interest in the land itself upon which he could base an action to cancel appellant’s deed from the district.
The trial court erred in dismissing appellant’s complaint against appellee and canceling her deed to said land from the Greenbrier Drainage District, but on the contrary should have dismissed appellee’s cross-complaint and canceled his deed to said land from Wallace Harper of date December 17,1938.
On account of the error indicated the decree is reversed with directions to dismiss appellee’s cross-complaint and cancel his deed from Wallace Harper, of date December 17, 1938, and to quiet appellant’s title.
The Chief Justice did not participate in the consideration or determination of this case.. | [
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Mehaffy, J.
Appellant, Joe T. Wehb, was indicted, charg’ed with permitting stock to run at large in section 23, township 10 north, range 31 west, in Crawford County, Arkansas. The act under which he was indicted is a special act of 1921, prohibiting the running at large of stock in certain territory and fixing the punishment for a violation of said act.
Act No. 467 of the Acts of 1923 amended act 593 of the Acts of 1921, enlarging the restricted territory so as to include the lands mentioned in the indictment. The original act, act 593 of the Acts of 1921, contains the following provision:
“ Section 4. If any owner or person having charge of any such stock or fowls allow or permit the same to run at large in said territory, he shall b<= deemed guilty of a misdemeanor, and, on conviction, shall he fined $10, and for each subsequent offense shall be fined said sum. and imprisoned in the county jail some period- of time, not exceeding 30 days.”
This case was tried upon an agreed statement of facts containing the following:
“The defendant, Joe T. Webb, did permit cattle, on the 8th day of March, 1927, to run at large, and outside of an inclosure, within section 23, township 10 north, range 31 west, 'Crawford County, Arkansas. That the said Joe T. Webb was the owner of said cattle, knowingly permitting them to run at large as aforesaid.”
The cause was tried before the court sitting as a jury, and appellant was found guilty and his punishment fixed at a fine of $10.
Appellant filed a motion for a new trial, which was overruled, exceptions saved, and he prosecutes this appeal to reverse said judgment. The appellant filed a demurrer in the court below, and in his argument he discusses two questions only. First, it is insisted that the evidence is insufficient to justify the conviction.
We do not agree with appellant in this contention. The Legislature passed the act creating the district, fixing its boundaries, prohibiting the running at large of stock within said district; and appellant, in the agreed statement of facts, 'admits that he owned the stock and knowingly permitted them to run at large within said district. If he did this, he violated the act, and the evidence was ample to sustain the conviction.
The next contention is that the court erred in overruling his demurrer to the indictment, because he alleges that the act under which the indictment was drawn is unconstitutional. It is argued that the act of 1921 was a general act, and that in 1923 the Legislature passed a special act amending the general law, and it is contended that the Legislature could not constitutionally do this. In the first place, the original act of 1921 was a special act, and it was amended in 1923 by another special act simply by including additional territory or adding additional territory to the original district. In 1915 the Gen eral Assembly enacted a statute providing for stock-law districts to be formed upon vote of the qualified electors of three or four townships in any county. The act provided for the county court ordering an election upon the petition of a certain per cent, of the qualified electors. Under this general act a stock law was formed in Carroll County. In 1919 a special act was passed by the Legislature, exempting one of the townships and the electors and citizens of said township from the provisions and effect of the general act. It was contended that the special act was void. The court said, in passing on the Carroll County case:
“The court also sustained the attack on the ground that it is not within the power of the Legislature to dismember a district created under a valid statute by vote of the electors in accordance with the terms of the statute. The answer to this is that the statute, when put into operation, is a police regulation, and is entirely subject to legislative control. The organization of the district is dependent upon legislative will, and it is entirely within the power of the lawmakers to either repeal or amend the statute, or to abolish the district, or to. exclude any territory from it. In other words, the power of the Legislature over the subject is supreme, there being no fixed right in a mere police regulation.” Johnson v. Pinckley, 141 Ark. 612, 217 S. W. 805.
The State Constitution is not a grant or enumeration of legislative powers, but is a limitation upon the exercise of such powers, and the Legislature can exercise all the powers not expressly or by fair implication forbidden by the Constitution. We know of no provision of the Constitution that prohibits the Legislature from creating the district, amending the act, abolishing the district, or making such changes as, in its judgment, are desirable. The Legislature can do anything which is not forbidden, either expressly or by implication. See Butler v. Bd. Dir. Fourche Drain. Dist., 99 Ark. 100, 137 S. W. 251; St. L. I. M. & S. R. Co. v. State, 99 Ark. 1, 136 S. W. 938; Vance v. Austell, 45 Ark. 400.
Courts will not declare 'an act of the Legislature unconstitutional unless it clearly appears that some provision of the Constitution has been violated or that the Legislature is prohibited either expressly or by implication from enacting the statute. The Legislature clearly had the right to pass the original act and the right to amend it, as it did in 1923.
The judgment of the circuit court is affirmed. | [
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Lyle Brown, Justice.
Plaintiffs-appellants sued Northwestern Mutual Insurance Company to recover under a medical payment provision included in Paul Ship-ley’s policy of public liability insurance. At the close of all the testimony the trial court entered a directed verdict for Northwestern Mutual. The appeal challenges the propriety of that verdict.
Paul Shipley’s policy bound the Company to pay medical bills incurred by Shipley and his passengers. The coverage was limited to $500 per person. Tn the event of any payment under the policy it was stipulated that the Company would be subrogated to any right of recovery vested in the injured persons. It was further provided that those who were so insured would do nothing to prejudice the Company’s subrogation rights.
On April 29, 1966, Shipley was involved in a collision with a vehicle driven by Eva M. Baldwin. The accident was reported to Shipley’s insurance agent. As a result of that contact Northwestern’s adjuster called on Shipley. The adjuster obtained information concerning the collision and advised Shipley to supply him with the medical bills. Shipley and the other three occupants of the vehicle, his wife and two grandchildren, were receiving medical attention. Treatment for some or all of them continued for a matter of months. When the bills would come to Mr. Shipley on the first of each month he would take them to the adjuster. Shipley seemed to be of the impression that as each bill was submitted Northwestern would forthwith supply the funds to pay it. On the other hand the adjuster understandably was desirous of garnering all the bills and disposing of the claims with final instruments of settlement and subrogation. In that connection he assured Shipley that Northwestern was not attempting to avoid its obligations under the policy.
On September 15, 1966 — less than four months after the accident — the Shipleys filed suit against Mrs. Baldwin. That filing was not made known to Northwestern or its adjuster. The attorney for the Shipleys shortly began correspondence with Northwestern’s adjuster concerning the claimed medical payments. Counsel was advised that numerous medical bills had been supplied but the adjuster had not been informed as to whether the Shipleys had been discharged from treatment; nor had the proofs of loss and subrogation agreements been executed as requested. After further correspondence be tween those two parties, the adjuster prepared all the forms and attached detailed instructions for their execution. Those were forwarded to the attorney for the Ship-leys with the assurance that their execution and return would result in payment of the medical claims. Those instruments were mailed on January 4, 1967. The attorney received them but elected not to have them executed and returned. A follow-up letter from the adjuster brought no response.
On February 28,1967, the case against Mrs. Baldwin was tried. The following awards were made: Paul Ship-ley, $6,602-, Novella (wife), $3.50; Terry, $275; and Karen, $65. The same medical bills forming the basis of this suit against Northwestern were introduced in the Ship-ley s-Baldwin trial.
Suit against Northwestern Mutual was filed April 26, 1967. Northwestern’s refusal to pay the medical claims under its policy was grounded on the recovery in the Baldwin case. The Company contended (1) that its insurance contract was one of indemnity, and (2) that the Shipleys violated the subrogation and cooperation provisions of the policy, thereby precluding Northwestern from recouping any payments made by it from the party at fault (Mrs. Baldwin).
In directing a verdict for Northwestern the trial court found that “the Shipleys have been paid for the medical expenses and that this company is not now obligated to pay same.” We hold the court was correct on both findings, that is, first, the Shipleys had been paid, and second, Northwestern is not now obligated to pay. Novella Shipley contends that the judgment in her favor, and against Mrs. Baldwin, for $350 was $31.40 short of her actual medical. Her individual recovery was not for medical but for physical injuries. The instructions to the jury in the Shipley s-Baldwin trial are not in this record; however, it is shown that Paul Shipley paid the medical expenses for his wife and grandchildren. Paul Shipley recovered $6,602. Having paid the medical, Ship-ley was the person entitled to recover for it. So we certainly cannot say the trial court was in error in stating that all medical payments were paid when Mrs. Baldwin paid the judgment against her. Nor is there anything in the record to show that the awards to the Shipleys were reduced by comparative negligence. To hold that Northwestern was obligated to pay the Shipleys, the court would have ignored the well established rules (1) that the object of subrogation is to prevent the insured “from recovering twice for the one harm, as would be the case if he could recover from both the insurer and from a third person who caused the harm, and (2) reimbursing the surety for the payment which it has made.” Couch on Insurance 2d § 61:18 (1966).
In the contract of insurance before us the insured and the insurance company entered into an agreement whereby the insurer would be subrogated to any right possessed by the insured to reimbursement of medical expenses from a third party, in this instance a tort-feasor; the contract contained the usual cooperation clause; and it provided that the insured would do nothing after loss to prejudice the insurer’s interest under subrogation. In view of those provisions, together with the fact that full medical compensation has been paid by the tort-feasor, Mrs. Baldwin, the Shipleys are precluded from recovering from Northwestern. See Travelers Indemnity Co. v. Cole, CCH 1967 Automobile Law Reports, § 5608 (Tenn. Ct. of Appeals, M. S., June 30, 1967); Travelers Ins. Co., v. Lutz, 210 N. E. 2d 755 (Ohio 1964); DeCespedes v. Prudence Mutual Casualty Co., 193 So. 2d 224 (Fla. 1966); Bernardini v. Home & Auto Ins. Co., 212 N. E. 2d 499 (Ill. App. 1965).
Affirmed. | [
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Carleton Harris, Chief Justice.
The appellees herein are all owners of property in Hollywood Heights Subdivision, Saline County, Arkansas. On November 13, 1962, one of the appellants, Land Development, Inc., being the sole owner of a 120-acre tract of land in Saline County, executed and recorded a plat and Bill of Assurance, carving the land into streets, a proposed park, and 248 lots. Various restrictions were listed in the bill of assurance on the use of, and improvements to, the property. The issue in this litigation arises because of the provisions of Paragraph 7 and Paragraph 12 of the bill.
Paragraph 7 provides:
“Temporary structure. No structure of a temporary character, trailer, basement, tent or shack, garage, barn, or other out building other than servant’s quarters, shall be erected on a building site covered by these covenants for human habitation, temporarily or permanently, nor shall any temporary type residence be erected thereon for human habitation.”
Paragraph 12 provides:
“The AMENDMENTS. Any and all of the covenants, provisions, or restrictions set forth in this Bill of Assurance may be amended, modified, extended, changed, or cancelled, in whole or in part by a written instrument signed and acknowledged by the owner or owners of at least 50% in the area of the land in this subdivision, and the provisions of such instrument so executed shall be binding from and after the date it is duly filed for record in Saline County, Arkansas, and these covenants, restrictions, and provisions of this instrument shall be deemed covenants running with the land and shall remain in full force and effect unless and until amended or cancelled as authorized hereinabove.”
Land Development, Inc., sold these 33 appellees (16 couples and 1 individual) lots in the subdivision, the contracts of sale containing the following provision:
“In addition to the foregoing restrictions and stipulations, no dwelling shall be constructed on any lot purchased under this contract, nor shall any dwelling of less than 1,000 sq. ft. of floor space, excepting porches and porticos. There shall be no shed roofs and all buildings will be finished and painted on the outside. No houses will be moved in (or house trailers) on said property.
“The foregoing stipulations, restrictions and condi tions are imposed for the benefit of each and every other parcel of land in this addition, and shall constitute covenants running with the land; and the vendor, its successors and assigns, and any person owning property in said addition may prosecute proceedings at law or in equity to prevent or remedy the violation of such restrictions and covenants, and secure redress for damages on account of such violation.”
Subsequently, Land Development, Inc., conveyed its interest in Hollywood Heights to Eagle Mortgage Corporation (hereafter called Eagle) and Western Realty, Inc. (hereafter called Western). At the time of trial Eagle owned approximately 75 lots, of which 59 were subject to contracts of sale, and Western owned 130 lots, of which 2 were subject to contracts of sale. All of the lots owned by Western are encumbered by a mortgage to Eagle.
Accordingly, on March 20, 1967, Western and Eagle were the owners of more than 50% of the area of land in this subdivision, and on that date, they executed an amended bill of assurance for Hollywood Heights Subdivision, which was filed for record on March 21, 1967. This amendment to the 1962 bill permitted mobile homes in an undeveloped portion, and very close to the center, inclusive of Lots 171 through 190, of the original subdivision; these lots were replatted into “Western Park Subdivision,” mobile homes in this new subdivision being permitted. Appellants sold some of the lots in Western Park for this type home, and were in the process of selling other lots, when the appellees instituted suit to enjoin them from making' these sales on the ground that Paragraph 7 of the original bill was being violated. After the filing of answers, appellants contending their action was authorized by Paragraph 12, and the taking of interrogatories, the case proceeded to trial; at the conclusion thereof, the court held that Paragraph 12 of the original bill of assurance “constitutes abuse of law and is ambiguous and against public policy. That said Paragraph 12 should be interpreted to read that the bill of assurance could be changed at such time that fifty per cent (50%) of the homeowners physically living in the subdivision vote to change the provisions.” Appellants were enjoined from selling property for the purpose of placing house trailers or mobile homes in the subdivision, and the court further directed that all trailers previously placed thereon should be removed; the amended bill of assurance was voided. From the decree so entered, appellants bring this appeal.
Junior L. Johnson, one of the appellees, testified that he had owned one of the lots since January, 1965, and had just completed building a house. He valued his house and lot at approximately $15,000.00. Johnson had purchased two lots from Land Development, Inc., and he testified that he was aware of the restrictions in the contract, though he did not read the bill of assurance. The witness said that, upon inquiring if the same restrictions held true to the other lots in Hollywood Heights, he was assured by Charlie Miller, President of Land Development, Inc., that this was correct. Johnson stated that he was familiar with the provision in his deed, heretofore set out, and because of that provision, and the assurance by Miller, purchased the property. The parties stipulated that the testimony of this witness would be representative of the other appellees, except as to the value of their respective properties.
G-eorge F. Fleischauer, salesman and property manager of -Block Realty Company, testified that he had not been in Hollywood Heights Subdivision, but that he had had experience with trailers being placed on property. He was of the opinion that Dots that had been set up as a residential subdivision would be depreciated by as much as 50% if the trailers w'ere then put in the center (of the subdivision). This statement had reference! to ground value, and the witness stated that if homes were placed on the property, such improvements would be depreciated by 25% if trailers were moved in.
Miller testified that, in addition to Hollywood Heights, he had developed about 7 other subdivisions, all with similar bills of assurance. The witness said that he and his salesmen, in selling lots, would give prospective purchasers a brief resume of the restrictions, and that these restrictions were placed in the contracts so that the individual who purchased his lot would know exactly what he could do. He testified that the provision for amending a bill of assurance (referring to Section 12) is customary, and that the power to amend is essential :
“* * * You want to protect everyone as near as possible. At the same time you have to leave an opening somewhere because nobody knows what the future holds and.if the majority of the land owners so desire to change it for some other purpose, I believe it would be a standard practice. I have never seen any that wasn’t. * * * Any man, owner or owners who own 50% of the land or more would have the right to change the Bill of Assurance.”
The witness said that at the time the bill was amended, there were only about 13 houses in the entire area, and that about 96% of the subdivision was uninhabited. He stated that a 6-foot redwood fence was being built surrounding the mobile home area.
Maurice Mitchell, Chairman of the Board of Eagle Mortgage Corporation and Vice-President of Western Realty, testified that, after examining the bill of assur-' anee, his company made a development loan to Miller in the amount of $60,000.00 and subsequently provided additional investment. The sale of lots came to a halt, and Miller, unable to meet his obligations to the mortgagee, executed a deed to the property. According to Mitchell, the subdivision contained 248 lots and only 7 had been improved (other than mobile homes). Under the provisions of Section 12, Eagle and Western, being the owners of more than 50% of the lots, replatted a portion of the area to permit the location of mobile homes. The witness referred to a number of subdivisions which Eagle had developed, and he said that language similar to Paragraph 12 was contained in every modern hill of assurance that he had ever seen. Mitchell held the view that the development of the mobile home area would increase the market value of the other lots by encouraging activity in the area. He said that no permanent dwelling would be erected next door or across the street from any mobile home.
C. V. Barnes, a real estate counselor of Little Rock, testified that all of the developments, with which he had been associated, had included a provision similar to Section 12, and he was actually of the opinion that the sale of mobile homes would aid in stabilization of the neighborhood. James Larrison, a professional appraiser of Little Rock, agreed with Mr. Barnes.
The sole question presented to us is the meaning of Paragraph 12, or to be more specific, that portion of the language which provides that the bill of assurance may be amended by a written instrument “signed and acknowledged by the owner or owners of at least 50% in the area of the land in this subdivision. ’ ’ The court held that this language was ambiguous, and constituted an abuse of law; that it should be interpreted to read that the bill could be changed “at such time that fifty per cent (50%) of the homeowners physically living in the subdivision vote to change the provisions.”
Appellants simply contend that the meaning is that the owners of 50% of the land in the subdivision can amend the bill.
We are of the opinion that a provision in a bill of assurance giving the power to subsequently amend or modify the provisions of the original bill, is valid. In Matthews v. Kernewood, 40 A. 2d 522, the Maryland Court of Appeals held that one who conveys part of a tract of land by deed containing restrictive covenants may reserve to himself the power to modify those restrictions in future sales. The same conclusion was reached by the Supreme Court of Georgia in the case of Davis v. Miller, 96 S. E. 2d 498.
Here, Paragraph 12 gave notice that the restrictions set forth in the bill could be amended or cancelled in whole or in part.
Appellees’ principal argument is that the paragraph under discussion is ambiguous, and that the provision in question should be construed most strongly against the one who created it. We agree with that declaration of the law, but we do not agree that Paragraph 12 is so ambiguous as to be susceptible to two meanings. To be sure, the pertinent phrase is not perfectly written, but we think the language obviously means that the bill may be changed by “the owner or owners of at least 50% of the area of the land in this subdivision,” rather than “in the area of the land,” etc. The contrary construction, as pointed out hy appellants, is not very logical. Appellants say:
“A reverse construction, ‘by 50% of the owner or owners in the area of the land in this subdivision’ simply does not make sense. There is no such thing as 50% of an owner, in this context.”
Of course, the interpretation rendered by the court, viz., the “Bill of Assurance could be changed at such time that fifty per cent (50%) of the homeowners physically living in the subdivision [our emphasis] vote to change the provisions,” is not supported by any language in. the bill; nor do we find any evidence that would imply such a construction. In fact, this version could well lead to a preposterous situation. The proof reflected that, at the most, thirteen people had built homes in the entire area. It would appear that, under the finding of the Chancellor, seven homeowners conld change the hill of assurance for the entire subdivision composed of 248 lots. To go a step further, let us suppose that only two people had built homes in the original subdivision; again, according to the holding of the trial court, one homeowner could likewise change the bill of assurance for the whole subdivision. We think it evident that the questioned provision simply means that the bill may be modified by a written instrument executed by the owner or owners of 50% of the land in the subdivision.
Certainly, we can understand the position of the ap-pellees, and the desire of those who have built their homes, to maintain the original restrictions; however, Paragraph 12 was a part of the bill of assurance when the lots were purchased, and therefore, all lot purchasers were on notice that the restrictions could be modified, or cancelled, in whole or in part.
Reversed.
Byrd, J., disqualified.
Five have built homes.
Other evidence indicated that only seven had built homes. | [
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George Rose Smith, Justice.
This is an action brought by the appellant, W. R. Talley, for personal injuries and property damage sustained in a highway collision involving four vehicles, all headed north. At the close of Talley’s proof the court directed a verdict in favor of the appellee, Arkansas-Best Freight System, Inc. For reversal Talley contends that his proof raised questions of fact for the jury.
Talley has brought up only his own testimony and that of a State police officer who reached the scene about ten minutes after the accident happened. As the officer’s testimony added nothing of significance to Talley’s own account, our statement of the facts is taken from .Talley’s version of the occurrence.-
The accident happened at about 11:30 p.m. on a two-lane one-way overpass that is part of Interstate Highway 55 in Crittenden county. Basically, the accident was caused by the negligence of Charlie Sims, who had stopped his car in the righthand lane of traffic on the overpass, with his lights turned off.
The Arkansas-Best Freight truck, with Talley behind it, was approaching the overpass from the south, in the righthand lane, at about 50' or 55 miles an hour. The speed limit was 70. Talley, preparing to pass, pulled over into the lefthand lane and was trailing the truck in that position when the two vehicles entered the overpass.
After the truck passed the crest of the rise its headlights came downward and revealed the stationary Sims car. The truckdriver swerved to his left and succeeded in merely scraping the left rear part of the Sims car as he went past it. The truckdriver at once started to return to the righthand lane, but when he came to a stop his truck was still angling across the center line of the overpass, leaving the lefthand lane partly blocked.
Talley, too, had seen the Sims car when it appeared in the truck’s headlights. He at once hit his brakes and succeeded in bringing his car to a stop about ten feet behind the ABF truck, without there having been any contact between the two. A few seconds later a fourth vehicle, also coming from the south, skidded into the rear end of Talley’s car and knocked it against the ABF truck and the lefthand side of the overpass, causing the injuries to Talley and his car.
Talley charges the ABF driver with negligence in three particulars, but each charge may be answered in a few words.
First, Talley asserts that the truckdriver was traveling at an excessive speed. There are two flaws in this contention. One, there is no proof that the truckdriver’s speed was excessive. Two, there was no causal connection between the speed of the vehicles and the ensuing collision between Talley’s car and the fourth vehicle involved in the accident.
Secondly, Tally asserts that the ABF driver changed lanes without signaling his intention to do so. Even so, that omission was not the proximate cause of Talley’s injuries. In fact, Talley testified that if the driver had given a lane-changing signal, “I would still have hit my brakes just as I did.” He went on to say that in his opinion the truckdriver did all he could to avoid the accident.
Thirdly, Talley asserts that the truckdriver was negligent in stopping his truck in such a manner as to obstruct the highway. The trouble is that Talley’s complaint contained no such allegation of negligence, nor was there any request that the pleadings be amended to conform to the proof. Thus that issue was not before the court when it granted ABF’s motion for a directed verdict.
Affirmed.
Fogleman, J,, disqualified.
Byrd, J., concurs. | [
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McIíaney, J.
Appellant seeks a license to operate a motor freight transportation line between El Dorado and Texarkana, Arkansas, over U. S. highway 82 and to serve all intermediate points. March 19, 1941, he filed his application for such license with the Arkansas Corporation Commission, in which he names appellees, Black Motor Lines, hereinafter called 'Black, and Southwestern Transportation Company, hereinafter called Southwestern, as motor carriers operating over a part of the route, to-wit: Black, El Dorado to Magnolia, turn south on U. S. highway 79 to Shreveport, Louisiana; Southwestern, Texarkana to Magnolia, turn north on 79 to Camden and Little Bock. Appellees were duly notified, appeared and protested the granting of the license sought by appellant. The license was granted by the commission. Appellees appealed to the circuit court of Pulaski county, where, on a hearing' by the court on the record made before the commission, the latter’s order granting said license was canceled, set aside, annulled and held for naught. This appeal followed.
As will appear from the above statement, appellant seeks authority to operate a truck line between El Dorado and Texarkana through Magnolia, to serve all intermediate points, on highway 82, right through the heart of the oil fields of Arkansas. The territory he would serve is already being served by appellees. He testified he had about $2,500 in assets consisting in part of Packard 8 coupe of the value of $600, a one-half ton 1940. Ford pickup truck, worth $500, and real estate of $1,200 or $1,500 in value. He is now employed by the Southeast Arkansas Freight Lines, Inc., in the capacity of city agent at El Dorado, but that said company would have no financial interest in his permit, if granted. Act 367 of 1941 is the latest motor carrier act and § 9 (a) thereof provides the conditions under which a certificate shall be issued or denied. Among others it is provided that the applicant must be found to be “fit, willing and able properly to perform the service proposed,” .and another is that the proposed service “is or will be required by the present or future public convenience or necessity.” If these things are found the certificate shall be granted; otherwise, denied; “and the burden of proof shall be upon the applicant.” Section 9 (c) reads as follows: “In granting application for certificate, the Commission shall take into consideration the reliability and financial condition of the applicant and his sense of responsibility toward the public; the transportation service being maintained by any railroad, street railway or motor carrier; the likelihood of the proposed service being permanent and continuous throughout twelve months of the year, and the effect which such proposed transportation service may have upon other forms of transportation service; and any other matters tending to show the necessity or want of necessity for granting said application.”
Appeals to this court in cases of this kind, originating before the Corporation Commission, are tried here de novo. Mo. Pac. R. R. Co. v. Williams, 201 Ark. 895, 148 S. W. 2d 644. It was there held, to quote headnote No. 7, that “A certificate of convenience 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 public and the existing carrier has been given an opportunity to furnish such additional service and has failed to do so.”
About the time, or perhaps a little after, appellant applied for a certificate, appellees rearranged their schedules of service so as to make deliveries of freight within an hour or so of the same time appellant would make them. So, the service appellant proposes to render would be an unnecessary duplication of the service already being rendered. Bach of the appellees operates interstate and they interline at Magnolia. Appellant would operate only between El Dorado and Texarkana, through Magmolia. All the freight he could get out of Texas or Louisiana would be interlined at Texarkana. He could hope to get nothing from Southwestern at Texarkana as it interlines'with Black at Magnolia. He could hope to get nothing out of Black at Magnolia for he goes to El Dorado. It appears to us, as it no doubt diet to the trial court, that appellant, either for himself or as agent for the'Southeast Arkansas Truck Lines, Inc., is attempting to “short haul” appellees and thereby skim the cream of the business in the oil fields of Arkansas, when there is no showing of a public convenience or necessity within the meaning of said act, even if it be conceded that appellant is “fit, willing and able properly to perform the service proposed,” which is doubtful.
The fact that appellees have improved their service since the filing of appellant’s application cannot change the situation, because appellees should have been given the opportunity to so improve their service before granting' appellant’s application. Mo. Pac. R. R. Co. v. Williams, supra. It is also said this improved service may be only temporary and not permanent, but both appellees ■say it is a permanent change.
Twenty-two witnesses testified for appellant, ineluding himself and McNulty of the Southeast, but when informed of the improved service now rendered by appellees, a majority of them said the service now rendered was satisfactory. Twenty-nine witnesses, including Mr. Black and Mr. Smith of the Southwestern, testified for appellees, and all testified the service now rendered is adequate, ample and satisfactory. The witnesses on both sides are business' men, shippers, both consignors and consignees of freight that moved over highway 82, to and from El Dorado and Texarkana, and it appears to us, both from the testimony and from the circumstances and physical conditions surrounding the situation, that the public convenience or necessity does not now nor in the immediate future require the additional service proposed by appellant.
The judgment is accordingly affirmed. | [
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John A. Fogleman, Justice.
This appeal questions the priority of a security interest for purchase money of an automobile over a lien of a repairman. The judgment appealed from was entered in favor of appellees in their suit to replevy the motor vehicle from appellant. The evidence showed that appellees, used automobile dealers, sold the car to Randall and Deena (Dinky) Bishop on April 12, 1965 for $1,237.53, payable at $12.50 per week. A title retaining contract signed by the Bishops was filed with the Motor Vehicle Division of the Arkansas Revenue Department, and the certificate of title dated June 17, 1965, reflected a lien in favor of ap-pellees. Subsequently, on January 8, 1966, without the knowledge or consent of appellees, the purchasers had repair work done by appellant. The total cost of the parts and labor was $140.97, of which the Bishops paid only $20. Appellant kept the vehicle in his possession until February 14, 1966, when it was taken on the writ issued on the complaint of appellees. Appellant asserted his lien and prayed for the return of the vehicle or its value.
As his first ground for reversal, appellant asserts that the Uniform Commercial Code gives priority to his lien over the claim of appellees. In order to determine the question thus posed, it becomes necessary that we examine pertinent sections from the Secured Transactions Chapter of the Uniform Commercial Code. Ark. Stat. Ann. § 85-9-310 (Add. 1961) reads as follows:
“When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest, a lien upon goods in the possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statutory and the statute expressly provides otherwise.”
Section 85-9-102(2) provides:
“This Article [chapter] applies to security interests created by contract including pledge, assignment, chattel mortgage, chattel trust, trust deed, factor’s lien, equipment trust, conditional sale, trust receipt, other lien or title retention contract and lease or consignment intended as security. This Article [chapter] does not apply to statutory liens except as provided in Section 9-310 [§ 85-9-310].”
The lien asserted by appellant is based upon Ark. Stat. Ann. § 51-412 (1947) which reads:
“Priority of lien. — The lien herein provided for shall take precedence over and be superior to any mortgage or other obligation attaching against said property in all cases where the holder of such mortgage or other obligation shall permit such property to remain in the possession and be used by the person owing and bound for the amount thereof; provided, that the lien herein provided for shall be subject to the lien of a vendor of automobiles, trucks, tractors and all other motor propelling conveyances retaining title therein, for any claim for balance of purchase money due thereon; provided, further, that said lien shall not take precedent [precedence] over a bona fide purchaser for value of any such automobile, truck, tractor and other motor propelled conveyances without -notice either actual or constructive. [Acts 1919, No. 140, § 9, p. 123; # # # j 97
Appellant asserts the priority of his lien upon the contention that it is a common law lien not dependent on statute, citing Gardner v. First National Bank, 122 Ark. 464, 184 S. W. 51. On the other hand, appellees say that the right to the lien is entirely statutory, citing Commercial Credit Company v. Hayes-Lamb Motor Co., 174 Ark. 945, 298 S. W. 217.
In the absence of any statute on the subject, a common law lien in favor of mechanics repairing automobiles was recognized in Arkansas. It has been held, however, that the lien which arose under the common law was superseded by the statutory lien created by Act 147 of 1903 (Kirby’s Digest 5013 — 5016). J. M. Lowe Auto Co. v. Winkler, 127 Ark. 433, 191 S. W. 927. That act was, in turn, superseded by Act 140 of 1919 [Ark. Stat. Ann. § 51-402 — 51-412]. Consequently, the lien of appellant is a statutory lien in the sense of Ark. Stat. Ann. § 85-9-310.
Appellant contends, however, that the security interest of a seller under the Uniform Commercial Code does not constitute the lien of a vendor of automobiles retaining title for his claim for a balance of the purchase money under § 51-412. We do not agree. To so hold would put form above substance. The mere fact that the lien of a conditional sale contract is now called a security interest does not so destroy its identity or character as to render nugatory the otherwise applicable proviso in the artisan’s lien statute. Our position is substantiated by the comment on § 85-9-310 in which the Code draftsmen say, “Some of the statutes creating such liens expressly make the lien subordinate to a prior security interest. This section does not repeal such statutory provisions. ’ ’ At the time this comment was written it is unlikely that any state statute classified the lien of a vendor under a title retaining contract as a “security interest.” This name for the various classes of liens now included within its scope probably came into existence through the drafting of the Code.
A similar result has been reached by the Supreme Court of Alaska under a statute making the artisan’s lien on a motor vehicle subordinate to conditional sales contracts properly filed before the vehicle comes into possession of the lien claimant. Decker v. Aurora Motors, Inc., 409 P. 2d 603 (Alaska 1966). The Superior Court of New Jersey, appellate division, has also reached the same result. National State Bank of Newark v. Rapp, 90 N. J., Super 300, 217 A. 2d 325.
Neither Corbin Deposit Bank v. King, 384 S. W. 2d 302 (Ky. 1964), Schleimer v. Arrowhead Garage, Inc., 46 Misc. 2d 607, 260 NYS 2d 271 (1965), nor Westlake Finance Co. v. Spearmon, 64 Ill. App. 2d 342, 213 N. E. 2d 80 (1965), cited by appellant, are persuasive because of differences in the applicable repairman’s lien statutes. The Kentucky court said that its statute contained no provision subordinating its lien to an earlier security interest. Reference to the statute discloses no provision making the lien subject to any other lien by any name or designation. The garageman’s lien statute involved in the New York case specifically makes the lien superior to a security interest. The Illinois statute made the lien subject only to the lien of a bona fide chattel mortgage previously recorded. While Illinois case law had extended the chattel mortgage priority to the holder in due course of a conditional sales contract, the Illinois court held that its statute did not expressly make the lien subordinate to a conditional sale contract, as required by the Uniform Commercial Code.
Appellant also contends that appellees failed to prove that they had a lien or other interest in the automobile to support their possessory action. This argument is based largely on his contention that the title certificate and note were not properly introduced as evidence. Appellee Moore identified a photostatic copy of the title certificate. After appellant objected to the introduction of the copy, the witness explained that ap-pellees had again sold the vehicle and had endorsed the original certificate to show this sale and that the cer tificate had then been sent to the “State of Arkansas.” The witness also testified from and identified a photostatic copy of the title retaining note. The record recites that these instruments were handed to the court without any objection being made by appellant. Both the witness and his counsel referred to the instruments, and the witness read from the note. While the instruments were not marked as exhibits, it is obvious that the court and all of the parties considered that they were in evidence and so treated them. While the judgment does not specifically state that the court considered these instruments as exhibits, its specific findings that the automobile was sold on April 12, 1965, to Bishop under a title retaining sales contract signed by the Bishops and filed with the Motor Vehicle Division of the Arkansas Revenue Department, that the title issued by that division showed a lien for $1,237.53, and that the balance due appellees was $900, clearly show that these instruments were considered by the court.
In a trial before the court without a jury, this procedure was sufficient to constitute an introduction of the documents in evidence in absence of any objection by appellant to excerpts therefrom being read by the witness or to their being handed to the trial judge. In Austin Western Road Machinery Co. v. Blair, 190 Ark. 996, 82 S. W. 2d 528, it was contended on appeal that a pertinent county court order was not introduced in evidence. We said:
“* * * It is insisted that the order last mentioned was not introduced by appellee. This contention is based on the fact that the testimony fails to show that the order was read in open court. The evidence is to the effect that the clerk was requested to turn to a certain page of a particular record of the court and to read the order. He answered, ‘This order is dated June 16, 1930, calling in all county warrants,* and, when asked whether or not the warrant involved (No. 91) was shown to have been filed, re issued, and classified, he answered in the negative. The appellant was present by attorney who had the opportunity to examine the record and might have had the order read if he so desired. We are of the opinion that this was a sufficient introduction of the order. ’ ’
It is apparent that the parties understood that the validity of appellees’ lien was not an issue in the case. The real issue was the priority of the liens. This is clearly shown by this colloquy among the trial judge and the attorneys at the conclusion of the hearing:
“'COURT: I believe the only issue before the court is which lien has the priority?
MR. METHVIN: Yes, sir.
COURT: I believe the burden of proof is upon the defendant, isn’t it?
MR. METHVTN: Yes, sir.
MR. BRADLEY: Why the defendant?
COURT: Because in your answer you claim a lien in preference of the lien claimed by the plaintiff.
MR. BRADLEY: He alleged the lien in the first place.
COURT: That is true, but you don’t deny he had a lien for the purchase price. You just state your lien comes before the lien for the purchase price.
MR. BRADLEY: I don’t think it makes much difference.
MR. METHVIN: This is a rather vital question and if your honor would like us to submit short written briefs on it, I wouldn’t mind doing that. This thing involves not only this sale, hut many other sales.
COURT: Do you want to submit the question on written briefs or argue it?
MR. BRADLEY: I would rather argue it and get it over with.
COURT: All right. You may proceed.”
Appellees’ attorney had made an opening statement reciting the execution and filing of the title retaining note and the issuance of the title certificate showing the lien of appellees. He also stated that his clients contended that the purchase price lien shown in the certificate was prior and superior to the lien claimed by appellant, but that appellant contended that his lien had priority. Appellant’s counsel responded that he did not see any point in making a statement.
While appellant’s attorney did not specifically agree that the question of priority was the only issue, he certainly had a duty to advise the trial judge if he disagreed. His silence constituted at least a tacit acquiescence in the judge’s statements relative to the issues and burden. A party, by his conduct during the trial, may effectively abandon an issue made by the pleadings, so that he cannot rely on it in this court. Arkansas Real Estate Company, Inc. v. Keaton, 215 Ark. 179, 220 S. W. 2d 129.
Cases from other jurisdictions making an application of the rules stated in the Keaton case are appropriate and particularly applicable to this situation. Where a party causes a court to understand that certain facts are admitted, he cannot object to a hearing being conducted on the basis of that understanding. Sundgren v. Sundgren, 363 P. 2d 853 (Okla. 1961). Even though an issue is made by the pleadings, a failure of the party appealing to mention it on oral argument or to discuss it in briefs in the trial court prevents his raising the question on appeal. Shockley v. Abbott Supply Company, 50 Del. 510, 135 A. 2d 607 (1957). Where a case arising from a motor vehicle collision was tried on the assumption that there was no issue as to the death of a driver of the defendant’s vehicle, and there was no contention that proof thereof could not have been readily afforded had anyone considered it necessary, appellant could not raise the argument on appeal that there was no direct proof of death. Neilsen v. Uyechi, 172 Cal. App. 2d 508, 342 P. 2d 329 (1959).
The failure of appellant to question the court’s statement as to the only issue before the court would certainly have led the trial court to understand that no issue was being made as to the proof of appellees’ security interest.
We think that the evidence was sufficient to support the judgment, but even if it were not, appellant’s conduct justified the court in proceeding upon the theory that the only issue to be determined was that pertaining to priority of liens.
The judgment is affirmed.
Byrd, J., concurs. | [
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Hart, C. J.,
(after stating the facts). Counsel for the defendants seeks to uphold the decree under the decision of Martin v. Martin, 98 Ark. 93,135 S. W. 348, to the effect that family settlements are encouraged, and will not be disturbed unless strong reasons exist to warrant interference on the part of a court of equity. On the other.hand, counsel for the plaintiff seeks to reverse the decree upon the authority of Caldcleugh v. Caldcleugh, 158 Ark. 224, 250 S. W. 324; where it was held that, in determining whether undue influence had been exerted upon a person, all the surrounding circumstances which might make the person susceptible and yielding are to He considered, as undue influence reaches every case where influence is acquired and abused or where confidence is reposed and betrayed.
In the Martin case it was said that courts of equity have uniformly upheld and sustained family arrangements in reference to property where no fraud or imposition was practiced. Equity is anxious to encourage and enforce these settlements, in order to preserve the peace and harmony of families. This doctrine is recognized in the Caldcleugh case, but it was also recognized that, where fraud or undue influence is practiced, the family settlement will be set aside. This is in application of the well-established rule that, where there is a confidential relation between relatives dealing in respect to an inheritance or distributive shares of an estate, equity will readily relieve the party who has yielded to the coercive influence of the other. In such cases, the parties are required to deal with the utmost good faith towards each other, and equity will readily seize upon any fraud or unconscionable practice by one towards the other to induce the settlement.
In the present case it is.a significant fact that Mrs. Finney, the sister, and the attorney employed by the brother and sister to draw up the deed and mortgage, were not called as witnesses in the case. No reason is given for the failure to introduce them as witnesses. The plaintiff testified in her own behalf, and, in the course of her testimony, stated that she desired to tell the matter just as it happened. She testified that the home place, which consisted of 4 15/16 acres, was not worth more than $1,200. She is corroborated in this statement by the fact that her husband purchased the property for that sum a short time before his death, and paid for it partly in cash and partly on credit. The plaintiff said that the town property which she deeded to the defendants was worth $1,900. She is corroborated in this statement by the fact that her husband had obtained a mortgage from a building and loan company in the sum of $1,000 on the property, a*ud $800 of this amount was due and unpaid. As we have already seen, no attempt whatever was made by the defendants to dispute as to the relative values of these two pieces of property. It is true that the husband liad a small stock of goods, which be had purchased in the fall before his death, but the plaintiff testifies that he had sold nearly all the goods at retail, on credit, and that she had not been able to collect anything on the accounts. It is also true that she received $1,000- life insurance on her husband’s life. She was the beneficiary named in the policy, and might have kept the whole of it, but the record shows that she paid out $679 of this amount on the funeral expenses and debts of her deceased husband. According to her own testimony, she was an ignorant woman, and could scarcely read and write. No attempt was made to dispute her testimony on this point. It is true that she waited nearly a year before she attempted to rescind the settlement, but she explains this by saying that she did not [mow that she had given a mortgage to the defendants until she sought to have an abstract of title made on her place. She supposed that she had only executed a deed to the defendants to the town property, and that they had executed a deed to her to the home place. It will be remembered that she was an ignorant woman, and unaccustomed to signing deeds or to executing any kind of papers. She is corroborated, to some extent, on thiisi point by the fact that no attempt had been made by the defendants to collect the mortgage debt. The note first stated that it was payable on demand. Then there was written in it a clause to the effect that it was payable monthly at the rate of $20 per month, beginning on June 1, 1925, and that the failure to make three payments made the whole note due. Notwithstanding the clause and the failure to make payments, no attempt had been made by the defendants to collect any interest on the note, even though it purported to draw interest at five per cent, per annum from date until paid. The surrounding circumstances all corroborate the testimony of the plaintiff, and, as we have already seen, no attempt whatever was made by the defendants to contradict the testimony of the plaintiff.
Therefore we are of the opinion that the testimony brings the case squarely within the principles of law announced in the Oaldcleugh case. The plaintiff was air ignorant woman, and considered, when the defendant, Mrs. Finney, told her that it was best for all parties to have a family settlement instead of resorting to legal procedure, that they were threatening her with legal action unless she yielded to their demands. In this connection it may he stated that T. R. Snow .died without children, and his widow was entitled to one-half of his real estate. If the settlement as made should he allowed to stand, the result would bo that the plaintiff would not receive anything whatever; for the $800 mortgage would absorb all her equity in the home place, and she has conveyed to the defendants her interest in the town property. Nothing would be left her except some worthless notes, and she would, by the terms of the settlement, have given to the defendants, under the guise of a family settlement, all her interest as widow in her deceased husband’s estate. It will be remembered that, in addition to her dower interest, she would be entitled to the homestead for her life.
We are of the opinion that the chancellor should have set aside the family settlement as a legal fraud upon the rights of the plaintiff, or as having been procured by coercion or undue influence, in view of the fiduciary relation between the parties, and the decree will be reversed, and the cause remanded, with directions to the chancery court to set aside the family settlement and to allow to the plaintiff her rights of dower and of homestead under our statute. It. is so ordered. | [
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George Rose Smith, Justice.
The appellee is a non profit corporation organized to attract industry to Faulkner county. It owns two adjoining tracts of land, Tract A containing 178 acres and Tract B 140 acres. This suit was brought by the Highway Commission to condemn 15.81 acres in Tract B as a right-of-way for Interstate Highway 40. The jury fixed the value of the land at $20,000. The principal issue here is whether the court correctly allowed the jury to treat the land as two separate tracts in determining the benefits and damages resulting from the proposed impro.vement.
Tract A, roughly in the shape of a square, is bounded on the west by U. S. Highway 65. Tract B is an L-shaped tract lying immediately northeast of Tract A. Tract B abuts Tract A on the north for about three fourths of Tract A’s northern boundary and on the east for about one half of Tract A’s eastern boundary. Interstate 40, running north and south, will cross the eastern side of Tract B, the right-of-way being the strip involved in this case. Continuing southward, Interstate 40 will pass to the east of Tract A. The Brumley interchange will lie just east of Tract A and just south of Tract B. That interchange will provide a connection with U. S. Highway 65 to the west by means of State Highway 286, which will cross the southern part of Tract A.
The remaining essential background facts are best stated in chronological sequence.
February, 1962. Tract A purchased by C'onway Development Corporation.
January 31, 1963. CDC sent a letter to the Highway Department, (A) asking that the proposed Brumley interchange be relocated at a point just east of Tract A and (B) offering to facilitate that relocation by providing without cost to the Highway Department a right-of-way across the southern part of Tract A for Highway 286.
February 14, 1963. The Highway Department informed CDC by letter that it was recommending to the Federal Bureau of Public Roads that the suggested relocation of the interchange be put into effect. (That recommendation was eventually approved and the interchange relocated.)
June 19, 1963. CDC took an option to buy Tract B from its owner for $800 an acre.
December, 1963. CDC dedicated and platted Tract A as Conway Industrial Park.
April 3, 1965. CDC conveyed to the Highway Department 11.33 acres of the Industrial Park as a right-of-way for Highway 286, as previously suggested.
June 19, 1965. CDC exercised its option, to buy Tract B for $800 an acre.
July 15, 1966. This suit to condemn a right-of-way across Tract B was filed by the Highway Commission.
At the trial counsel for the Highway Commission insisted that Tract A and Tract B should be treated as a unit, so that the benefits accruing to Tract A from the construction of Interstate 40 could be offset by the jury against the compensation to be paid by the Commission for the right-of-way across Tract B. That contention is renewed in this court.
Upon the particular facts of this case the court was right in allowing the jury to consider the two tracts as separate parcels. It will be remembered that before CDC even had an option to buy Tract B it offered ta provide the Highway Department with a free right-of-way across Tract A for Highway 286 in return for the Department’s relocation of the Brumley interchange at a point where it -would benefit industries eventually occupying Tract A. That offer was accepted. Thus the parties in effect made an agreement by which CDC received the benefit of convenient access to Interstate 40, a controlled access facility, in retürn for the conveyance of 11.33 acres of Tract A for use as a right-of-way for Highway 286. The jury were certainly entitled to treat that exchange of benefits as a closed transaction by which CDC had paid the Highway Department in full for whatever enhancement in value might accrue to Tract A as a result of the construction of Interstate 40 and its Brumley interchange.
There are controlling differences between the situation in this case and that considered in Arkansas State Highway Commn. v. Dean, 244 Ark. 405, 425 S. W. 2d 306 (1968). In the Beam case the owners of a tract of land, at a time when they knew with reasonable certainty where the proposed highway would be located, bought an adjoining tract and then contended that the two parcels should be treated as a unit for the purpose of increasing their severance damages. We rejected that contention.
There is no parallel between that case and this one. Here the benefits accruing to Tract A from the construction of the highway would have been received by CDC whether or not it owned Tract B. Likewise the Highway Department would be required to pay exactly the same amount for the right-of-way across Tract B whether it was owned by 'CDC or by CDC’s predecessor in title. Thus to sustain the Highway Department’s present contention would unjustly enrich the Department by making CDC pay twice for the benefits accruing to Tract A — once by the conveyance of the Highway 286 right-of-way and a second time by the offset of those benefits against the compensation for the right-of-way being taken in Tract B. (The appellant is not in a position to argue that the jury may just possibly have awarded damages for the severance of the eastern edge of Tract B from Tract A, because the appellant made no objection to the only instruction that could be construed to submit such an issue to the jury.)
On the day of trial counsel for the Department filed motions to quash the jury panel and to disqualify Judge Roberts on the ground that he had a direct pecuniary interest in this case for the reason that there was pending in the same court a suit by the Highway Department to condemn land owned by Judge Roberts. A similar contention was rejected, for want of proof, in the D&cm case, supra, and in Arkansas State Highway Commn. v. Lewis, 243 Ark. 943, 422 S. W. 2d 866 (1968).
Here again the proof is deficient. In fact, counsel for the condemnor declined to offer proof in support of their motions. The burden was on the movant to establish the facts indicating Judge Roberts’s disqualification. Bass v. Minich, 194 Ark. 589, 109 S. W. 2d 139 (1937). There are no such facts in the record. Indeed, we are at a loss to see how the mere pendency of a condemnation action against Judge Roberts could give him a “direct pecuniary interest” in the case at bar. Of course the judge would be disqualified in his own case, but we have not been shown how that disqualification extends to other cases. To set aside the present verdict and judgment, upon some speculative assumption wholly unsupported by proof, would be a gross injustice to the ap-pellee.
Affirmed. | [
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McHaney, J.
On December 23,1926, appellant instituted an action against R. B. McCracken in the Conway Circuit Court for $984.16 on open account, and caused a writ oif attachment to be levied upon his stock of merchandise and fixtures in Morrilton, Arkansas. Thereafter, on January 3,1927, other of McCracken’s creditors filed an involuntary petition in bankruptcy against him, and appellee was appointed receiver of said estate. As receiver, appellee intervened in the action of appellant against McCracken, and filed a motion to quash the attachment and have the property attached turned over to the jurisdiction of the district court and the intervener as receiver, on the ground that McCracken was insolvent at the time of the levy of the attachment, and that the Federal court had aequiréd jurisdiction thereof by virtue of the petition in bankruptcy. Appellant filed a response to this motion, and, upon a hearing, the court found that an involuntary petition in bankruptcy was pending against McCracken, upon which there had been no adjudication, and directed that the attached property be held in statu quo pending adjudication on said petition, and directed that the receiver be permitted access to the property for the purpose of taking an inventory. On February 28, 1927, McCracken was adjudicated a bankrupt by the Federal District Court, and appellee was elected trustee of said estate, and, as such trustee, he thereupon filed a motion and intervention in the Conway ^Circuit Court in the case of appellant against McCracken, alleging said facts, and praying that the attachment be quashed, and that he be delivered the possession of said property as trustee in bankruptcy. Appellant filed a response to this motion, and, after a hearing, the court rendered judgment, finding that McCracken was insolvent at and prior to the time plaintiff’s attachment was levied, ordered the attachment dissolved, and authorized appellee, as trustee in bankruptcy, to take charge of the attached property.* The court further held that appellant was not entitled to a judgment against McCracken for the amount of his debt, and from the judgment against it appellant has appealed to this court.
It is first insisted that appellant was entitled to a default judgment against McCracken, since he was served with a summons, and made no appearance at the trial, either in person or by attorney. We do not see how a personal judgment against McCracken would or could have put appellant in any better shape to prove his claim in the bankruptcy court. If appellant had a personal .judgment against McCracken, since McCracken has been adjudicated a bankrupt and his affairs taken over to be administered by the court of bankruptcy, appellant would have been required to file its judgment as a claim against the bankrupt to have participated in the distribution of his assets. It could have done the same with its open account, and we conclude that appellant was not prejudiced by the failure of the circuit court to give it a personal judgment against him.
Appellant concedes that the real issue in the case is, whether the circuit court erred in quashing the attachment, and says that “the lien of appellant’s attachment must be sustained unless the intervener, by a fair preponderance of the evidence, has shown that R. B. McCracken was insolvent at the time the appellant’s attachment was levied.” If McCracken was insolvent at the time of the levying of the attachment, we understand the appellant to concede that the action of the court in quashing the attachment was correct. The burden of proof was on the intervener to prove MicCriacken’s insolvency at the time the attachment was levied. Lester v. Thomas, 174 Ark. 351, 295 S. W. 717. And this was a question for the jury, under proper instructions from the court, but a jury was waived in this case, and the matter .submitted to the court sitting as a jury. Therefore, under the settled rules of this court, if there is any substantial evidence tending to establish the insolvency of the bankrupt, McCracken, then this court will not set aside the verdict of the jury or the findings of the court sitting as a jury on account of the insufficiency of the evidence. It is the settled rule of this court that it will not do .so, even though, this court may be of the opinion that the preponderance of the evidence is against the finding of the jury or the court. In the case of Karr v. Bowen, 128 Ark. 307, 194 S. W. 498, we held that, in testing the sufficiency of the evidence to sustain the verdict, the highest probative value of which it is susceptible will be given to that end, together with all inferences reasonably dedueible therefrom, and the verdict will not be set aside because the preponderance thereof is against it.
The findings of the court, sitting as a jury, have the same binding effect on this court as the verdict of a jury. Appellant concedes this rule, but says there is no competent substantial evidence to support the findings and judgment of the circuit court.
It is conceded that McCracken’s indebtedness at the time of the attachment, exclusive of his mortgage indebtedness, was $4,087.15, and, including his mortgage indebtedness of $2,790, his total debts amounted to $6,877.15. We think there is substantial evidence showing McCracken’s insolvency, outside of the evidence claimed by appellant to be incompetent. McCracken repeatedly admitted his insolvency and incapacity to pay his debts. He told Ed Cordon, his attorney, that he was insolvent and unable to meet his obligations, and would go into voluntary bankruptcy, but was unable to pay the advance costs. McCracken also signed a written admission of insolvency, which was introduced and identified by Mr. Woodward, and he also admitted his insolvency to other witnesses. Appellant contends that these admissions of insolvency were incompetent in a suit between appellant and the trustee. Conceding, but not deciding, that this evidence is incompetent, still Mr. Gordon testified that McCracken’s total assets were slightly in excess of $3,000, exclusive of his equity in real estate and the small amount of collateral notes in the First National Bank. The face value of these collateral notes was only $225, but Mr. Tom Davis, vice president of the bank, testified that they were practically worthless. McCracken had been owing the bank for a long time, and, although the bank was demanding payment of him during this time, had been unable to collect, and had to renew his paper. Other witnesses testified to his inability to pay his current debts, or their inability to' collect them, and his frequent admission of his inability to pay. Appellee made an inventory and appraisement of the bankrupt’s assets shortly after the attachment suit was filed, and found he had only $3,086.02, according to the invoice and appraisement, and that the inventory was made on a basis of the original value of the goods, without depreciation, but that depreciation was figured on the fixtures. He was adjudged a bankrupt a little more than two months after the levying of the attachment, and this is a very strong circumstance of his insolvency at the time of the attachment.
We think the evidence amply sufficient to support a finding of insolvency at the time the attachment was levied, and the judgment is accordingly affirmed. | [
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Kirby, J.
This suit was brought by W. J. Chronister, doing business as Chronister Bros. & Company, against J. N. Oswalt, to foreclose a mortgage given by him to secure the payment of money for supplies for making a crop during the year 1925. It was alleged that he was indebted to the plaintiff in the sum of $372.20, on open account and a note. That he had paid nothing on said account, .and had sold six bales of cotton to Falls & Sinclair, cotton buyers, for a total of $388.19. That he ivas due the landlord for rent of said crop, $97.04, leaving a balance due from the purchase price of the cotton, which plaintiff was entitled to under his mortgage, in the sum of $281.15. That the mortgagor later had delivered some of the stock mortgaged with the crop, appraised at $204.50, for which he was entitled to credit on the mortgage indebtedness, leaving a balance due of $167.70, for which he prayed judgment against the mortgagor and the purchasers of the cotton.
Falls & Sinclair denied that any indebtedness was due from 'Oswalt to plaintiff and that he had executed any mortgage to secure same, and that he had failed to pay any such indebtedness. They admitted that they bought the six hales of cotton from Oswalt, and stated that they were informed and believed that Mrs. Huso Brown was the landlord of the defendant mortgagor, J. N. Oswalt, and held a prior and valid lien and right to the cotton bought by them, produced by the mortgagor, as a tenant upon rented premises, on account of having -furnished supplies to the tenant to enable him to make the crop, in a greater sum than the amount of the price of the cotton, which was paid to her as such landowner.
Oswalt filed no answer, and judgment w,as rendered against him by default.
It appears from the record that Mrs. Huse Brown, the landlord, was a sister of Oswalt, the tenant, and rented him the land for ,a certain price; one-fonrth of the cotton and seed and $60 standing rent for the corn land, $10 an acre.
Appellant testified that he had spoken to Mrs. Brown, the landlord, before taking the mortgage from Oswalt, the tenant, and had been informed by her that she did not intend to furnish him supplies, whereupon he took the mortgage on the crop and furnished supplies in the amount sued for.
Mrs. Brown denied having told appellant that she was not going to furnish Oswalt supplies. Stated that she had asked him if he had ,a mortgage on the crop, and he replied “No,” and she told him that she was supplying her brother Oswalt. She testified as to the amount of the rent due and the furnishing of so much corn, 75 bushels at $1.25, and $20 in cash, and that he was sick and unable to pick the crop, and she had furnished him $20 a bale, $140, with which to pay for the picking. She claimed other items of indebtedness due her from the tenant, the whole amounting to $35.82 more than the price realized from the sale of the cotton to Falls & Sinclair, and she and the tenant both testified that he still owed her between $20 and $30.
The court gave, over appellant’s objection, instruction No. 2 as follows:
“The landlord’s lien is superior to the mortgagee’s lien, and the landlord’s lien was not waived in the manner provided by statute as to third parties, or to the defendants, Falls & Sinclair. As between Mrs. Brown and Mr. Chronister, if the issue were between them, the testimony about her' telling Chronister that she wanted him to furnish supplies and she wouldn’t claim a lien against him, even if the testimony convinces you that she told him that, would not defeat the claim of Falls & Sinclair,' because the statute provides that the mortgagee, if he wants the landlord.’s lien waived, must make that waiver in the manner provided for by the statute. They didn’t do that. And on the waiver, if you find that were true, would not justify a recovery against Falls & Sinclair by Mr. Cimmistor. Tlie only question for you to determine is whether or not Mrs. Brown furnished the supplies that she contends she did furnish and for which they have paid. If so, as to them, it was a valid landlord’s lien. It would be different if the issues were between Mrs. Brown and Mr. Chronister, but, as between Falls & Sinclair, the landlord’s lien has not been waived.”
The court refused to give the instruction asked by appellant, that the landlord had no right to furnish money to have the cotton picked, as against the claim of appellee for supplies under his mortgage. The jury returned a verdict for the defendants, and from the judgment thereon this appeal is prosecuted.
The statute gives the landlord a lien upon the crop raised upon the rented premises for the value of advances made “to enable his tenant or employee to make and gather the'crop” (§ 6890, C. & M. Digest), necessary supplies, etc., and declares the lien shall be preferred over any mortgage or other conveyance of such crop made by such tenant or employee. Sections 6888 and 6891 provide that certain mortgages on crops given by the person cultivating the land of another are without validity, unless made with consent of the employer or owner of the land or crop, which consent must be indorsed upon such mortgage or conveyance, and that, as between a tenant or his employee, the landlord’s lien is only subject to the lien of the employee for services rendered towards the production of the crop, upon the landlord’s written consent indorsed upon the contract of employment.
It was not claimed in the instant' case that any indorsement or waiver by the landlord of her lien had been made upon the tenant’s mortgage of the crop for supplies, and the defendants, who had purchased the crop of the tenant produced on the rented land, were not bound to take notice of any other kind of a waiver, and were only bound, as the court told the jury, to show by a preponderance of the testimony the existence of a valid indebtedness or lien on the part of the landlord in an amount equal to or greater than the price paid by them in purchasing the crop grown on the rented premises.
The testimony, although unsatisfactory, is sufficient to support the yerdict, and, there being no prejudicial error in the record, the judgment is affirmed. | [
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Humphreys, J.
Appellant brought suit against appellees, E. P. Griffin and. J. L. Griffin, to recover judgment on two promissory notes in the sum of $5,000 each, of date March 14, 1932, bearing interest at the rate of eight per cent, per annum from date until paid, upon which there was due $11,567.07, including principal and interest, and in addition to praying for a judgment against said appellees, sought to foreclose a mortgage of even date with the notes given to secure same upon an undivided three-ninths interest in 640 acres of land in Pope and Conway counties, alleging that said E. P. Griffin was the owner of an undivided one-ninth interest therein by inheritance from his father, Dr. J. L. Griffin, and was the owner of an additional one-ninth interest by conveyance of G. W. Griffin, his brother, which conveyance to him was by deed duly executed, acknowledged and delivered by said G. W. Griffin and Bessie Griffin, his wife, on March 10, 1919, which appears of record in the record of deeds of Pope county, Arkansas, in Record Book 3-F at page 516, also that J. L. Griffin was an owner of an undivided one-ninth interest by inheritance from his father, Dr. J. L. Griffin.
It was also alleged in the complaint that G. W. Griffin was in possession of a part of said land, cultivating same, but that as to whether he claims any interest in it, except as tenant, appellant is not advised, but that G. W. Griffin and Bessie Griffin, his wife, were made parties to the suit to the end that they may assert any interest or right that they or either of them may have or claim in the mortgaged premises.
The notes and mortgage were made exhibits to the complaint and all of appellees were served with summonses which were duly served on February 18,1937.
On September 8,1937, a decree was rendered against E. P. Griffin and J. L. Griffin by default for $11,567.07, with eight per cent, interest from February 11, 1937, until paid and declared same a lien on their interest in 640 acres of land described in the mortgage, finding that E. P. Griffin was the owner of an undivided one-ninth interest in said land by inheritance from his father, Dr. J. L. Griffin, and was the owner of an additional one-ninth interest by conveyance from his brother, G. W. Griffin, which conveyance to him was by deed duly executed, acknowledged and delivered by the said G. W. Griffin and Bessie Griffin, liis wife, to appellee, E. P. Griffin, on March 10, 1919, and that, therefore, the said appellee, E. P. Griffin, is the owner of an undivided two-ninths interest in the above described land; and that J. L. Griffin is the owner of an undivided one-ninth interest in said land by inheritance from his father, Dr. J. L. Griffin. The decree provides that if said debt, interest and costs are not paid by December 31, 1937, the three-ninths undivided interest of E. P. Griffin and J. L. Griffin in said 640-acre tract be sold to satisfy the judgment, and appointed Hays Gibson, clerk, commissioner to carry out the decree.
A receiver was appointed by the court to take charge of the land and collect the rents during the pendency of the action.
A short time after the judgment and decree of foreclosure was rendered, G. W. Griffin and Bessie Griffin, his wife, filed a motion to set the decree aside for reasons unnecessary to state in this opinion. The motion was sustained and the decree was set aside and they were permitted to file an answer setting up their interest in said land and, in substance, pleading that the deed executed by them to E. P. Griffin on March 10, 1919, to an undivided one-ninth interest in said tract of land was intended to be and was a mortgage to secure loans not to exceed $3,500 to be advanced to them from time to time by E. P. Griffin, and that said mortgage was finally paid off in the year 1925, and that said E. P. Griffin should have conveyed their undivided one-ninth interest back to them at the time they paid the indebtedness they owed him; that appellant, through its president, J. M. Barker, Sr., had full knowledge that the instrument was intended as a mortgage, having advised E. P. Griffin to take the deed from G. W. Griffin and wife to protect him for loans which he had and intended to make to them; that at the time appellant acquired its first mortgage from E. P. Griffin and J. L. Griffin in 1926 to their interest in the 640-acre tract of land, and also at the time it acquired its renewal mortgage in 1932, which is sought to be foreclosed, appellant, through its president, J. M. Barker,. Sr., understood and agreed that neither mortgage covered the undivided one-ninth interest of G. W. Griffin in said tract of land and that said mortgage only covered the interest of E. P. Griffin to the one-ninth interest therein he had inherited from his father.
Appellant filed a response to the answer denying the material allegations therein.
The cause was submitted to the court on the 10th day of March, 1942, on the pleadings, exhibits thereto, and the testimony introduced by the respective parties and the exhibits thereto, resulting in findings and a decree that the deed from G. W. Griffin and Bessie Griffin to E. P. Griffin, dated March 10, 1919, was in fact a mortgage to the said E. P. Griffin, of which appellant, the Bank of Atkins, had notice, and that the sums due by G. W. Griffin to appellee, E. P. Griffin, were fully paid prior to the execution of appellant’s mortgage, and that said deed referred to in appellant’s complaint, now appearing of record in the recorder’s office in Pope county, Arkansas, in Deed Record 3-F at page 516, should be canceled, set aside and held for naught as a cloud upon the title of G. W. Griffin and Bessie Griffin, and dismissed the complaint for want of equity as to the one-ninth interest of G. W. Griffin and Bessie Griffin, and adjudged that the said G. W. Griffin recover of and from appellant or from the receiver, heretofore appointed herein, all rents due and collected by said receiver of said land, less one-ninth of all taxes paid by said receiver, upon the land described in appóllant’s complaint, from which findings and decree appellant has duly prosecuted an appeal to this court.
The sole question, therefore, growing out of the record in this cause is whether the deed executed by G. W. Griffin and Bessie Griffin to E. P. Griffin on the 10th day of 'March, 1919, was intended to be and is a mortgage in fact or an absolute deed conveying the one-ninth interest of G. W. Griffin and Bessie Griffin to E. P. Griffin in said 640-acre tract of land.
According to the record, Dr. J. L. Griffin, the owner of 640 acres of land, died intestate leaving his widow and nine children. Each of the children inherited one-ninth interest in said tract of land subject to the widow’s dower. E. P. Griffin became the administrator of the estate, ajid the several heirs who resided upon the land accounted to him for rents thereon. E. P. Griffin, J. L. Griffin and G. W. Griffin each owned a one-ninth interest in said tract of land. During the years of 1918 and 1919, G. W. Griffin became involved, and on the 10th day of March, 1919, he executed a warranty deed to E. P. Griffin for his undivided one-ninth interest in said land for a recited consideration of $3,500 in hand paid, the receipt whereof was acknowledged. The grantor placed upon this deed government stamps in the sum of $3.50 and canceled same. The deed was then recorded, and has remained on the record since that date.
G. W. Griffin testified, in substance, that the instrument was given to secure $500 that E. P. Griffin had already advanced and such sums as he would advance in the future to him in order to pay his attorney’s fee in the criminal prosecution against him and to pay off any judgment which might be rendered against him in favor of a certain party who was threatening a suit against him; that the party subsequently obtained a judgment for $2,000 against him, which was compromised for $1,200 and which he, E. P. Griffin, paid; that thereafter, from year to year, he paid out of sales from his crops, after paying his rent, the total amount which had been advanced to him, the last payment being made in 1925; that after making the payment to E. P. Griffin he said something to him about conveying the one-ninth interest back to him, but that he told him that he would attend to the matter when they partitioned the land, and that after that nothing was done as to satisfying the record or deeding the land back to him; that he had resided upon and cultivated a part of the land, which consisted of about 30 acres, after his father’s death and accounted for the rents to the administrator of the estate; that he paid the amount his brother had advanced to him in checks, but afterwards changed his testimony to say that he paid the same in cash; that the deed was given to secure the indebtedness aforesaid and was intended as a mortgage.
His wife, Bessie Griffin, testified that the last payment on the indebtedness to E. P. Griffin was paid out of cotton she had raised on the land.
E. P. Griffin testified, in substance, the same as his brother, G. W. Griffin, but in addition thereto stated that he consulted J. M. Barker, Sr., the president of the appellant bank, relative to the trouble his brother was in, and that Mr. Barker advised him to take a deed from G. W. Griffin to his one-ninth interest in said real estate to secure him for such loans as he had already made to his brother, G. W. Griffin, and such loans as he might make in the future, and that he followed his advice and took the deed as security for the advances he made him; that it was intended as a mortgage and not as a deed; and also that at the time he and J. L. Griffin executed the first and second mortgages to appellant he called the attention of J. M. Barker, Sr., to the fact that he had taken a deed from G. W. Griffin and his wife to their undivided one-ninth interest therein under his, Barker’s advice, and that he was not mortgaging G. W. Griffin’s interest in the real estate to appellant bank, and that J. M. Barker, Sr., told him that he remembered the incident and that he did not intend to take a mortgage on the undivided one-ninth interest of G. W. Griffin in favor of the bank.
J.' M. Barker, Sr., testified, in substance, that he knew nothing about G. W. Griffin and Bessie Griffin giving E. P. Griffin a deed to G. W. Griffin’s undivided one-ninth interest in the land, and that he had never advised E. P. Griffin to take such an instrument; that at the time E. P. Griffin and J. L. Griffin mortgaged their interest in the 640-acre tract to him he did not tell E. P. Griffin that he was not taking a mortgage on the interest of G. W. Griffin which G. W. Griffin had conveyed to E. P. Griffin. He also testified that when he took the first and second mortgages in favor of appellant to secure the indebtedness E. P. Griffin and J. L. Griffin owed said appellant bank he investigated the record and ascertained that on the 10th day of March, 1019, G. W. Griffin had conveyed his undivided one-ninth interest in said land to E. P. Griffin and that in making the loan he relied upon the record.
The mortgages given to the bank by E. P. Griffin and J. L. Griffin in defining the interest in said land they were conveying to secure the loans recite:
“ ... all undivided interest which we now have or which we or either of us may acquire by inheritance or otherwise in the future to the following described lands. J ?
The rule as to the quantum of testimony necessary to construe deeds absolute as mortgages is that the testimony must be clear, cogent and convincing.
This court said in the case of Frazier v. Lofton, 200 Ark. 4, 137 S. W. 2d 750, that: “Before a court would be warranted in setting aside the solemn recitals in a deed or any written instrument acknowledged, the quantum of testimony required must rise above a preponderance of the testimony. To do this the testimony must be clear, cogent and convincing. A mere preponderance is not sufficient.”
The court said in the case of Burns v. Fielder, 197 Ark. 85, 122 S. W. 2d 160, that: “The evidence necessary to impeach the solemn recitations of the deed must be clear and convincing. As was said in Bevans v. Brown, 196 Ark. 1177, 120 S. W. 2d 574, suck evidence ‘must be so clear that reasonable minds will have no doubt that suck an agreement was executed. It must be so convincing that serious argument cannot be urged against it by reasonable people’.”
In tbe case of Stephens v. Keener, 199 Ark. 1051, 137 S. W. 2d 253, this court approved a declaration of tbe Supreme Court of North Dakota in tbe case of Jasper v. Haven, 4 N. D. 1, 58 N. W. 454, 23 L. R. A. 58, as follows: “Tbe presumption that an instrument executed with tbe formality of a deed, or a contract deliberately entered into, expresses on its face its true intent and purpose, is so persuasive that be who would establish tbe contrary must go far beyond tbe ordinary rule of preponderance. ’ ’
We bave said in many cases that tbe evidence necessary to bave a deed declared a mortgage should be “clear, unequivocal and convincing.”
Applying this rule of evidence to tbe instant case, we do not think appellees bave introduced testimony sufficient to meet tbe requirement or test of tbe rule of evidence.
A very strong circumstance showing that tbe instrument was intended as a deed and not a mortgage is tbe fact that government stamps in tbe sum of $3.50 were affixed to tbe instrument. At tbe time tbe deed was executed tbe government required that deeds be stamped, and did not require that mortgages be stamped.
Another cogent circumstance indicating that tbe instrument was intended as a deed is that no attempt was ever made to bave same canceled, and tbe undisputed evidence shows that no attempt was made by E. P. Griffin to reconvey G. W. Griffin’s one-ninth interest in said real estate back to him. It has been permitted to remain on tbe record as a deed from tbe 10th day of March, 1919, until tbe present time.
We think G. W. Griffin is estopped after this great length of time from intervening in appellant’s foreclosure proceedings on tbe ground that the deed be exe anted to Ms brother on the 10th day of March, 1919, is intended as and is a mortgage instead of a deed. Appellant relying upon the record made by G. W. Griffin in that year, loaned E. P. Griffin and J. L. Griffin $10,000 under the belief that it was receiving a mortgage on a three-ninths interest owned by them in the 640-acre tract of land. Had G. W. Griffin required his brother to reconvey to him his interest in this land when G. W. Griffin claimed he paid off the mortgage, then it would have appeared from the record that E. P. Griffin and J. L. Griffin only had two-ninths interest in said land. In that event appellant would not have been misled as to the security it was receiving.
This court said in the case of Trapnall v. Burton, 24 Ark. 371, that: “When a man has deliberately done an act or said a thing, and another person who had a right to do so, has relied on that act or word and shaped his conduct accordingly and will be injured if the former can repudiate the act or recall the word, it shall not be done. ’ ’
We are not convinced from this record that it has been shown by clear, unequivocal and convincing evidence that the deed executed by G. W. Griffin and Bessie Grifin on the 10th day of March, 1919, to G. W. Griffin’s one-ninth interest in said land was intended to be and was a mortgage, nor are we convinced by even a preponderance of the evidence that appellant, through its president, J. M. Barker, ,Sr., knew anything about said deed or advised the execution thereof or that the bank’s president told E. P. Griffin that it was not taking a mortgage or intending to take a mortgage on G. W. Griffin’s one-ninth interest in said real estate which he had theretofore conveyed to E. P. Griffin.
The decree is, therefore, reversed and remanded with directions to the trial court to foreclose the mortgage lien of appellant against three-ninths undivided interest in said tract of land instead of two-ninths interest therein to pay the balance due said appellant by E. P. Griffin and J. L. Griffin. | [
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Humphreys, J.
On January 20, 1920, W. R. Alder sold and conveyed to Alex A. Pennington the following land in St. Francis county, Arkansas, to-wit: The south half of the northwest quarter of section twenty, township six north, range six east, containing eighty acres, more or less.
The warranty deed thereto was filed for record on January 21, 1920, and duly recorded on the 22d day of January, 1920.
At the time of the purchase Alex A. Pennington, a widower, moved upon .and occupied the farm which was improved and fenced on all sides. The fence on the north side was practically a new fence at that time. He married on December 27th or 28th, 1920, and several weeks thereafter W. R. Alder paid them a visit and walked with them all over the farm and pointed out the lines or fences enclosing- the farm. W. R. Alder was showing them the lands and boundaries thereof which he had sold Alex A. Pennington in January, 1920. In looking over the land they started at the northeast corner of the tract and followed the fence to the northwest corner and then around the farm to each corner. The fence on the north line consisted of posts and three wires, the wire being nailed occasionally to a tree which was in line. Alex A. Pennington and Josie, his wife, resided upon the land together and reared two boys, Darien and Mabry. Alex A. Pennington cultivated a portion of the land and used a part of it for pasture up to the fence on the north side, beginning with his purchase thereof and until 1935 when he died, and after his death appellants cultivated and pastured the lands in the same way up' to the north line fence. During his occupancy Alex A. Pennington constructed a small barn and tenant house on or near the north line fence, which was continuously used by him and appellants. At the time of his death in 1935, he was the owner of the eighty-acre tract and other lands in St. Francis county, Arkansas, and he left surviving him his wife, Josie Pennington, and two minor children by Josie and several children by his first wife. After his death, in a partition suit of all the lands he owned, the fee simple title to the eighty-acre tract was vested in the two minor children, Darien and Mabry, subject to the dower and homestead right of his widow, Josie Pennington. During the occupancy of the land by Alex A. Pennington and by his widow and minor children, bushes and trees grew up along the north fence so that in referring to it .it was spoken of as the old fence row. The fence in the old fence row was never changed save that new posts were set in the line or fence from time to time and on the east end for about 300 feet a new fence was built where it had been washed out by the flood of 1927, but the new fence was set in the same place that the old fence had occupied. The old fence has served as the division line between the eighty acres in question and the eighty acres to the north all these years, that is, since about 1915, and those who cultivated the land on each side cultivated it up to the old fence row.
After the death of Alex A. Pennington, Josie Pennington was duly appointed guardian by the probate court for the minors, Darien and Mabry. Thus the matter stood with no one questioning the ownership of the Penning-tons to the land included or embraced within the fences around said eighty-acre tract until about four or five years after Alex A. Pennington died.
In 1936, Eugene Woods purchased the eighty-acre tract north of the Pennington eighty-acre tract and he did or said nothing about the old fence row not being the correct division line between the two eighty-acre tracts until he concluded that the old fence row was not straight enough to suit him. There was a slight zig-zag occasionally in the old fence row. He then employed Burton P. Williams, an engineer and surveyor, to run the division line between the two eighty-acre tracts according to the government calls in their respective deeds, but had no agreement with Mrs. Pennington and her minor sons to run such a survey and did not notify them that he was going to do so. The Williams survey varied from the old fence row some twenty or thirty feet on the east end and crossed the old fence row and ran two or three feet north of same. He established the east and west corners and the survey had the effect of depriving Mrs. Josie Pennington and the minor heirs of about one acre of land all together. After Williams made the survey, Eugene Woods employed a crew of men to build a new fence conforming to said survey and when they entered upon the land to comply with his directions Mrs. Josie Pennington objected and asked them not to trespass upon her land. The crew had been told by Eugene Woods to build the fence “whether or no,” unless stopped by a legal proceeding. When they continued work on the new fence over her protest, she interviewed the prosecuting attorney and had them arrested.
Just what became of the criminal proceeding does not appear in this record, but at the time they were arrested, on the same day, Mrs. Josie Pennington, in her own behalf and as guardian for the minors, brought suit in the chancery court of St. Francis county, Arkansas, to enjoin Eugene Woods or any .one under his direction or authority from trespassing upon the strip of land between the old fence row and the Williams survey and to quiet the title in them to all the land south of the old fence row and for such actual damages which he and his crew had done and for punitive damages for trespassing upon the land south of the old fence row.
They alleged and predicated their right to have the title to the eighty-acre tract south of the old fence row quieted and confirmed in them up to and including the old fence row upon the ground that said eighty-acre tract of land was within the government calls of the deed from W. R. Alder to Alex A. Pennington or, if not, because W. R. Alder and Alex A. Pennington had acquired title thereto by seven years actual, open adverse and continuous possession thereof claiming title thereto up to and including the old fence row.
Appellee, Eugene Woods, filed an answer denying that the land up to the old fence row was within the government calls of the Pennington eighty-acre tract, or that Alex A. Pennington and his predecessor in title had acquired the title to same up to and including the old fence row by seven years adverse possession thereof. He also denied that he was liable for any damages, actual or punitive, for attempting to construct a new fence in accordance with the Williams survey.
The trial court found that the old line fence was not the- correct division line between the two eighty-acre tracts according to the government calls contained in the respective deeds and that the Penningtons had not acquired title by adverse possession of the eighty acres claimed by them up to and including the old fence line and dismissed the complaint of appellants for want of equity, from which is this appeal.
At the time this litigation arose two surveys had been made for the purpose of locating the division line between the two eighty-acre tracts according to the-government survey or government calls, one being the Williams^survey .and the other á survey made at the instance of W. R.'Alder in 1915 by the then county surveyor of St. Francis county, who is referred to in the evidence as a Mr. Newsome. W. R.'Alder had this survey made by the county surveyor several years before he sold the eighty-acre tract to Alex A. Pennington and W. R. Alder’s- son, D. B. Alder, built a wire fence along the line of the Newsome survey, which is now referred to as the old fence row, and the fence constructed by D. B. Alder is the fence which W. R. Alder pointed out to Alex A. Pennington as being the north line of his eighty-acre tract when he sold same to him.
There is no way of telling from the record made in this case which survey is the- correct survey as to government calls. The county surveyor who made the first survey is not alive and, of course, could not testify in the case as to the correctness of the survey made by him. The fact is that he was county surveyor at the time he made the survey and had the advantage of more witness trees and more established corners than did the private surveyor, Williams, who was employed to make the survey for Eugene Woods; but, be that as it may, there is no material conflict in the testimony that the old fence row was recognized by every one as the correct division line between the two eighty-acre tracts until Eugene Woods had the new survey made and attempted to make a change in the old fence row.
Neither is there any material conflict in the testimony to the effect that both W. R. Alder and Alex A. Pennington liad actual, open, continuous, hostile and exclusive possession of said eighty-acre tract, claiming to be the owners thereof up to and including* the old line fence for more than twenty years. There is no substantial evidence in this record tending to prove that W. R. Alder and Alex A. Pennington only intended to claim adversely to the real or true boundary line according to government calls, but, on the contrary, the decided weight of the testimony is that they held possession of said land up to and including* the old fence row, claiming title thereto for more than twenty years, as stated above. This is our conclusion after carefully reading the very voluminous record in this case. The evidence introduced, when abstracted, covers over 150 closely typed pages and it would extend this opinion to an unreasonable length should the substance of the evidence of each witness be set out. We, therefore, content ourselves with registering in this opinion our conclusion based upon the whole testimony.
The actual damage occasioned by entering upon the land in question and attempting to change the old fence row was inconsequential and the proof does not warrant a finding that .appellants were damaged more than $10 by reason of'the unauthorized entry of Woods. We think there is no ground at all upon which to base a judgment for punitive damages.
The decree is, therefore, reversed and the cause remanded with directions to the trial court to quiet title in appellants to the eighty-acre tract involved up to and including* the old fence row and to render judgment in favor of appellants for $10 damages. There can he no difficulty in arriving* at the exact location of the old fence row. All the testimony reflects just where it is. In fact there appears in this record a survey of the old fence row made by Mr. Buford and his survey of the old fence row does not seem to be questioned. The Buford survey of the old fence row might be incorporated in the decree to be rendered so as to make the description of the old fence row definite and certain. | [
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Mehaffy, J.
Appellant was indicted, tried and convicted in the Howard Circuit Court on a charge of seduction, and his punishment fixed at one year in the penitentiary and a fine of one hundred dollars. Appellant filed motion for new trial, which was overruled, exceptions saved, and appeal prosecuted.
The proof shows that appellant, who was about twenty years old, had intercourse with the prosecuting witness, Dura Stone, a girl about eighteen years old. Appellant admitted having intercourse with her.
Dura Stone testified that appellant promised to marry her.
Several men testified that they had had intercourse with Dura Stone, some of them fixing the date at which they had intercourse with her at a time prior to the time she says appellant promised to marry her. She denied having intercourse with any one except appellant, either before or after the time she says appellant promised to marry her.
Since appellant admitted having intercourse with the prosecutrix, there was no necessity for other corroboration of her testimony as to intercourse. There was some evidence corroborating the statements of prosecutrix as to promise of marriage.
Appellant’s first contention is that the court erred in not permitting the defendant to question Yee Stone, on cross-examination, with reference to her past conduct. On cross-examination Yee Stone, sister of Dura Stone, was asked: “I will ask you if it isn’t true on that occasion Max Dyer had intercourse with you?”
This question'was objected to, and the court said: “That is improper,” and defendant’s counsel said, “We offer to show that.” Objection was made to the ruling of the court, and exceptions saved. Witness was then asked: “Do you remember going to a dance at Hunter’s in the'fall of 1925?” She answered: “I do not remember. ' I went to several dances there, but do not remember when. ”
The court then said: ‘ ‘ What is the purpose of that ¶ ’ ’
The attorney for the defendant said: “We offer it as affecting her credibility. We offer to show by the witness that she attended a dance at Abb Hunter’s, in the fall of 1925, and in returning she was overtaken by Sam Schooley and Hilton Keath, and that she and Dura rode home with these men. That at that time she and her sister were under the influence of liquor, and that she drove the car into a telephone post.”
Thereupon the court said: “You can ask Dura that, because she is the prosecutrix. You can ask that so far as it applies to the prosecuting’ witness, but not as to her. ’ ’
Defendant’s attorney said: “At present we will not pursue it further,” and saved exceptions to the court’s ruling.
A witness may always be asked, on cross-examination, questions bearing on his or her character which tend to throw light on matters which are proper for the purpose of impeachment. She may be asked about particular acts which affect her credibility for the purpose of impeachment, and may be asked whether he or she has committed particular wrongful or immoral acts if the commission of'such acts would affect the credibility of the 'witness.
The court therefore erred in not permitting the defendant to ask Vee Stone the questions about her conduct.
This court, in a recent ease, said:
“It has always been held that, within reasonable limits, a witness may, on cross-examination, be very thoroughly sifted upon his character and antecedents. The court has a discretion as to how far propriety will allow this to be done in a given case, and will or should prevent any needless or wanton abuse of power. But, within this discretion, we think a witness may he asked concerning all antecedents which are really significant and which will explain his credibility. * * * A witness, upon cross-examination, may be asked whether he has been in jail, the penitentiary or State prison, or any other place that would tend to impair his credibility, and how much of his life he has passed in such places.” Whittaker v. State, 171 Ark. 762, 286 S. W. 937.
In the last cited case many of the authorities are cited and reviewed, and we deem it unnecessary to set them out here. The well-established rule in this State is that the witness, on cross-examination, may be asked any question that affects the credibility of the witness. A witness, however, cannot be asked questions as to the conduct and declarations of others, but the' question must be confined to his own conduct. And where witnesses are asked, on cross-examination, as to particular facts, as in this case, for the purpose of impeaching the witness, the answer of the witness concludes the party asking the question, and cannot be contradicted by other evidence.
The /State, however, contends that there is nothing in the court’s ruling on these questions that would justify this court in reversing the judgment of the lower court, and states that this case comes well within the'rule of this court that, where a question is excluded on cross-examination and exceptions saved thereto, in order to' show that prejudice resulted, the record must show what the answer of that witness would have been, and cites the recent case of Williams v. State, 175 Ark. 752, 2 S. W. (2d.) 36, delivered December 12, 1927. In that case the court said:
“At the outset it may be stated that the questions asked the witness on cross-examination by counsel for defendant were proper, under Hughes v. State, 70 Ark. 420, 68 S. W. 676, and Martin v. State, 161 Ark. 177, 255 S. W. 1094.”
The court also said in that case: “In this connection it may be stated, however, .that it is a settled rule of this court not to reverse judgments except for errors that are prejudicial to the rights of the defendant;” and cited a number of cases.
The court further said in the last case mentioned:
“So it will be seen that, if Miss Williams had answered the question in the negative, this would have ended the matter. If she had answered it in the affirmative, the answer would have been allowed to go to the jury for what they considered it worth as affecting her credibility. She did not answer it at all, and a majority of the court are of opinion that this brings the case within the general rule that, where evidence is ruled out as being’ incompetent, there must be set out in the record what the answer of the witnesses would have been. Otherwise the court would not know whether or not there had been any prejudicial error committed.”
The witness in the case of Williams v. State, supra, as stated 'by the court, did not answer the question and the defendant did not state what the answer would have been. But, in the case at bar, the attorney for the defendant, after asking the question and the court stating that it was improper, stated, “We offer to show that.” Whether he meant by that that we offer to show what we have asked, or we offer to show by this witness that the facts suggested in the question are true, may not be very clear, but it certainly appears, from the question and answer and statements of counsel, that they expected to prove the facts suggested' in the question by this witness. And if this witness would testify to that, it would certainly affect her credibility.
As to the next question, the one with reference to drinking whiskey and 'being- intoxicated, or under, the influence of liquor, the court would not permit the attorneys to ask the question nor the witness to answer it, and the attorney for the defendant said: “We offer it as affecting her credibility. We offer to show by the witness that she attended a dance at Abb Hunter’s in the fall of 1925, and, in returning, she was overtaken by Sam Schooley and Hilton Keath, and that she and Dura rode home with these men. That at that time she and her sister were tinder the influence of liquor, and that she. drove the car into a telephone post.” Here the attorney says that he will show that by this witness. We think this is equivalent to saying that this witness will testify to that. That is the only way he could show it by this , witness.
The court said this would be a proper question to ask Dura, the prosecuting witness, but not this witness. In this the court was in error. The State contends, however, that, because Mr. Steele said, “At present we will not pursue it further, ” he is not entitled now to a reversal because of this error. What the attorney meant by not pursuing it further it is impossible to- tell, but that he did not intend to abandon this question nor any rights that he might have is clearly shown by the fact that he objected to the ruling of the court, and saved his exceptions. He very probably meant, by not pursuing it further, that he did not intend to ask this witness about any other of her conduct or acts. At any rate, it is perfectly - clear that he told the court that he could prove by this witness that she had been under the influence of liquor at the time mentioned, and, when the court did not permit him to ask the question nor the witness to answer it, proper exceptions were saved.
We think that it not only shows what the answer would have been, but the exclusion of this testimony was prejudicial. It was especially important in this case that the defendant be permitted to cross-examine this witness and bring -out or develop facts that would affect her credibility, because the State relies largely, if not solely, on her testimony as corroborating the testimony of the prosecutrix that a promise of marriage was made. The State was required to prove thé promise, the prosecutrix testified to the promise, and this witness corroborated her. It was therefore important that the defendant be permitted to impeach this witness by asking these questions on cross-examination.
The authorities supporting the views herein expressed with reference to impeaching the witness on cross-examination are cited in the briefs of counsel, and need not he reviewed here.
It is next contended that the court erred in.permitting the State to prove a conversation the father of the prosecutrix and the father of the defendant had. It was not proper to admit in evidence this conversation. In the first place, the father of the prosecuting witness stated that his daughters had told him that Herbert had promised to marry her. The defendant had no opportunity to say anything, because at this time his father made the statement referred to, and we do not think there was anything said that would require the defendant to reply. In fact, it seems he did not have any opportunity to reply.
It is next contended that the court erred in excluding the testimony of Eldridge Eoss. We think this testimony was properly excluded. It would have had no tendency to show whether the girl was chaste or not. It would not even have a tendency to show her conduct, and what was said does not indicate what her conduct was. It is what might have been said to any chaste, pure girl, under the circumstances, and her answers are what such a girl might have made. The court should have required the State to use Ed Webb, if it desired to use him at all, before the defendant was required to offer his evidence.
It is next contended by the appellant that the court erred in refusing to give instructions numbers one, four and five. Instruction number one tells the .jury, in effect, that, although Dura Stone was chaste at the time of the promise of marriage, hut thereafter, and before they were to be married, became unchaste, they should acquit the defendant. If she was chaste at the time of the promise of marriage, and the defendant committed the crime, nothing that she may have done thereafter would affect his guilt or innocence. He either committed the crime at that time or he did not, and, if he did, her conduct thereafter, while it might be offered in evidence as affecting her credibility, would not affect his guilt or inno cence. The same may be said of the other instructions refused by the court.
We think the court properly instructed the jury, but, for the errors above mentioned, the case is reversed, and remanded for a new trial. | [
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McHaney, J.
This is an appeal from a judgment against appellant, holding him jointly liable with S. S. Wilkerson and Robert Wilkerson on a promissory note for $411 in favor of ¡appellees. Counsel for appellees have filed a motion to affirm the case for failure to comply with Rule 9 of this court, in that' appellant failed to abstract the pleadings, the evidence, the instructions, the judgment of the court, the motion for a new trial, if one was filed, and the order overruling-it, if one was made. The abstract and brief as originally filed on behalf of appellant failed to comply with said rule in the above particulars, and, after counsel for appellees had filed his brief urging an affirmance on this account, appellant applied to and obtained leave of this court to comply with said rule. He thereafter filed an amended abstract, setting out the instructions of the court., and interlined in his statement of facts page references to the transcript.
Ten witnesses testified in the case, but this evidence is not abstracted. Appellant contents, himself by a statement of what he conceives the facts to be, but does not set out the substance of each witness’ testimony. He does not abstract the judgment of the court, nor the motion for a new trial, if one, and the order overruling it, if one, and we cannot tell, without an examination of the record, whether there was a motion for a new trial, and, if so, whether the errors complained of were assigned in the motion for a new trial.
Under this state of facts we feel that we will have to sustain the motion to affirm for the noncompliance with this rule. The judgment is therefore affirmed. | [
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Hart, C. J.,
(after stating the facts). Counsel for appellants ask for a reversal of the decree upon the authority of Sager v. American Investment Co., 170 Ark. 568, 280 S. W. 654, where it was held that a cause does not stand for trial in equity until ninety days after issues joined, and that a decree prematurely rendered will be set aside on appeal. That case controls here. A decree was entered upon the pleadings upon the same day the answer of the guardian ad litem for the minor defendants was filed.
It is conceded by counsel for appellees that the decree was prematurely rendered, but they insist that the error was harmless, for the reason that the answer tendered no defense. Some of the appellants who were defendants in the chancery court were minors, and it was the duty of the guardian ad litem to deny all the allegations of the complaint and to require strict proof thereof. The guardian ad litem did file an answer denying the allegations of the complaint, but no proof was ever taken in the case, and a decree was entered before the minor defendants had any opportunity to take proof. In this connection it may also be stated that it was taken within ninety days after the 'adult defendants had filed an answer.
The prayer of appeal has been copied above, and purports to pray gn appeal for all the defendants by their attorney. The language of the prayer for appeal does not limit it to any defendant, as was the case in Camden National Bank v. Donaghey, 145 Ark. 529, 237 S. W. 457. Appellants all had a common defense, and the prayer for appeal, being* in general terms and for the defendants generally, without limiting* it to any individual defendant or defendants, the appeal must be deemed as taken for all.
The result of our views is that the decree must be reversed, because it was prematurely rendered, and the cause will be remanded for further proceedings in accordance with the principles of equity and not inconsistent with this opinion. | [
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Conley Byrd, Justice.
Involved in this appeal are the competing priorities between appellant A. F. House, Trustee; (a successor in interest of Modern American Mortgage Corporation), holder of a mortgage, and ap-pellees and cross-appellant James S. Scott, d/b/a Scott Lumber Company et al, holders of material liens on Lot 27, Plymouth Park Subdivision, an addition to the City, of Little Rock, Arkansas.
It is conceded that the materialmen’s liens have been properly perfected and that the mortgage was recorded before the commencement of construction. All arguments on this appeal concern the construction of the mechanic’s lien act, Ark. Stat. Ann. § 51-605 (1947), and the terms of the mortgage. The provisions of the mortgage here involved are as follows:
“Grantor has applied to the Grantee for a loan in the principal sum of Eleven Thousand Five Hundred Fifty and No/100 Hollars ($11,550.00) to be used solely for and in construction of a one-family residence on the lands above described, and the Grantee has agreed to make said loan for such purposes, and the Grontor is justly indebted to the Grantee for advances made or to be made hereafter by Grantee to Grantor from time to time for such purposes, aggregating the principal sum. aforesaid, each such advance to be evidenced by a negotiable promissory note of Grantor, payable to the order of Grantee, of even date with the date such advance is made and in the principal sum thereof, and each such note to bear interest from date until maturity at Six% per annum and from maturity until paid at 10% per annum, said notes to be due and payable as follows: On or before January 13, 1966. Grantee agrees that the acceptance and recordation of this mortgage binds Grantee, its successors and assigns absolutely and unconditionally, to make said loan and advances. Such advances will be made as requested by Grantor as such work progresses.
“Grantee in its discretion may require the Grantor to furnish to it, its successors or assigns, certificates of supervising architect as to partial completion prior to making any advance which it has agreed to make hereunder.”
Our mechanic’s lien preference statute, § 51-605, provides':
Preference over prior liens — Sale and removal of improvement under execution. — 'The lien for the things aforesaid, or work, shall attach to the buildings, erections or other improvements, for which they were furnished or work was done, in preference to any prior lien or incumbrance or mortgage existing upon said land before said buildings, erec tions, improvements or machinery were erected or put thereon, and any person enforcing such lien may have snch building, erection or improvement sold under execution, and the purchaser may remove the same within a reasonable time thereafter; Provided, however, That in all cases where said prior lien or incumbrance or mortgage was given or executed for the purpose of raismg money or funds with which to make such erections, improvements or buildings, then said lien shall be prior to the lien given by this act. (Emphasis supplied.)
The record shows that of the $11,550, only $8,277.50' was given by the mortgagee to its disbursing agent, Arkansas Abstract & Guaranty Company, to be spent for the benefit of the mortgagors, Roy Stillman and wife. Only $7,389.30 of this sum was disbursed. Of that, $4,-639.30 went for payment of labor performed and materials used in the construction of the building; $1,700 was paid to the mortgagee to release the lot from a prior mortgage given by John E. Olsen and wife to the mortgagee; and $1,050 was paid to John E. Olsen and wife as the balance due on the $2,750 purchase price of the lot. The record further shows that the mortgagee knew of such lot payments. Construction of the house was not completed but abandoned by Stillman.
The trial court ruled that the $1,050 payment to Olsen was an improper payment; that appellant was obligated to pay the $1,050 plus the remaining unexpended portions of the construction money mortgage into the registry of the court for the use and benefit of the lien claimants, whose liens totaled $4,731.81; that the ^amounts of $183 paid for hazard insurance, $45 for an FHA appraisal fee, and $450 for an attorney’s fee were advances secured by the mortgage, and that when such sums ordered were paid into the court’s registry, the mortgagee would have a lien superior to the mechanic’s lien claimants for the full amount secured by the mortgage.
The points for reversal relied on by the mortgagee are:
I. The Chancellor erred in fastening a lien on un-dishursed construction funds in favor of mechanics and materialmen.
II. There was no legal basis for the chancery court’s preferential treatment of mechanics and materi-almen as to construction funds spent for realty.
Cross-appellant James S. Scott raises the following points for reversal:
I. The trial court erred in declaring construction money mortgage lien to be superior to appellee’s mechanic’s lien.
II. The trial court erred in allowing appellant a credit of $1,700.00 to pay pre-existing mortgage indebtedness.
III. The trial court erred in declaring judgment to appellant for attorney fees and court costs superior to appellee’s mechanic’s lien.
These issues arise as the result of our decisions in People’s Bldg. & Loan Assn. v. Leslie Lbr. Co., 183 Ark. 800, 38 S. W. 2d 759 (1931); Sebastiam Bldg. & Loan Assn. v. Minten, 181 Ark. 700, 27 S. W. 2d 1011 (1930); Ashdown Hardware Co. v. Hughes, 223 Ark. 541, 267 S. W. 2d 294 (1954); Lyman Lamb Co. v. Union Bank of Benton, 237 Ark. 629, 374 S. W. 2d 820 (1964); and Planters Lumber Co. v. Wilson Co., 241 Ark. 1005 and 241 Ark. 1100, 413 S. W. 2d 55 (1967).
In the Mimtem case, we had under consideration a lump sum mortgage wherein the issue was whether the statute (Ark. Stat. Ann. § 51-605) required the lender to see to the use or application of the money raised by the mortgage or whether the purpose of the mortgage was controlling. In holding that the purpose for which, the money was borrowed was controlling, we there said:
“The binding force of a mortgage results from the contract between the parties as expressed in the mortgage, and becomes a lien on the real property from the time it is filed for record. The money borrowed pursuant to the terms of the mortgage is turned over to the mortgagor, and the mortgagee no longer has any control over it, unless there should be a special clause in the mortgage looking to that end. As said by Judge Sanborn, this would require the substitution of the word ‘use’ instead of ‘purpose’ in the statute; and the courts have no warrant to do this. There is nothing in the language used in the statute to indicate that the Legislature intended that the mortgagee must see to the use, or the application of the money raised by such mortgages.” (Emphasis supplied.)
In the Ashdown case the mortgage specifically recited that $4,500 of the $10,000 loan was made to clear the title of the land of an existing loan, and that the balance of the $10,000, which was $5,500, was to be paid out in four installments of $1,375 each upon completion of each of four tourist cabins. We there held that the $10,000 mortgage took priority over material liens such as those involved in this case.
In the Lyman Lamb case the mortgage provided:
“This loan shall be used for the purpose of construction of a dwelling house on the above described property and shall cover and secure additional advances to be made by mortgagee to mortgagors in the total amount not to exceed $14,500.”
We there held that, since the mortgage terms did not bind the mortgagee to make the future advances, made subsequent to the date of the commencement of construction did not take priority over materialmen’s liens.
In the Planters Lumber Co. case, Wilson Co. bad a mortgage similar to the one here involved, in which it had agreed to advance $15,000. The proof showed that Wilson withheld $3,200 of the $15,000 for payment of the lot that it had conveyed to the mortgagor. We there held that Wilson Co. was not entitled to priority for the purchase price of the lot and, contrary to the argument that the mortgagee recitals about the purpose of the loan, under the Minien case, were controlling irrespective of the application of the funds, we said:
“In Minten the lender disbursed the full amount of the mortgage money. In Minten there was no guarantee placed of record whereby the building and loan association was committed to a stipulated advancement for construction purposes. In both these respects the opposite is true in the case at bar.”
Whether valid or not, it will be observed that our cases have been much more liberal with the lender where there was a lump sum advancement for construction money purposes than where future advances were involved. This is partly due to the technical requirements of draftsmanship necessary to make a future advance relate back to the date of the filing of the mortgage, as shown in the Lyman Lamb case, supra.
Our cases point out that the mortgage, when placed of record, is constructive notice to the world of its terms, including the amounts to be advanced during construction of a building. This notice is important to material-men such as appellees in this case. By reading the instrument they are able to ascertain that “as the work progresses” the builder will have available, for the payment of materials, periodic advances from the mortgagee which the builder has contracted will be used solely in the construction. In Jack Collier East Co. v. Barton, 228 Ark. 300, 307 S. W. 2d 863 (1957), we held that a construction money mortgage was not entitled to priority unless the “construction purpose” was stated in the mortgage.
The technical draftsmanship requirements for future advances and recordation of construction money mortgages as set forth in the foregoing cases probably account for the specific language used in the mortgage here involved.
Thus the issue arises: Can the mortgagee who has bound the builder to use the funds “solely for and in construction of a one-family residence” through its own agent knowledgeably apply the funds to uses other than construction (such as the purchase of the lot) and still claim the benefit of the purpose language in the mortgage? We think the answer can be found in the Minten case, where we pointed out that the “purpose recital” of a construction money mortgage could be varied by specific language in the mortgage. Our answer to the question propounded is that where the mortgagee binds the builder to use the money SOLELY in construction of a building, we hold that for purposes of priority the mortgagee is also bound when disbursing the money through its own agent to expend it for “construction purposes only.”
For clarification to the construction industry, we point out that a lender, if it so desires, may make both a purchase money mortgage and a construction money mortgage, both of which could be superior to a mechanic’s lien, but that when it undertakes to combine the two in the same instrument it should follow the Ashdown case.
We also point out that when a mortgage has in good faith been placed of record for construction money purposes, the lender may properly make cash advances to the mortgagor in accordance with its agreement and will not be charged with any knowledge or application of the use of the funds made by the mortgagor even though the mortgagor violates the terms of the recorded mortgage and uses the funds for purposes other than construction. In other words, the only duty east upon the lender by the statute is that it disburse the money for construction money purposes. Once it has disbursed the money to the mortgagor for such purposes, the lender’s obligation under the statute is discharged, except for perhaps those instances involving self-dealings — i. e., it can not put form above substance by handing the money to the mortgagor with one hand and taking it back j.n the other.
We do not intend this opinion to be understood as saying that a lender who in good faith has made a construction money mortgage will not be protected when he is subsequently forced to purchase or pay off an outstanding lien or title to protect its security. Good faith in each instance is the guide.
Although we do not here reach the issue involved in the Minten case, because of the language of the mortgage here at issue, we think it fair to point out to the industry that in the future we wili re-examine the Min-ten case to the extent that it may hold that a lender can knowledgeably disburse construction mortgage money for purposes other than construction and still claim priority over the mechanic’s lien.
Our mechanic’s and materialmen’s lien statutes extend only to land and improvements thereon, Ark. Stat. Ann. § § 51-601 and 51-605 (1947), and do not extend to any fund or money except in the case of a bond executed in favor of mechanics and materialmen úpder Ark. Stat. Ann. § § 51-632 — 51-637, 51-641 1967). Stewart-McGehee Constr. Co. v. Brewster and Riley Feed Mfg. Co., 171 Ark. 197, 284 S. W. 53 (1926). Thus it follows that in the absence of an express contract making some different provision, the exclusive security of a mechanic of materialman is the land or improvement.
Here we can find no language making the material-men third party beneficiaries of the mortgage. Consequently, unless the materialmen are entitled to an equitable garnishment, the trial court erred in requiring the mortgagee to pay into the registry of the court the difference between the face amount of the mortgage and the portions of the mortgage properly advanced for construction purposes. The record is clear that the mortgagor abandoned his construction contract with a partially completed building. Therefore, there was no money owing by the mortgagee to Stillman that an equitable garnishment could reach.
The cross-appellant argues that since the mortgage required a construction of the building, the materialmen are entitled to priority under the People’s Bldg. & Loan case, supra. In that case the vendor of the property,, as a consideration for a $20,000 sale, took a contract in which the vendee paid $500 down and was required to make certain improvements on the property. We there held that the vendor, by requiring the work in question to be done, had subordinated his purchase money claim to the lien of the mechanics and materialmen.
The construction money mortgagee stands in a much different position than the vendor in the People’s Bldg. & Loan case. The first reason is that the statute places the construction money mortgagee in a different position; the second is that the construction money mortgagee furnishes funds with which materials and labor for the improvements are to be paid, unlike the vendor in the People’s Bldg. & Loan case.
The $1,700 returned by Arkansas Abstract to Modern American Mortgage Corporation to release the lot from the: Olsens’ mortgage amounts to simply applying the loan proceeds to the purchase price of the lot, and we hold that the trial court should have treated it in the same manner as it did the $1,050 payment to the Olsens — i. e., neither should have been allowed priority over the materialmen’s lien.
Cross-appellant does not dispute the $183 paid for hazard insurance and the $45 paid for FHA appraisal as advances entitled to priority over its liens. It does contest the allowance for attorney’s fees and court costs. We think counsel is in error to this extent, for counsel fees by statute are assessed as court costs, and we certainly think that court costs are part of the security bargained for in a construction money mortgage.
Therefore we reverse and remand this case to the trial court with directions to allow appellant as mortgagee priority for the amounts actually expended in construction of the building and the court costs, but to disallow the $1,050 and $1,700 expended by the mortgagee’s agent for the purchase of the land. So much of the decree as required the mortgagee to pay funds into the court under the equitable garnishment is also' reversed.
FoglemaN, J., dissents. | [
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Mehaffy, J.
Appellants, plaintiffs below, filed suit in Lafayette Chancery Court against the appellees, defendants below, alleging, in substance, that A. B. Dockery and Minnie Dockery, his wife, being indebted to said John D. Pelt in the sum of $2,276, did on January 6, 1921, execute their promissory note for said sum, due in one year and two years after date thereof, bearing interest at the rate of 10 per cent, per annum from date until paid, and that, to secure the payment of said .indebtedness, defendants executed and delivered to plaintiff a deed of trust whereby they conveyed to Louie Pelt, as trustee, the northeast quarter of 'section-20, township 15 south, range 22 west, in Lafayette County, Arkansas. At the time suit was begun there was a balance due on said indebtedness of $1,948.87 and interest: Deed of trust was recorded. Minnie Dockery joined with her husband in said conveyance, and waived her rights of dower and homestead. A. B. Dockery died in 1923, leaving as his only heirs Ester Dockery, Lester Dockery, Jim Dockery, Berry Dockery, Dary Dockery, Daniel Dockery, Groodley Dockery and Odessa Wesley, the appellees, and others who were made parties and summoned, but who did not appear or make any defense.
The appellees claimed title to one-half of the above described land under the following instrument:
“Know all men by these presents: That I, A. B. Dockery, of Lafayette County, Arkansas, for and in consideration of the sum of one dollar to me in hand paid by Ju'lia Dockery, receipt of which is hereby acknowledged, -and for the further consideration of the love and affection I have and bear for my said wife, Julia Dockery, do hereby grant, bargain, sell and convey unto the said Julia Dockery and unto her heirs and assigns forever, the following lands lying in the county of Lafayette, and State of Arkansas, to-wit: East half of the northeast quarter of section twenty, in township fifteen south, range twenty-two west, containing 80 acres of land, more or less. It being understood and agreed that this deed is to take-effect and be in force after my death, and that the title to said land is to remain in me so long as I may live. To have and to hold the same unto the said Julia Dockery and unto her heirs and assigns forever, with all appurtenances theréunto belonging. And I hereby covenant with said Julia Dockery that I will forever warrant and defend the title to the said lands against all lawful claims whatever.
“Witness my hand and seal on this 22d day of September, 1906. (Seal) A. B. Dockery.”
Said deed was properly acknowledged and recorded on the same day.
Appellees were the only heirs of Julia Dockery. Julia Dockery died in 1910. Appellees asked that said deed of trust to Louie Pelt be canceled in so far as it concerned the land described in deed of A. B. Dockery of September 22, 1906. Plaintiff J. D. Pelt died while the suit was pending, and J. H. Landes was appointed administrator ad litem, and suit was revived in the name of the administrator ad litem.
Plaintiffs filed a general demurrer to defendants’ answer. Court overruled the demurrer, and rendered judgment in flavor of defendants. Plaintiffs exceppted, prayed appeal to the .Supreme Court, which was granted.
The only question for the consideration of this court is whether the instrument above set out is a valid deed, or whether it is of a testamentary nature, and void. The appellant contends that the following clause in the instrument, “it being understood and agreed that this deed is to take' effect and be in force after my death, and that the title to said land is to remain in me as long as I live,” makes it void because it is contended that it conveys nothing in praesenti. Appellant states that it does not appear that the precise question involved here has ever been before this court,' but attention is called to the case of Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244. In that case the court said:
“The form is that of a deed, the words, ‘grant, bargain, sell and convey’ used, being appropriate to the office of the deed and inappropriate in a will. * * * The only words in them that can be said to be evidence of intention to make a will are, ‘and the deed shall go into full force and effect at my death,’ but we are to construe these words in connection with the whole deed. Every part must have its effect, if the same can be done consistent with the rules of law. ’ ’
The deed in the instant case has the clause, “it being understood and agreed that this deed is to take effect and be in force after my death, and that the title to said land is to remain in me so long as I live.” There is practically no difference between this clause and the clause in the ease above referred to, but in the instrument we are considering it is in the form of a deed, and uses the'words, “grant, bargain, sell and convey”; in fact all of the words necessary to make a valid deed. It was executed by Dockery on September 22, 1906, acknowledged the same day, and filed for record and recorded on the same day. It must be kept in mind that every part of the instrument must have its effect, if the same can be done consistent with the rules of law. Construed in this way, it was evidently the intention of Dockery to give the. land to his wife.
The appellant cites and relies on Murphy v. Gabbert, 166 Mo. 596, 66 S. W. 536, 89 Am. St. Rep. 733. The court held in that case that it was not the intention of the grantor to pass any present interest in the property.
There is a conflict in authorities on this question, but the decisions of this court are controlling, and settle the question in accordance with the decision in. the case of Cribbs v. Walker, supra.
When the whole deed is considered, it seems clear > that it was the intention of the grantor to deed the property to his wife. The rule of construction is that effect must be given to the intention of the party. “The fundamental rule in the construction of both wills and deeds is to give effect to the intention of the party executing the instrument, to be arrived at through the language used as found in the entire writing, construed in the light of all the attending circumstances, and in some oases aided by extrinsic evidence of the maker’s real intention; or, where the language of the instrument is doubtful, as to how he regarded the transaction, such aider, however, being subject to the general rule that intention plainly expressed by the face of the instrument cannot be contradicted by parol. ” 8 R. C. L., p. 931.
“There is more or less conflict of authority as to the effect of recitals attempting to postpone the operation of a deed until the grantor’s death. Many cases are to be found in which instruments containing such words have been construed as being testamentary, while others treat the words that the instrument is not to take effect until the death of the grantor, as a clumsy way of express ing’ that the deed is not to take effect in possession or in the enjoyment of the property until the grantor’s death. If it is necessary to hold that the instrument is a deed in order to uphold it, the general rule applies, of course, that the court will, if possible, so construe the instrument as to give it effect, and that a construction of an instrument which would deprive it of any effect will not be adopted if it can reasonably be avoided; and the practical construction given the instrument by the parties may also be considered, as where the grantor allows it to be recorded and permits the gradtee to sell the land, or where, in a partition suit brought by the grantor, both parties to the instrument treat it as a deed.” 8 R. C. L., p. 932-3.
When we consider the whole instrument, and keep in mind the fact that it was not only executed and delivered but recorded, and that there was no power of revocation, and the further fact that we should give the instrument such a construction as will uphold it if possible, it seems to us that the instrument must be construed as a deed. In the’case of Bunch v. Nicks, 50 Ark. 367, 7 S. W. 563, in construing a deed which provided, among other things, that it should not go into full force and effect until the grantor’s death, the court said:
“We think the instruments in question were valid deeds, and conveyed a present title to the donees, with the postponement of the right of the use and possession until the donor’s death. It is obvious that the intention of the donor was to give his property to the children •mentioned in the deeds, reserving the right to use and hold the same and to enjoy the profits thereof during his life. The evidence of this intention, afforded by the instruments themselves, are:' (1) The form is- that of a deed, the words, ‘grant, bargain, sell and convey,’ used, being .appropriate to the office of the deed, and inappropriate to a will. (2) They (contain a covenant of warranty, whereby the donor agrees to forever warrant and defend the title to the land to the donees and their heirs and assigns, against all lawful claims whatsoever. (3) The-donor himself calls them deeds of conveyance; and it is unreasonable to suppose he would call what he intended as a will deeds of conveyance. (4) They were executed, delivered and acknowledged as deeds. The only words used in them that can be said to be evidence of an intention to make a will are, ‘and the deed shall go into full force and effect at my death.’ But we are to construe these words in connection with the whole deed. Every part must have effect, if the same can be done consistently with the rules of law. Construed in this way, it is evident that the intention of Nicks was to give the land and sell the personal property he had at the time they were executed, to the grantees, and to reserve the use and enjoyment thereof for and during his life.”
Numerous authorities are cited in the above case, and it has since been followed by this court. See also, Seals v. Pierce, 83 Ga. 787, 10 S. E. 589, 20 Am. St. Rep. 344; Love v. Blauw, 59 Pac. 1059, 61 Kan. 496, 48 L. R. A. 257, 78 Am. St. Rep. 334; Pentico v. Hays, 88 Pac. 738, 75 Kan. 76, 9 L. R. A. (N. S.) 224.
The court below was correct in overruling the demurrer and in rendering the decree for appellees, and the decree is therefore affirmed. | [
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Mehaffy, J.
In 1925 the Legislature passed an act to provide a stock law and to regulate the operations of the same in Monroe County, Arkansas. Section 1 provides for the establishment of the district, embracing the whole of Monroe County, and § 2 makes it unlawful for the owner or manager of the stock described to permit said stock to run at large beyond the limits- of his own land or lands leased, -occupied or controlled by him within the territory -of Monroe County. Section 3 provides for impounding the stock, giving notice, and for the sale of the property and for the charges for keeping. It also provides, in addition to the charges for keeping the .stock, that the owner ,be liable for all damages committed by the stock while running at large. Section 4 provides that the owner permitting the stock to run at large shall be guilty of a misdemeanor, etc. Section 6 is- as follows:
“On Wednesday, the first day.of April, 1925, there shall be held an election at the usual voting places in the various townships in Monroe County, at which election there shall be submitted to the landowners of Monroe County the question of ‘For stock law’ and ‘Against stock law,’ at which election persons shall be eligible to vote as hereinafter provided.”
The act then provides- for the sheriff.giving notice of the election; and also provides for the election commissioners to appoint judges, and the judges -are required to take, the oath as in the general election laws. The act also provides that the election commissioners, not later than 10 days -after the election, shall proceed to ascertain and declare the result of said election, and within 15 days after the date of the election shall file in the office o'f the county clerk of said county a certificate, and in the event a majority of the voters vote for the 'stock law, the county court of Monroe County shall, on the first day of its July term, 1925, enter an order upon the county court records' of said county, declaring the act adopted and in full force and effect. And it is further provided that this act shall, from and after the date of said order of said county court, to-wit, the first Monday in July, 1925, take effect and be in full force and effect.
There was no emergency clause, and the act could not take effect until 90 days after the adjournment of the Legislature, which was the 12th day of March, 1925. No election was held on April 1, 1925, but an election was held on the 11th day of August, 1925, and the county court acted upon the report of the commissioners on the 5th day of October, 1925.
The appellant, whose hogs had been impounded, brought a suit in replevin to recover four head of hogs that had been impounded. There was a verdict against appellant, motion for new trial was filed and overruled, and the appeal is prosecuted to this court to reverse said judgment.
There was no effort to enforce the stock law in Monroe County until after passage of act 84 in 1927. Act 84 is an act to validate special elections held for creation of no-fence laws, and it provides that all elections heretofore held in the State of .Arkansas where the question of the creation of no-fence law or stock law has been submitted to the vote of either the electors of said no-fence district or the landowners of said district, as prescribed by said acts, where the majority of the voters in said elections voted in favor of said law, notwithstanding the fact that said elections so held were irregular by reason of same being held on a different day from the day named in said acts or other causes, that said no-fenee law or stock law be, and the same are hereby declared to be, valid, effective and binding, and shall be in force and effect from and after the passage of this aot as if said elections were held in strict conformity with the law creating the districts.
The first question to be determined is whether the election held on August 11, 1925, was void, the act requiring the election to be held on the first day of April, 1925.
■ When the Legislature fixes the time, names the day on which an election shall be held, said election must be held on that day. The holding of an election on any day other than that named by the Legislature is not authorized, and the election is void.
“For the purpose of organizing the system of government hereby established and putting the same into operation in the first instance, the selectmen of the town of Fall River, for the time being, shall, within -30 days after the- acceptance of this act, issue. their warrants, seven days at least previous to the day so appointed for calling a meeting of said citizens, at such place and hour, as they may deem expedient, for the purpose of choosing a warden, clerk, and inspectors for each ward, and all other officers whose election is provided for in the preceding sections of this act. The selectmen issued their warrant, warning the electors to hold their first meeting, under the statute, for the choice of ward and city officers, and for the election of a ■county treasurer. It was held by the Supreme Court that, as to the office of county treasurer, the election was illegal and void.” Paine on Elections, 268.
“But statutes prescribing the days for holding an election are generally mandatory, and elections held on different days will be void. * * * Where it is provided by law that an election shall be held within 50 days after the presentation of the petition therefor, an election held after the expiration of the 50 days will be void. ’ ’ Paine on Elections, § 310.
“It is, of course, essential to the validity of an election that it be held at the time and in the place provided by law.” McCrary on Elections, 4th edition, 153.
Again, it is said in § 176 of McCrary on Elections: “It must be conceded by all that time and place are of the substance of every election, while many provisions which appertain to the manner of conducting an election may be directory only. ’ ’
‘ ‘ Those provisions of a statute which affect the time and place of the election and the legal qualifications of the electors are generally of the substance of the election, while those touching the recording and manner of conducting the mere details of the election are directory.” McCrary on Elections, 228.
This court said, in deciding when a law went into effect:
“No public act shall take effect, or be in force, until ninety days from the expiration of the session at which the same was passed; and consequently the act did not take effect, and was not in force., until ninety days after the 10th of April, 1869; so that, in fact, on the 3rd of November, 1868, ten months before the act took effect, when, it is claimed, an election was held and a majority vote taken in favor of railroads, the act authorizing the same was not in force; and if not, then the election was held without authority of law, and was void. ’ ’ State v. Little Rock, Mississippi River & Texas Ry. Co., 31 Ark. 701.
The Legislature alone had authority to provide for an election, and any election held without authority is a nullity.
“It is-claimed by plaintiff that the ordinance under question by its own terms could not have taken effect until the 11th day of March, and that no step could have been legal under it until that time. That by its terms the election, even if legal, could not be held until 30 days after the 11th of March, or until the 12th of April, instead of the second of April, as the day for election; it was an impossibility which could not be accomplished, and therefore any action held under it was void.” Hensley v. Hamilton, 2 Ohio Circuit Decisions, 114
“When therefore the day of election for town officers was changed by law, we are of opinion the law necessarily changed the day for the election of trustees. The change followed as a logical result. The provisions of acts 1867 and 1869, when considered with the Constitution and the township organization law, clearly lead to this conclusion.” Kelley v. Cabu, 112 Ill. 23, 1 N. E. 167.
In the above case the town had held two elections, but by the general law it was provided that the election for officers contemplated by this act shall be held on the second Tuesday in April. The important question in the case was whether the election held on the first Tuesday in April was held on. the day provided by law. Prior to the act under discussion by the court there had not been uniformity, elections in some places being held on one day and others on a different day, but the court held the day named for the election was the only day on which an election could be held.
The Kansas court said:
“And, having fixed the time within which such an election must be held, it seems to us it intended that compliance with this requirement should be essential to its validity. It may perhaps be worthy of notice, though only a slight circumstance, that the requirement of notice and the limitation of 50 days are both in the same section and couched in the same terms of obligation. The publication of notice comes plainly within the decision in 1 Kansas 273, as essential to the validity of the election. Does it not seem reasonable that the Legislature intended that both should be essential? We are led to the conclusion that the district court erred in its ruling, and the case will be remanded with instructions to reverse the order refusing a temporary injunction, and proceed further in accordance with the views herein expressed.” Gossard v. Vaught, 10 Kansas 162.
In Missouri an election was held to remove a county seat, and the order for an election was made upon the 5th day of April, calling the election for the 14th day of June following, a space of 70 days. The Court said:
“The commissioners had the power, upon the establishment of the fact that three-fifths of the legal voters of the county so petitioned, to order an election to decide the matter of the removal of the county seat from one point and its location at another; but such election they must cause to be held within fifty days from the establishment of such fact, and in time to afford thirty days notice of the election. The right to order being thus circumscribed, the board could only so proceed, unless, as is suggested, the time prescribed was simply in the nature of a direction, and not a mandate. As has been frequently decided by this court, when the language-of a statute is plain, its intention must be deduced from such language, and the court has no right to go beyond it. * # * 'So here the commissioners, ‘within fifty days thereafter shall cause an election to be held.’ It would be straining the meaning of words to say that the natural, ordinary interpretation of such language was that, -sometime within fifty days, the commissioners should order an election to be held at any future time their discretion or caprice might dictate; and yet this is the conclusion urged by counsel for defendants, in substance. He claims that, jurisdiction once acquired by the presentation of the petition, the subsequent order in the case at bar was what the statute contemplated, or at most an irregularity. * * * When the Legislature has said to this board of special limited powers, You shall cause an election to be held within a certain time, who shall say that the matter of time is immaterial? The intention may have been to protect the petitioners; for, if the construction urged be adopted, the board could place the election at such a distance of time as to- render the order a practical nullity; and there would then be no redress, as that would be simply an error under the regular pursuit of authority, not subject to review by this or any other court; or the intention may have been something other, or for multiple purposes; but there stands the plain language, and it should not be frittered away.” State v. McGinnis, 6 Nev. 101.
“After the passage of this act, the general election, by the new Constitution, was changed to November; and it is now insisted that the true interpretation of the act fixed this election to be holden annually, at a general election. We put a different construction upon, the provision. The word ‘general’ was merely descriptive of the election, the time of holding which was fixed on the ‘first Monday in Angust,’ 1847, ‘and every year thereafter,’ which would fall again on the first Monday of August succeeding. Had it been the intention of the Legislature to make the-‘general’ election day the time, instead of the (first Monday in August,’ the date of the month and the day of the week may well have been omitted, without leaving the least ambiguity, in case'of any change in the laws; or the same thing would have been accomplished by repeating the terms, and at the ‘general’ election ‘every year thereafter.’ * * * Much additional technical verbiage might have been added, the proofs could not have been enlarged, nor essential facts multiplied. He would have a right to show that the election had not been held by persons authorized to hold it, or that proper returns had not been made, evidencing and declaring that election.” The People ex rel. Dixon v. Shaw, 14 Illinois Rep. 476.
“By the Constitution (art. 10, § 2), the power of fixing the times for the election of county officers is vested in the Legislature. When a time has been so fixed, any election held at a different time is unauthorized and void. The act of April 18, 1870, having repealed all prior laws on the subject, its first section contains the only provision fixing the time for the election of county auditors. The single question in the case therefore is, what time does that section fix for the election? * * * fiayg plainly fixed the election on the second Tuesday of October, 1871. It is therefore useless, and it would be going out of the case, and in effect deciding the rights of parties not before us, to inquire whether the Legislature had the constitutional power to pro long the .old terms of office. Whether they had or had not -this power, they have fixed the election for October, 1871. And we can see no force or logic in the argument by which it is attempted, first, to strike from the section the words of the proviso prolonging the term,' and then, by a literal rendering of the remaining words of the section,, by themselves considered, to determine the time fixed for the election. This would be to mutilate the ‘section and garble its meaning. The legislative intention must not be confounded with their power to carry that intention into effect. To refuse to give force and vitality to a provision of law is one thing, and to refuse to read it is a very different thing. * * * The meaning of the Legislature must be gathered from all they have said, as well from that which is ineffective for want of power as from that which is authorized by law. Read in this way, the meaning of the section admits of no controversy. It fixes the election on the second Tuesday of October next preceding the expiration of the term as so prolonged, which will be the second Tuesday in October, 1871.” State v. Dombaugh, 20 Ohio 167.
The act in question fixes the date of the election on the first Monday in April. The meaning of this admits of no controversy. The Legislature had the power, in fact it was the only branch of the government that did have the power, to fix the date, and it fixed the date so that there can be no question about it. And elections must be held on the day fixed by law, and those elections held at other times, at times not fixed by law, are void. The Legislature fixes the time for the election-of State and county officers. The Legislature only can change that time. The law fixes the time for primary election in Arkansas. If no election was held on that day, would it be contended that the sheriff could give notice of an election three of four months thereafter, or any time thereafter?
This.court said, in-a case in replevin for possession.'of hogs: “The point in the case is whether the statute in question was ever put in force in the territory where appellant’s hogs were found running at large.
“The act provides for submission to the voters, either at a special or general election, of the question whether or not it shall be put in force in the given territory, and that, if it shall appear that a majority of the votes cast on the question are in favor of the law, it shall be the duty of the county court or county judge to make and enter an order declaring the law to be in force in the territory. * * * The question of adopting the statute was submitted to the voters of Hempstead County at the general election in 1902, again at the general election in September, 1904, and at the presidential election in November, 1902, but did not receive a majority of the votes on the question at either of these elections. It was again voted on at the general election in 1906, and received a majority of the votes, whereupon the county judge made an order declaring the statute to be in force in the territory named.
“It seems clear to us that the statute contemplated a submission of the question to the voters at a special election to be called by the county judge, or, in the event of his failure to call the election, that it be submitted finally at the next succeeding general election for State and county officers. The language of the statute does not reasonably admit of any other construction. It says that, “in the event such special election be not ordered and held prior to the next general election for State and county officers, the question shall then be submitted to the electors.” * * * Therefore it cannot be presumed that the Legislature intended that the question might be submitted every time and as often as the election commissioners might see fit to print the question on the tickets at a general election.
“It was doubtless within the power of the Legislature to provide for resubmission of the question of adoption of the statute by the voters, but a considera tion of the language of the statute convinces us that such was not the intention.” Hood v. Bell, 86 Ark. 366, 111 S. W. 801.
“But the specification of time in a statute may be imperative and may operate as a limitation upon the power of those who are to act under it. This will depend upon the intention of the Legislature; and an intention to make time of the essence of the thing to be done may :be disclosed either by the express language of the law or by necessary implications from its terms.” Black on Interpretation of Laws, 2 edition, 547.
It may be conceded that the authorities are not in entire harmony on the question whether the provision in the statute fixing a day for an election is mandatory or directory. Some courts have held that it is directory.
Appellee calls attention to an Oklahoma case which holds that the provision in the statute is directory. In that case, however, it was' impossible to hold the election on the day fixed by the statute. Board of Directors of School District 27 of Okla. County v. Board of Excise of Okla. County, 31 Okla. 553, 122 Pac. 520.
Appellee also calls attention to the same case in Annotated Cases 1913E, 639, and calls, attention to the note dealing with various phases of elections held on the wrong date. But the notes referred to state that the statutory provision as to the time for holding an election is ordinarily mandatory.
Appellee also calls attention to 9 R. C. L. 998, and quotes from § 19, on page 998. But the section quoted from begins with the announcement of the general rule as follows: “It may be stated as a general rule that the election of a person to an office at a time not authorized by law is void.”
The section also contains the following: “From these decisions the rule may be deduced that, where the date of the election is not left to the determination of the officials, but is unequivocally fixed by statute, the election officials have no authority to change the dh'te. In other words, such a statutory provision is ordinarily to he regarded as mandatory. ’ ’
The same section also contains the following statement: “And so it has been frequently held that, where an election is not held within the time limited, it cannot be held afterwards, and, if so held, is void.”
While there is authority for holding the statute fixing the day of election as directory, the weight of authority, and, we think, the better rule, is that such provisions are mandatory.
Another question discussed by counsel is whether the Legislature had authority to submit the question to the people. The constitutional amendment adopted in 1920, before the passage of the act, contains, among other things, the following: “But no measure shall be submitted to the people by the General Assembly except a proposed constitutional amendment or amendments as provided for in this Constitution.”
Appellee contends that the Legislature had authority, and states that the identical question was brought before this court in Lemaire v. Henderson, 174 Ark. 936, 298 S. W. 327. The court there construed the act of 1927, which provided for the establishment for consolidated school districts in counties having a population of 75,000 or more, etc. The court said in that case:
“The statute does not delegate legislative power, so long as it is complete in itself when it has passed the Legislature, even though it is left to a vote of the people when it shall come into operation. In the case at bar the law is complete in itself. It declares the result which may come from holding the election under its provisions. It is simply a case where the Legislature passed a complete statute, but made its enforcement depend upon the will of the people, to be expressed at an election called under the provisions of the act for that purpose.”
That act, however, provided that it should take effect and be in force from and after its passage. It was a complete act, and went into effect without regard to any election, but it simply provided that, upon the petition of not less than 100 qualified electors of- any one county, the board might call an election of all the legal voters in the county. And if a majority voted for the county school district, the county board of education should then enter an order, etc.
But act No. 108 of 1925, providing for a stock law in Monroe County, provides: “In the event the majority of thé .voters voting at said election shall vote ‘For stock law,’ as shown by said certificates of said election commissioners, the county court of Monroe County shall, on the first day of its July term, 1925, enter an order upon' the county court records of said county, declaring this act adopted and in full force and effect, and this act shall, from and after the date of said order of said county court, to-wit, the first Monday in July, 1925, take effect and be in full force and effect, and all laws and parts of laws in conflict herewith be and the same are hereby repealed.”
This act did not go into effect merely by its passage by the Legislature, but it is expressly stated that it shall go into effect when a majority have voted for the law and the county court has made an order. That from and after that date it shall go into effect. This law violates that provision of the Constitution which says no measure shall be submitted to the people by the General Assembly except a proposed constitutional amendment or amendments as provided for in this Constitution.
The amendment also defines the word “measure” to mean any bill, law, resolution, ordinance, charter, constitutional amendment or "legislative proposal or enactment of any character. Certainly that covers the bill submitted to the people of Monroe County. The Constitution prohibits the Legislature from submitting any measure. Here was a measure submitted to the people, a bill to become a law only when a majority of the people had voted for it and there had been an order of the eonnty court, as provided for in the act. The provision of the Constitution is plain and unambiguous, and that provision prohibits submitting measures like this to the people to become effective as a law only when adopted by the people. The law therefore never became effec- ^ tive, the election held at a time different from the date fixed by the Legislature was void, and the law itself a nullity. And the law of 1927 declaring elections under no-fence laws valid could not affect this election, if it was void.
“A curative statute is only intended to cure defects in the execution of a mortgage, and cannot, in the very nature of things, render valid an act which was absolutely void in the beginning. # * * The curative act in question did not purport to cure anything except defective instruments, and does not purport to render valid and effectual an act which had never been done.” Hall v. Mitchell, 175 Ark. 641, 1 S. W. (2d.) 59.
Act 84 of 1927 was a curative act, and undertook ¿ to cure defects or cure acts that were irregular, but there is no irregularity about the proceedings with reference to the Monroe County stock law. The election was void, and the act therefore never became effective.
. The 1927 act could not be effective for another reason. The amendment adopted at the general election October 5, 1926,. provides:
“The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.”
The Legislature, under this amendment, could not pass a special act. And if a special act had been passed before the adoption of this amendment, but had not gone into effect, the act of 1927, undertaking to cure a defect, would, in effect, be passing a local act. If the election, held at'the time it was, had been valid, then the act of 1927 would have been wholly unnecessary and would have had no effect at all. If the election was' invalid-, then the law was void, and if the 1927 law was intended to render a local law valid, then it was in effect the passage of a local law, and this it could not do under the amendment to the Constitution above referred to. If the Legislature could, not pass a local act it could not make effective a local act that was void. It could not do indirectly what the Constitution prohibits it from doing directly.
This case is reversed, and remanded with directions to enter a judgment for the plaintiff. | [
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McHaney, J.
Appellee is a benevolent corporation, earing for tlie sick and needy in the city, and brought this action against appellants, city of Little Rock and the board of commissioners of the Little Rock Municipal Water Works. The complaint alleged that the city owns the waterworks system and that the commissioners have full and complete authority to manage and operate the waterworks system and, under Act 288 of 1941, have authority to obligato the city by making subscriptions to appellee and to obligate the city for payment' of same from the waterworks funds; that the commissioners executed a pledge for $1,350, which is past due, unpaid and payment refused; that all principal and interest maturities on outstanding obligations of the waterworks have been paid and all sinking fund requirements met; and that payment, of the pledge could be made without impairing other outstanding- obligations.
Appellants answered, first, that they are prohibited by § 5 of art. XII of the constitution of this state from appropriating public money to appellee; second, that on February 1, 1936, the city issued its trust indenture to a named trustee whereby it pledged all its income and revenue from its waterworks system to secure the payment of $6,590,000 of water revenue bonds, the greater part of which are still outstanding in the hands of investors; that by the terms of said trust indenture it is provided that, after setting aside sums for repairs, replacements and depreciation to cover costs of mainte nanee and operation, all income and other funds of the plant shall be placed in the Water Revenue Bonds Fund and used solely for the purpose of paying principal and interest upon the bonds, issued and secured by the trust indenture; that no funds derived from the waterworks are to be, used for any other purpose than operation, maintenance and payment of bonds; that all bonds and interest maturities have been paid, but bonds maturing from 1943- to 1976, inclusive, are outstanding and unpaid, and appellants cannot make gifts to charity until said bonds are retired; that the laws in force at the time of the execution of the trust indenture became a part of the indenture and no subsequent act can impair same; and that Act 288 of 1941 is unconstitutional in that it contravenes § 5, art. XII, of the constitution of this state and § 10, art. 1, constitution of the United States.
The case was submitted to the trial court upon stipulation as follows: “It is hereby agreed and stipulated that the trust indenture securing the bonds of the Little Rock Municipal Water Works provides in § 1 of art. Ill that certain rates therein set out shall be charged for water furnished by the waterworks system; that § 2 of said art. Ill provides, in part, as follows: . . provided, however, that if at any time after February 1, 1921, the moneys in the Water Revenue Bonds Fund shall equal or exceed the total amount required for making all principal and interest payments during the succeeding twelve months on account of the bonds issued under and secured by this indenture and then outstanding, such rates may be reduced by such percentage thereof that, on the basis of the average annual earnings of the waterworks system for the three fiscal years immediately preceding, such reduced rates will produce funds sufficient to provide for the payment of the bonds, both principal and interest, as the same fall due, and also sufficient to provide funds for depreciation and for operation and maintenance equal to the average annual expenditures for each of such purposes, etc.
“ . . and provided further that the minimum rates which may be charged at any time while any of the bonds issued under and secured by this indenture' shall be outstanding, shall be and are hereby fixed at sixty-six and two-tliirds per centum of the rates set forth in § 1 of this article.’
“It is further stipulated that in accordance with the above provisions of said trust indenture the water rates in the city of Little Rock were reduced in an average amount of approximately $75,000 per year, or an average rate reduction of about twelve per cent; that the gross reduction allowed under the trust indenture is 33 1/3% of the rates outstanding and in effect at the time of the execution of the trust indenture; that on March 31, 1942, the said Little Rock Municipal Water Works had on hand $315,055.06 in the bond reserve fund, meeting the full requirements of § 6, art. Ill, of said trust indenture. Section 9, art. Ill of said trust indenture requires that a fund-equivalent to a full year’s operation and maintenance cost must be on hand in this fund before any money from this fund may be transferred 'to the depreciation fund or the Water Revenue Bond Fund; that the full operating expenses for the year 1941 were $202,419.63; whereas the deposit in said maintenance and operation fund on March 31, 1942, was only $127,712.12 and that said fund is not, therefore, built up to the full requirements to entitle the transfer of any of said funds from it.
“There .are no funds provided in said trust indenture for capital expenditures; that a great expansion of the plant has been necessary to meet the war needs; that said expense has been met by payments from the maintenance and operation fund which is the only fund available for said work; that since the taking over of said plant capital investments in expansion of the plant have been made as follows:
“1936............................................................$ 12,706.51
1937 ............................................................ 25,902.80
1938 ............................................................ 22,716.07
1939 .....................:...................................... 74,570.42
1940 ............................................................ 112,933.52
1941 ...............,........................................... 90,744.21.
‘ ‘ During the current year the Little Rock Municipal Water Works has been engaged in the installation of an additional clear well at an estimated cost of approxi mately $100,000. Of this cost the United States will advance fifty per cent., bnt this snm added to the various and sundry other items necessary will cause a large capital expenditure for the year 1941, indicating that after all maintenance and operation, debt service charges, maturities and property expansion requirements are met the net income for the current year will be approximately $56,000; that this sum added to the present maintenance and operation fund will still leave said fund short of the amount necessary to permit transfers from said fund.”
Upon this state of facts the court rendered judgment against appellants for $1,350, from which is this appeal.
Act 288 of 1941, § 1, amends § 9583 of Pope’s Digest and as amended'it provides: “It shall be unlawful for any city official or employee of any municipal corporation in this state to furnish or give to any person, concerns or corporations any property belonging to the said municipal corporation or service from any public utility owned or operated by said municipal corporation unless payment is made therefor to said municipal corporation at the usual .and regular rates and in the usual manner, except as provided in § 9582; provided, however, that the Waterworks Commission of cities of the first class shall be authorized to make donations of money from the revenue of municipal waterworks systems to local Community Chests, or other city-wide non-sectarian, incorporated, charitable organizations. ’ ’ The only change made by the amendment was to add the proviso at the end of said section. Section 2. of said act amends § 10023 of the Digest and § 3 amends § 9584 of the Digest to the same effect. We think the act, although its purpose was laudable, was ineffective to authorize the city or the commissioners to make a binding subscription to appellee payable out of the waterworks revenues. These funds were pledged for the payment of the revenue bonds in the trust indenture, and the payment of such a pledge therefrom would be a diversion of the security and an impairment of the obligation. Certainly it could not be done without the amendatory .act and we think the legislature was without power to authorize the impairment of the contract. It is no doubt true that there is and will be ample revenue from the waterworks system, over and above the small pledge,here involved, to pay all its obligations as they mature, but this fact cannot alter the situation. If appellants can make this donation, they could make a much larger one, and the statute is broad enough to authorize such pledges to many organizations now seeking contributions, such as the USO, the Navy Relief, and others. Section 9583, without the amendment, was the law in effect at the time of the execution of the trust indenture, and it is well settled that the law in effect at the date of the contract becomes a part of it, and that the law cannot thereafter be changed so as to alter the contractual rights of the parties thereto to their detriment. Jacoway v. Denton, 25 Ark. 625; Brodie v. McCabe, 33 Ark. 690; Worthen v. Kavanaugh, 295 U. S. 56, 55 Sup. Ct. 555, 79 L. Ed. 1298, 97 A. L. R. 905.
But, say appellees, appellants cannot raise the question; that only a bondholder or the trustee could do so. We cannot agree. We think both the city and the Waterworks Commission are under the duty to see that the terms of the trust indenture are not violated, § 7 of which provides: "The city covenants and agrees that so long as any of the bonds secured hereby are outstanding, none of the gross revenues of the waterworks system shall be used for any purpose other than as provided in this indenture, and that no contract or contracts will be entered into or any action taken by which the rights of the trustee or of the bondholders might be impaired or diminished.”
Appellee cites and relies on the case of Bourland v. Pollock, 157 Ark. 538, 249 S. W. 360, but we think it has no application to the facts in this case, but does have a direct bearing on the companion case of Neel v. City of Little Rock, post, p. 568, 163 S. W. 2d 525.
We think appellants were without power to make the donation, and the judgment should be reversed and the cause dismissed. It is so ordered. | [
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Smith, J.
On December 22, 1926, appellant purchased a full-fare round-tri'p ticket for herself and a half-fare round-trip . ticket for he¡r granddaughter at Mena, Arkansas, from that station to Kansas City, Missouri, ' and return. The usual one-way full fare was $13.66, and the round-trip full fare, was $27.32. The tickets purchased by appellant were excursion 'tickets, and the price paid for her own ticket was $20.49, a reduction from the full regular fare of $6.83. Stamped on both tickets was this condition:
“In consideration of the reduced rate at which this ticket is sold, it will not be accepted for passage if presented after 1-6-1927. ’ ’
At the time these tickets were .sold there had been filed with and approved by the Interstate Commerce Commission tariff sheets regulating Christmas excursion tickets, and a copy of these tariff sheets was on file in the office of the ticket agent who . sold the tickets. These tariff sheets contained the following limitation upon the sale of these excursion tickets: “Dates of sale— December 21 to 25, inclusive, 1926. Final return limit — • January 6,1927. Transit limit — Going—’Tickets must be used from selling station on date of sale, as stamped or perforated on ticket. Return trip — Return trip must be completed to original starting point before midnight of date of final limit.”
Appellant went to Kansas City, where she visited her nephew and niece, and remained until January 6, 1927, at which time she presented her ticket and that of her gnanddaughter to the gateman at the Union Station for admission as passengers to a train of appellee railway company which was - due to leave Kansas City at 11:35 p.m. Admission to the train was denied appellant upon the ground that the tickets would expire in twenty-' five minutes after the departure of the train, and the journey which appellant proposed to make could not be completed within that time; indeed, the train was not due to arrive at Mena, appellant’s destination, until the following afternoon. There was no station at which the train would have stopped in twenty-five minutes, and appellant does not contend that she desired to use the tickets for that period of time. Her contention is that she presented the ticket before its expiration, and that she was therefore entitled to be transported as a passenger on the ticket.
When appellant was denied the right to enter the train and become a passenger, she borrowed from her nephew, who had escorted her to the station, money to pay her fare and that of her granddaughter to her destination. After paying the full regular fare of herself and her granddaughter, she surrendered the return portions of her excursion tickets to the train auditor, and later received from the railway company $10.60 as rebate.
Appellant sued for damages for a breach of the contract of carriage, and offered testimony to the effect that, as a result of the humiliation and chagrin endured by her when her ticket was refused, she suffered a nervous breakdown. Suit was not brought on account of the grandchild’. At the conclusion of the testimony the court directed the jury to return a verdict for the defendant railway company, which was done, and from the judgment pronounced thereon is this appeal.
The question presented by this appeal is whether the stipulation above quoted appearing on the ticket or the limitation as to the period of its validity appearing in the tariff sheets shall govern. As the ticket covered an interstate trip, the tariff approved- by the Interstate Commerce Commission must govern. L. & N. Ry. Co. v. Motley, 219 U. S. 467, 31 S. Ct. 265, 55 L. ed. 297, 34 L. R. A. (N. S.) 671.
The tariff sheet required the completion of the trip to be accomplished not later than January 6, and, as has been shown, it would hardly have been begun by that time, and appellant asked nothing less than that she be carried to her destination, which- she could not have reached until the following afternoon.
In 10 C. J., chapter Carriers, $ 1080, page 662, it is said:
“Under the Interstate Commerce Act a carrier must publish passenger rates, and cannot charge a less or a different rate than that specified in its published rates, unless such rate is found to be unreasonable by the Interstate Commerce Commission, and neither the misquotation of rates nor ignorance is an excuse for charging or paying less or more than the filed rates, since passengers, as well as the agents of the carrier, are presumed to know such rates. ’ ’
In the case of Sanders v. Atlantic Coast Line R. Co., 85 S. E. 167, 101 S. C. 11, the Supreme Court of South Carolina said:
“It is well settled, too, that, under the act of Congress and the decisions of the Supreme Court of the United States construing it, no liability of a carrier can be predicated upon the misrepresentations or mistakes of its agents as to the rates applicable, or privileges or facilities to be afforded under the tariffs filed with the Commission. Passengers and shippers are conclusively presumed to know them, as well as the agents of the carriers. This question has been so recently and frequently considered and decided both by the Supreme Court of the United States and by this court that it is not deemed necessary to state the reasons therefor, or even to cite the decisions. ”
In the case of St. Louis, I. M. & S. Ry. Co. v. Wolf, 100 Ark. 22, 139 S. W. 536, Ann. Cas. 19130, 1384, it was held (to quote the syllabus): “Interstate commerce— Effect of mistake as to rate. — '"Where a railway agent, by mistake, inserted in a bill of lading for an interstate shipment a rate less than the published rate, the railroad company is not bound thereby; and it is immaterial in such case that the shipper and the agent were both ignorant of the published rate. ’ ’
In that case this court quoted from Barnes on Interstate Transportation, § 446, -as follows: “Under the present law, regardless of the rate quoted, the published tariff rate must be paid by the shipper and actually collected by the carrier.” The reason given by the author for this apparently harsh rule is that the integrity of the published tariff must be preserved to prevent discrimination, and that, if it were otherwise, the published tariffs, through collusion or carelessness, would be constantly violated.
See also Pennington v. Illinois C. Ry. Co., 252 Ill. 584, 97 N. E. 289, 37 L. R. A. (N. S.) 983; Samples v. Georgia & F. Ry. Co., 143 Ga. 805, 85 S. E. 1002; Sherman v. Chicago, etc., Ry. Co., 40 Iowa 45.
It follows therefore that the limitation in the tariff sheet must govern, and not that stamped upon the ticket, and, as appellant did not use the ticket within the time limited by the tariff sheet, the railway company had the right to refuse to accept it and to collect the fare, as was done, and the .judgment of -the court directing a verdict in favor of the railway company must therefore be affirmed, and it is so ordered. | [
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Smith, J.
Appellee brought this suit to establish the alleged lost will of Dr. S. H. Cowden and for an accounting of the estate of Nancy E. Cowden, the widow of Dr. Cowden. The complaint alleged that Dr. Cowden died testate, and that by his last will he devised all his property, both real and personal, to his widow for life, with remainder to Charles A. Wood. Dr. Cowden died September 19,1911, and was survived by his widow, who died December 25, 1925. Dr. Cowden left no lineal descendants, and, so far as is known, no collateral heirs.
The answer filed by the heirs of Mrs. Cowden denied that Dr. Cowden died testate, and further alleged the fact to be that, shortly before his death, he executed a deed to all his property to his wife, in which he conveyed to her in fee-simple all his real estate, and his personal property also. In the reply to this aoswer it was alleged that the purported deed from Dr. Cowden to his wife was a forgery.
The chancellor found the fact to be that Dr. Cowden executed a will in due form, whereby he devised all his property to Ms wife for her life, with the remainder to Charles A. Wood, except that he devised to Ed Francis, subject to his wife’s life estate, a certain triangular lot constituting a part of the testator’s homestead. The estate of the testator consisted of a valuable lot in the city of Morrilton, containing about two and three-fourths acres, and a time certificate of deposit in the Bank of Morrilton for something over $2,700.
No children were born to the union of Dr. and Mrs. Cowden, but they took two small boys into their family and reared them. One of these was plaintiff, Charles A. Wood, who was Mrs. Cowden’s nephew; the other was Ed Francis. These boys lived with Dr. and Mrs. Cowden as members of the family until they were grown and had married, when they established homes for themselves. The testimony shows that Dr. and Mrs. Cowden regarded these young men with the tenderest affection.
The testimony shows very clearly that Dr. Cowden executed a will, about two months before his death, but the will could never be found after his death. It is the theory of the plaintiff that Robert L. Williams, a brother of Mrs. Cowden, not only destroyed the will by burning it, but that he also forged the deed, and the finding of the chancellor accords with this theory.
Without reviewing the testimony, which we have carefully considered, we announce our conclusion to be that the testimony supports the finding that the will was destroyed and the deed was forged, but, notwithstanding the fact that we concur with the chancellor in these findings, we do not affirm the decree establishing the will as a lost instrument, beloause we do not think its provisions were established with the certainty which the law requires to restore a lost will, and also because we think plaintiff was barred by laches in instituting this suit.
The attorney who prepared the will testified that the will gave to Mrs. Cowden all the property for life, with remainder to Charles A. Wood, except a lot forming a part of Dr. Cowdenls estate was devised to Ed Francis after the termination of Mrs. Cowden’s life estate. This witness testified that the testator gave certain directions about the wife of Charles A. Wood, but he did not remember whether the will as executed gave Mrs. Wood anything or not.
The attesting witnesses to the will were Dr. Charles D. Clark, who died in the lifetime of Mrs. Cowden, and Dr. Martin A. Metzger. The latter, when called as a witness, testified that the entire remainder was given to Charles A. Wood. Neither the attorney who drew the will nor Dr. Metzger remembered whether an executor had been named in the will or not.
Plaintiff Wood, testifying in his own behalf, stated that he was present when the will was executed, and that he heard it read, and he remembered its provisions to be as testified to by the attorney.
Dr. and Mrs. Cowden were frugal, and each kept a savings account, the accounts being kept in different banks. After the alleged forged deed had been placed of record, Mrs. Cowden’s brother exhibited it to the cashier of the bank where Dr. Cowden’s account was kept, and the account was transferred to, Mrs. Cowden’s name. Thereafter renewal certificates were issued annually by that bank in the name of Mrs. Cowden, who never used any of that account except the interest, and not all the interest, as the deposit was slightly more at the time of Mrs. Cowden’s death than it was when her husband died.
It is strongly urged by counsel for plaintiff that the fact that Mrs. Cowden used only the interest on this deposit, when she was authorized by the will to consume the principal, if her necessities had required her to do so, shows that she recognized the fact that her husband had left a will. It appears also that, after the death of Dr. Cowden, his widow executed a deed to Ed Francis for the portion of the real estate which plaintiff testified was the part given Francis by the will, subject to the widow’s life estate, and appellee insists that this was done because Mis. Cowden knew that action accorded with the wishes of her husband as expressed in his will.
The statute provides for the restoration of lost or destroyed wills, and vests that jurisdiction in chancery courts. Section 10542, C. & M. Digest.
Section 10545, C. & M. Digest, reads as follows:
“No will of any testator shall be allowed to be proved as.a lost or destroyed will unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator; nor unless its provisions be clearly and distinctly proved by. at least two witnesses, a correct copy or draft being deemed equivalent to one witness.”
Section 10529, C. & M. Digest, which is relevant to the facts of this case, reads as follows:
“If any person shall be a subscribing witness to the • execution of any will wherein any beneficial devise, legacy, interest or appointment of real or personal estate shall be made to such witness, and such will cannot be proved without the testimony of such witness, such devise, legacy, interest or appointment shall be void so far only as concerns such witness, or any person claiming under him, and such person shall be a competent witness, and may be compelled to testify respecting the execution of such will, in like manner as if no devise or bequest had been made to him.”
It is true that appellee was not one of the subscribing witnesses to the will, but, in the effort to prove its loss and to restore it, he becomes such in effect, for the purpose and effect of his testimony was to prove its execution, and, according to his testimony, the will which he seeks to restore gives him all the testator’s property, the life tenant being dead, except the lot conveyed by her to Francis. As appellee, in testifying to the execution of the will, becomes in effect a subscribing witness to its execution, and as the effect of his testimony is to give him the entire subject-matter of the present litigation, the will cannot be established by a consideration.of his testimony.
As no copy or draft of the will was produced, the testimony of two witnesses as to its execution and con tents is essential. It is insisted that the testimony of the attorney and that of Dr. Metzger supplies this requirement.
The testimony - of the last-named two witnesses proves the execution of the will, but there is a substantial conflict in their testimony as to its contents. According to the recollection of the attorney, there was possibly a devise to appellee’s wife. The witness stated: “As I now recall, Dr. S. H. Cowden mentioned Mrs. Charles Wood, wife of Charles A. Wood, but as to whether or not any of the property was willed to her in said will, I cannot now state positively.” This witness was very definite in his statement that the remainder interest in a portion of the real estate had been given Ed Francis, the description oif which the witness did not recall. According to Dr. Metzger, the surviving subscribing witness, the entire estate was given to Wood, subject to the life estate of the testator’s widow.
In the case of Rose v. Hunnicutt, 166 Ark. 134, 265 S. W. 651, it was held (to quote' a syllabus) that “it will be presumed that a testator destroyed a will which cannot be found after her death, with intention to revoke it, if she retained custody of it or had access to it, but this presumption may be overcome by proof.”
In the case of Rawlings v. Rerry, 128 Ark. 273, 194 S. W. 249, the court discussed the quantum of proof necessary to overcome the presumption that a lost will had been revoked, and it was there said:
“We think no error was committed in defining the quantum of proóf necessary to establish and prove a lost will. In the case of Nunn v. Lynch, 73 Ark. 20, 83 S. W. 316, Chief Justice Hill, speaking for the court, quoted with approval from the case of Rhodes v. Vinson, 9 Grill (Md.) 169, 52 Am. Dec. 685, the following statement of the law: ‘The policy of the law has thrown around last wills and testaments as many, if not more, shields to protect. them from frauds, impositions and undue influence than any mode of conveyance known to the law. Can there be a doubt that, in cases like the present, where the object is to establish the contents of a paper which has been destroyed as and for a last will, that policy does require the contents of such paper to be established by the clearest, the most conclusive, and satisfactory proof? Wé think not.’ See also Underhill on the Daw of Wills, vol. 1, § 275, and 14 Ency. of Ev., p. 465.”
Appellee cites and relies upon the case of Bradway v. Thompson, 139 Ark. 542, 214 S. W. 27, as sustaining the decree of the court below in establishing the alleged lost will. But the facts in that case were stronger in support of the will than they are in the instant case. There a carbon copy of the will was' produced, which the statute makes equivalent to one witness. There was no question about the provisions of the will. More than two witnesses proved its execution, and it was clearly shown to have been in the possession of the testator when he left his home for the hospital, from which he never returned, and it was also shown that a person had access to the will who would have profited by its destruction.
The instant case is more nearly like that of Dudgeon v. Dudgeon, 119 Ark. 128, 177 S. W. 402, in which case, as in this, the execution of the will was clearly shown, but its provisions were not. It was there said:
“While it is admitted there was a will, appellant failed to prove its provisions. 'Section 8062 of Kirby’s Digest gives chancery courts jurisdiction to establish lost or destroyed wills, but it is not sufficient simply to establish the fact that there was a will. It is just as essential that the proof show its provisions. 'Section 8065 of Kirby’s Digest provides that no will shall be allowed to be proved as a lost or destroyed will unless, among other requirements, its provisions be clearly and distinctly proved by at least one witness, a correct copy or driaft being equivalent to one witness. ’ ’
We are also of the opinion that plaintiff is barred by laches from prosecuting this suit.
In the case of Dudgeon v. Dudgeon, supra, it was said:
“The right to probate this will would not be defeated merely by the delay in the institution of this suit, although, with full knowledge of all the facts, appellant delayed over ten years in moving for that purpose. Yet this is a circumstance to be considered in determining what action the court should take.”
Here, however, we have something more than mere delay. Dr. Cowden died in 1911, and his wife in 1925, and no effort was made to probate this will until after her death. It cannot be assumed that she was not interested in the devolution of the estate, whatever it was, which she acquired upon the death of her husband.- Dr. Clark, one of the attesting witnesses, was also dead when the suit was filed. It is true that the attorney who prepared the will and one of the attesting witnesses still survived, but such time has elapsed since the death of the testator that one or the other of these last-named persons has become confused about the provisions of the will. During all this time there was of record a deed which apparently conveyed to Mrs. Cowden the entire estate. Appellee insists that the testimony shows that Mrs. Cowden did not claim under this deed, and that he was ignorant of its existence until after Mrs. Cowden’s death. Had this suit been brought seasonably, it might otherwise 'appear. .
Appellee insists that he could not have disturbed Mrs. Cowden’s possession and use of the land or the money, for the reason that the will gave her the right thereto during her life; and this is true if there was such a will as he seeks to prove, but, even so, he could have probated the will during Mrs. Cowden’s lifetime. He was certainly not required to wait until after her death to do so, but this he did, and his delay has thus caused the loss of very material testimony.
In the case of Reese v. Bruce, 136 Ark. 378, 206 S. W. 658, certain heirs questioned the apparent title of which their ancestor was seized at the time of his death, and, in denying them relief upon the ground of laches, the conrt said:
“It appears on the face of the hill that W. W. Tate died on the 29th day of May, 1899. If appellants had instituted this suit in his lifetime, he could have explained the character of his title and possession thereunder. Appellants have waited until conditions have changed and until appellees have been deprived of the evidence of their father. This court said, in the case of Tatum v. Arkansas Lumber Co., 103 Ark. 251, 146 S. W. 135, that the true doctrine concerning laches was announced by Mr. Pomeroy, as follows: ‘Laches, in legal significance, is not mere delay, but delay that works disadvantage to another. So long as the parties are in the same condition, it matters little whether he presses a right promptly or slowly within limits allowed by law; but when, knowing his rights, he takes no step to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates' as estoppel against the assertion of the right. This disadvantage may come from the loss of evidence, change of title, intervention of equities, and other causes, but, when a court sees negligence on one side and injury therefrom on the other, it is a ground for denial of relief.’ 5 Pomeroy, Eq. Jur. (3 ed.), § '21.”
For the reasons therefore that appellee has failed to prove the provisions of the will with the certainty required by law to restore it as a lost instrument, and because of his laches in instituting this suit, the decree of the court below must be reversed, and, as appellee has no interest in the Cowden estate in the absence of a will, the suit will be dismissed. It is so ordered. | [
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Humphreys, J.
On June 13,1941, appellant, a corporation, brought suit in, the third division of the circuit court of Pulaski county, Arkansas, against appellees, doing business as partners under the firm name of United Grocers Association, Inc., to recover a balance due it on open account of $476.96, for publishing advertising' matter pertaining to the business.
.Appellees filed an answer admitting* the correctness of the account, and interposing* the defense that they were not doing* business as partners, but were doing business as a corporation duly incorporated as the United Grocers Association, Inc., under Act 255 of the Acts of 1931 of the General Assembly of Arkansas, which act constituted them a body politic and exempted them from personal liability for the debts of said corporation.
Appellants filed a reply to the answer of appellees denying* that they complied with Act 255 of the Acts of 1931 so as to exempt them from personal liability for the debts of the purported corporation.
The facts disclosed by the record are undisputed, and reveal that on the 13th day of March, 1939, appellees, D. A. Brady, Paul E. Talley, and Elizabeth Brady filed articles of incorporation with the secretary of state of the State of Arkansas, C. G. Hall, at which time the said secretary of state issued them a certificate of incorporation under the name of United Grocers Association, Inc. A copy of the articles of incorporation were never filed in the office of the county clerk of Pulaski county or any other county in the state of Arkansas. The names of the three incorporators and the names of sixteen other stockholders and the amount of stock subscribed for and owned by each were incorporated in the articles of incorporation. It does not appear whether the stockholders ever met and selected a board of directors, but the record reflects that D. A. Brady acted as president and O. P. Stuart as manager of the association. They opened a warehouse and office at 205 North Arch street in the city of Little Rock in Pulaski county, Arkansas, in the name of United Grocers Association, Inc., and conducted the grocery business. O.' P. Stuart acted as manager until March 31, 1940, at which time he was discharged and his responsibilities were assumed by Elizabeth Brady who managed the business until the United Grocers Association, Inc., ceased to do business. The advertisements were contracted for and run in appellant’s paper, were paid for by checks drawn on the bank account of United Grocers Association, Inc., by C. P. Stuart while manager and Elizabeth Brady while manager and were countersigned by D. A. Brady, president, but at the time United Grocers Association, Inc., ceased to do business there was a balance due appellant of $476.96. Appellant extended credit for advertising to the United Grocers Association, Inc., under written contract proposed by United Grocers Association, Inc., “Advertiser, by D. A. Brady.” Appellant being under the impression that United Grocers Association, Inc., was a duly incorporated corporation contracted with it as such through its president and manager anil did not deal with or contact individually the organizers or stockholders and did not know who they were.
Appellant sued the organizers and stockholders individually as partners doing business under the firm name of United Grocers Association, Inc., after it found out that the United Grocers Association, Inc., had not filed the articles of incorporation with the county clerk in Pulaski county or any other county in the state. After the testimony was concluded appellees requested the court to instruct a verdict for it. Appellant requested six separate instructions based upon facts revealed by the evidence, which facts were undisputed.
The court thereupon instructed the jury to return a verdict for appellees and refused to submit the case to the jury upon the six instructions requested by appellant, all over the objections and exceptions of appellant.
Pursuant to the verdict, the court rendered a judgment in favor of appellees and dismissed appellant’s complaint and adjudged the costs against appellant, from which appellant has duly appealed to this court.
The questions arising on this appeal are: (1) “Was the United Grocers Association, Inc., incorporated under the laws of the State of Arkansas? And, (2) if not, are the stockholders liable individually for the debts of the business?”
The facts being undisputed, of course, the court correctly took the determination of the facts from the jury. There were no issues of fact for the jury to determine'. The sole question became a question of law as to whether, under the undisputed facts, appellees were liable for the debts incurred by the United Grocers Association, Inc., during the time it continued in business. Appellant contends that under § 3 of Act 255 of the Acts of 1931, now § 2131, Pope’s Digest, it was and is necessary for the organizers and the stockholders of a corporation to file their articles of incorporation with the Secretary of State and thereafter with the county clerk in order to constitute its corporation an entity or a de jure corporation and thereby relieve the incorporators and stockholders from personal liability for the debts of the corporation.
Appellees, on the other hand, contend that under said act it is only necessary to file their articles of incorporation with the Secretary of State to constitute themselves a corporate entity and thereby exempt themselves from personal liability for the debts of the concern.
Section 3' of said act is in part as follows: “Upon the filing with the Secretary of State of articles of incorporation, the corporate existence shall begin. Provided, however, a set of the articles of incorporation (bearing the filing marks of the Secretary of State) shall be filed for record with the county clerk of the county in which the corporation’s principal office or place of business in this state is located.”
We think the proper interpretation of said section is that in order to become a corporation de jure the articles of incorporation shall be filed with both the Secretary of State and the county clerk of the county in which the corporation’s principal office or place of business is located. Said section is not materially different from § 9 of Act XCII of the Acts of 1869, relative to the creation and regulation of corporations, which latter act was repealed by Act 255 of the Acts of 1931. That act, however, was in full force and effect until repealed by Act 255 of the Acts of 1931, and during the time it was in effect this court in a long line of decisions, beginning* with the case of Garnett v. Richardson, 35 Ark. 144, held that in order to exempt the organizers of a corporation from personal liability for the debts of the concern, the articles of incorporation must be filed in both the office of the Secretary of State and the office of the county clerk.
We think the construction placed upon § 9 of Act XCII of the Acts of 1869 is applicable to § 3 of Act 255 of the Aots of the General Assembly of 1931 as both sections require the filing of the articles of incorporation in both the office of the Secretary of State and the county clerk of the county in which the corporation’s principal office or place of business is located in order to constitute the corporation a de jure corporation. In other words, we are- of the opinion that the failure to file the articles of incorporation in either the office of the Secretary of State or in the office of the county clerk has the effect of constituting the proposed corporation a de facto corporation. In order to exempt any association of persons from personal liability for the debts of a proposed corporation they must comply fully with the act under which the corporation is created. A partial compliance with the act is not sufficient. Unless they comply fully with the acf, they are, as to business transacted, a partnership.
We think the rule announced in Garnett v. Richardson, supra, and the subsequent cases reannouncing the rule is controlling in the instant case.
Under this view of the law the trial court should have instructed a verdict for appellant instead of for appellees.
The judgment is, therefore, reversed and judgment is entered here for $476.96 in favor of appellant, with interest thereon at the rate of 6 per cent, per annum from the date of the filing of its suit together with all of its costs expended in both courts. | [
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John A. Fogleman, Justice.
Appellant asserts error on the part of the trial court in directing a verdict against her in her suit against appellee for damages for personal injuries allegedly sustained by reason of her fall inside the front entrance of appellee’s store. Evidence on behalf of appellant showed: Rain started falling a little before 2 p.m. on the day of her fall. While the rain ivas continuous, it was not raining very hard when she left a PTA meeting about 3:30 p.m. or when she entered appellee’s store about 4 p.m. She walked to her car which was parked directly in front of the building where the PTA meeting was held and from her car parked directly in front of appellee’s store into the store. She was not wearing a raincoat. The rain had been harder earlier. She stated that she slipped and fell at a point about four to six feet inside the front double-swinging doors. She realized that her feet had hit something wet and slick as she was falling. As she arose, she could feel that her clothing was wet and her left hand wet and dirty. After arising, she observed the floor looked wet and was not perfectly clean, as if people had been “tracking in all afternoon.” She had some substance on her hand and on the seat of her dress. She described the spot where she fell as pretty dirty and wet. It looked as if water and dirt had been tracked in from the outside.
No presumption of negligence arises from the mere fact that a customer sustains a fall while in a store. Miller v. F. W. Woolworth Co., 238 Ark. 709, 384 S. W. 2d 947. A storekeeper is not an insurer of his patrons against any and all hazards which may be encountered on his premises. Kroger Grocery & Baking Co. v. Dempsey, 201 Ark. 71, 143 S. W. 2d 564. He is liable to a patron rvho is injured as a result of slipping on some foreign substance or object on the floor where it is shown by the evidence, or is reasonably inferable therefrom, that the foreign matter was negligently placed or left on the floor by the storekeeper or one for whose acts he is responsible, or that the matter had remained on the floor a sufficient length of time that the storekeeper knew, or, in the exercise of ordinary care, should have known of its presence. Kroger Grocery & Baking Co. v. Dempsey, supra; Deason v. Boston Store Dry Goods Company, 226 Ark. 667, 292 S. W. 2d 261, 61 ALR 2d 170.
Obviously, it is impossible for a store owner to prevent some water and mud from being brought through an entranceway on the shoes and clothing of persons entering on a rainy day. Here, there was no evidence of the length of time the floor had been wet or dirty nor was any circumstance shown that indicated that appel-lee or his employees either knew or should have known that this condition existed. The strongest inference that can be drawn from appellee’s testimony is that during the period of the rainfall, customers entering the store had tracked water and dirt into the store and that some of this had accumulated at the spot at which she fell. The burden was on appellant to show that the interval between the time this accumulation took place and the time of her fall was substantial. Owen v. Kroger Grocery Co., 238 Ark. 413, 382 S. W. 2d 192. There is no evidence from which a jury might determine, without speculation or conjecture, that the accumulation of water and dirt tracked in by, or dropped from the clothing and umbrellas of, persons entering the store became sufficiently great or dangerous that it should have been observed by appellee or his employees in time to give opportunity for its removal prior to the entry and fall of appellant.
Appellant does not point out clearly the exact facts upon which she relies to establish negligence on the part of appellee, or from which an inference of negligence might be drawn. She urges that we reverse the trial court upon the authority of Menser v. Goodyear Tire & Rubber Co., 220 Ark. 315, 247 S. W. 2d 1019. The case at bar is clearly distinguishable. In Menser there was testimony that the substance on the floor appeared to be floor wax that had not been spread smoothly. According to the testimony, the substance was in thick and thin strips over a spot two to three feet in diameter. This court held that a jury question was presented because the customer fell in the middle of the day, and, if the spot was the result of waxing the floors, sufficient time had elapsed for properly finishing the job. Furthermore, it was said that the character of the place of business and the extent and nature of the spot were such that it would not be reasonable to assume that some customer had recently inadvertently dropped the wax-like substance on the floor. Appellant contends here that the moisture and dirt were tracked in by customers. As previously pointed out, there is no indication of the time any accumulation should have come to the attention of appellee.
Tn a case where a passenger claimed injury from slipping upon pieces of ice and snow in the vestibule of a street car from which she was debarking, we held that it must have been shown that the carrier permitted the accumulation of ice and snow or that it had been in the vestibule of the car such a length of time as to afford an opportunity for removal before negligence could be inferred. Turner v. Hot Springs Street Ry. Co., 189 Ark. 894, 75 S. W. 2d 675.
The evidence was not sufficient to justify any inference of negligence on the part of appellee.
The judgment is affirmed. | [
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J. Feed Jones, Justice.
On October 3, 1966, the appellant, Jerry Dale Cullum, was charged in an information filed by the prosecuting attorney of Saline County with petit larceny and burglary, consisting of burglarizing the home of Albro Taylor in Saline County and stealing a Texaco Credit Card. On October 13, 1966, he entered a plea of guilty in the Saline County Circuit Court and was sentenced to the state penitentiary for a period of two years under a commitment reciting that he had specifically and intelligently waived counsel. On August 10, 1967, he filed a motion in the Saline County Circuit Court praying that the sentence be vacated and set aside and that he be permitted to enter a plea of not guilty to charges in the information, and that he be given a jury trial.
Appellant’s motion was treated as a petition for relief under Criminal Procedure Bule No. 1, and he testified in support of his petition at a hearing granted by the Saline County Circuit Court. The trial court held that appellant had intelligently waived the benefit of counsel when he entered Ms plea of guilty and appellant’s motion was overruled and Ms petition denied. On appeal to tMs court the appellant relies on the following points for reversal:
“The denial of the motion by the lower court violates defendant’s legal and constitutional rights, because :
A. He was not represented by counsel when a plea was entered.
B. The plea was entered because of promises of reward and protection made to him by representatives of the state and prosecution which promises were relied on by the appellant, and which were not kept making the plea legally involuntary, and the trial court accepts the truth of this in its finding of facts.
C. Appellant says he is not guilty of the charge, and the trial court accepts the truth of Ms statement in the findings of fact.”
The record reveals that appellant was on probation under a seven year suspended sentence from the/ Conway County Circuit Court on a felony charge of false pretense in connection with mortgaging his mother’s cattle. While free under this suspended sentence, appellant purchased gasoline in Conway County on a credit card issued to Albro Taylor, a resident of Saline County. He was arrested at his home in Van Burén County by the state police and was subsequently charged in Conway County with the unlawful use of the credit card, and in Saline County with obtaining it through burglary and larceny committed in that county.
Following appellant’s plea of guilty and sentence in the Saline County Circuit Court, he was returned to Conway County where the charge on the unlawful use of the credit card was dismissed, hut the suspension of the seven year sentence on the false pretense charge was revoked and he was committed to the penitentiary to serve the two year sentence from Saline County concurrently with the seven year sentence from Conway County.
The appellant’s testimony was the only evidence offered at the hearing on the Bule 1 petition, and as to the promises made to him in connection with his plea of guilty, he testified as follows:
“Q. What did they tell you about the case at Mor-rilton? I am talking about the credit card case?
A. They told me they would give me two years on it and they was supposed to give me two years at Benton and run them concurrent and I would have to go for eight months.
Q. The agreement, so to speak, between you and the Prosecuting Attorney and Mitchell at Morrilton was you was to enter a plea to the credit card case there?
A. Yes.
Q. And come down here and enter a plea in this case here?
A. Yes.
Q. And they said yon would get two years on each, count and they would run concurrent?
A. Yes.
Q. And you would get out in how long?
A. Eight months.
Q. Now then, what if anything did Mitchell and the Prosecuting Attorney at Morrilton say to you with reference to the seven year sentence which you was already under by reason of a probationary sentence in the false pretense case?
A. As I said, Bill Mitchell called the Prosecuting Attorney. He got my record and brought it up there and he said, ‘This won’t even be brought up. This we will just forget that.’
• • •
Q. Was that what induced you to come down here and enter the plea in Saline County?
A. Yes. He told me if I took it to court and everything, the seven years would be provoked [sic.] He couldn’t keep it from being provoked [sic].
Q. If you would get that out of the way by a plea, the seven years wouldn’t be bothered?
A. Yes, sir.
Q. You say Mitchell and the Prosecuting Attorney both told you that?
A. Yes, sir.
Q. Was it on that promise you came down and entered a plea of guilty in this Court?
A. Yes, sir. It was set up before I arrived at Benton.”
At the close of the hearing, the trial court denied the petition of appellant’s motion upon the following findings of fact:
“On the basis of his testimony, and I am going to consider everything he said is the truth, except for the fact he testified that I didn’t offer to appoint counsel for him, and I am not considering that point because I know I did. I am going to consider every word he said is the truth, and I am saying no constitutional right of his has been violated in this case.”
The trial court’s finding to the effect that appellant waived the benefit of counsel is sustained by the evidence. The commitment recites this fact, the appellant heard the court advise other defendants as to their right to counsel, but didn’t hear the court so advise him. The trial judge did remember that he did so advise the appellant, and his holding on this point is not error.
The prejudicial error occurred in this case before appellant was represented by counsel and before he was advised of his right to counsel. The error lies in what appellant says was told to him by the state police officer, Bill Mitchell, who arrested him, and by the prosecuting attorney of Conway County after a telephone conversation with the prosecuting attorney of Saline County, before he was ever arraigned on the charges either in Conway County or in Saline County. Appellant testified that “they told me they would give me two years at Benton and run them concurrent and I would have -to go just for eight months. * * * He told me if I took it to court and everything, the seven years would be provoked [sic]. He couldn’t keep it from being provoked [sic].”
It does not appear from the record that the trial judge of the Saline County Circuit Court or the trial judge of the Conway County Circuit Court knew anything at all of the arrangement between the arresting officer, the appellant, and the prosecuting attorneys until after the pleas of guilty were entered and sentence imposed in the Saline County Circuit Court. Appellant testified that he was not guilty of charges in Saline County and that he only entered his plea of guilty in that county in order to avoid the revocation of the seven year suspended sentence in Conway County, which the arresting officer could not prevent in the event he stood trial. In other words, appellant was trading the revocation of a seven year sentence in Conway County for a two year sentence from Saline County, and if appellant testified truthfully as to these promises and his reliance thereon, his plea of guilty was not voluntary. The testimony of the appellant on this point was not controverted or impeached by the state and the trial court accepted it as true. Apparently the trial court was under the impression that the promises made to appellant by the arresting officer all related only to the charges filed against him in Conway County. We do not so interpret the record.
Appellant testified that he was promised by the state police officer and by the prosecuting attorney of Conway County, after a telephone conversation with the prosecuting attorney of Saline County, that if he would enter pleas of guilty to the charges in both Saline County and Conway County, he would receive two year sentences on each of these charges, to run concurrently with each other, and that the suspension of the previous seven year sentence would not be revoked. Appellant testified further that he relied upon this agreement and was thereby induced to enter a plea of guilty to crimes which he says he did not commit in order to avoid revocation of the seven year suspended sentence. Although the appellant named the officers who made the promises upon which he says he relied, his testimony was not controverted. Accepting the appellant’s testimony as true as the trial court did, and as we must do on the record here, we conclude that appellant's plea of guilty was not voluntary and that the trial court should have vacated the sentence thereunder and granted the appellant a trial on the charges against him.
We are of the opinion that the order of the trial court should be reversed on appellant’s point “B” and that appellant should be granted a trial on the charges of burglary and petit larceny. We find no merit in appellant’s points “A” and “C”.
Reversed and remanded.
BROWN and Fogleman, JJ., dissent in part. | [
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Smith, J.
Bena Moore owned three lots in the city of Stuttgart at the time of her death May 3, 1937. She was survived by two children, a son named Alfred Wofford, and a daughter named Ida Mae Wofford. She had married Moore subsequent to the birth of these children. Ida Mae died intestate, and without issue, whereupon her brother, Alfred, being her only heir, became the sole owner of all the property owned by their mother. The father of Alfred and Ida Mae had been married prior to his marriage to Bena, their mother, and by that marriage had a daughter named Zelia Herbert, but as the lots here in question comprised an ancestral estate, Zelia claimed no interest in the lots as an heir-at-law.
Alfred died testate November 9, 1938, after having executed his last will and testament on the preceding day. This will reads as follows:
“State of Arkansas, county of Arkansas—
“Will
“Know all men by these presents, that I, Alfred Wofford, of the county of Arkansas and state of Arkansas, being of sound and disposing mind and memory, and being above the age of twenty-one, do make and publish this my last will and testament, hereby revoking all wills by me at any. time heretofore made.
“First: I direct that my just debts be paid, and that the legacies hereinafter given shall, after the payment of my debts be paid out of my estate.
“Second: I give to Hattie Johnson lots 23 and 24, block 8, Washington Heights Addition to the city of Stuttgart, with all improvements and appurtenances thereon. (Fee simple estate.)
“Third: I give to my beloved aunt, Maggie Janies, all of lot in Flood’s Addition to the city of Stuttgart. (House located at 313 North Lowe.)
“Fourth: I give to my sister, Zelia Herbert, all of lot located 404 Cleveland street, Stuttgart, Arkansas.
“Fifth: I give all the residue of my estate which consists of household goods in each house to those receiving the real estate as above.
“Sixth: I constitute and appoint Hr. J. B. Bryant sole executor of this my will.
“In witness whereof, I have hereunto set my hand this 8th day of November, 1938, in the presence of E. C. Hughes, Sophronia Jones, who attest the same. at my request.
(Signed) “Alfred Wofford.
“The above instrument now subscribed by the testator, in our presence; and we, at his request and in his presence, sign our names hereto as attesting witnesses, and at the time of our signing, said testator declared said instrument to be his last will and testament-
(Signed) “E. C. Hughes,
(Signed) “Sophronia Jones,
“Witnesses.”
For brevity and convenient reference, we will refer to the property devised in paragraph second as lot 1; to that referred to in paragraph third as lot 2, and to that referred to in paragraph fourth as lot 3.
Dr. Bryant, named as executor, qualified as such,' and is still acting in that capacity. He filed a report of his administration, and the litigation appears to have had its inception in the exceptions filed by Hattie Wofford to the confirmation of his settlement. A decree was entered sustaining her exceptions, in which it was adjudged that she was the wife of Alfred Wofford; that-she took title in fee simple to lot 1 under the will, and was entitled to the possession of lot 2 as her homestead, and that she was entitled to the $450 allowed widows under §§ 80 and 86, Pope’s Digest. This decree was rendered July 8, 1940. A motion was filed to correct this decree, Avliicli was sustained, it being found and held that the court had decreed only that Hattie had married Alfred and Avas his Avidow.
Maggie James, to Avhom lot 2 Avas devised, was Rena’s sister, and, therefore, the aunt of Alfred. Zelia Herbert, to whom lot 3 Avas devised, was Alfred’s half-sister by his father’s first marriage, and no one questions her ownership of the lot under the terms of the will.
Maggie appealed from the decree finding that Alfred and Hattie had been lawfully married, but' the appeal Avas not perfected and Avas dismissed for noncompliance with rule 9 of this court.
Thereafter the matter Avas further heard on the exceptions of Hattie to the executor’s final settlement. Li this decree it was held that the court had determined previously that Hattie Avas the widoAv of Alfred and it was adjudged in the decree from Avliicli is this appeal that as such she Avas entitled to the statutory allowances of $450.
Hattie has never disavoAved the will, but has at all limes claimed, and does now claim, that her interest in the lots should be determined by the will, which, she says, devised lot 1 to her, and, in addition, she claims lot 2 under her right of homestead as Alfred’s widoAv. Her contention is that the will does not express the intention of depriving her of her homestead right in this estate, and that she is not put to an election Avhicli Avould require abandonment of the claim of homestead if she also claims under the will.
It is insisted that the testimony does not show7 that Hattie and Alfred were ever married; but the first decree above referred to is conclusive of that fact. Hattie’s name was Johnson when she married Alfred, and it wdll be noted that he referred to her by that name — and not ■as his wife — in his will.
The will was prepared by a well-known and very reputable lawyer, who wrote it' as he sat by Alfred’s bedside. A number of witnesses were present during the preparation and execution of the will. All of these, including the subscribing witnesses, testified that the' scrivener asked Alfred which of the women present was his wife, and Alfred answered that he was an unmarried man. Alfred then asked if he might give Hattie a portion of his estate, and was told that he could devise it to whom he pleased. Hattie did not assert that she was Alfred’s wife, although she was present and saw and heard everything that occurred while the will was being prepared. Tax receipts were produced to identify the lots, and that given Hattie was described according to the plat of the survey thereof as described in the tax receipts, the others by their street numbers.
There apparently was no controversy about the disposition of Alfred’s estate for a year or more, and the executor proceeded to discharge his duties under the will and under the law. An inventory was filed of the personal property, which is not questioned. Certain debts were probated and paid. The court authorized the purchase of a monument to cost not exceeding $150, and the final settlement of the executor showed a balance of $38.17 on hand after paying all claims against the estate and expenses of administration.
There are three houses on the property which we designate as lot 1, and very conflicting testimony was offered as to whether Alfred’s homestead was in one of those houses, although he was residing in the house on lot 2 at the time of his death.
We do not recite this testimony, as our view of the case renders that fact unimportant, even though it is assumed that lot 2 was Alfred’s homestead, this for reasons later ,to be stated.
The three lots were all the real estate which Alfred owned, and his will disposed of all of them, and the disposition made is entirely inconsistent with the thought that he intended Hattie to have a homestead in addition to other lands devised her. Indeed, as we have said, there was much testimony to the effect that the lot devised Hattie was, in fact, Alfred’s homestead.
Now, of course, the widow’s right of homestead is not created by the will nor. dependent upon it. She has that right because the law gives it to her, and the husband may not, by his will, divest her of this right, unless, indeed, by his will he puts upon her the necessity of electing to take under the will; but this right of election is hers and cannot be controlled by her husband.
. This proposition was announced and applied by Justice Riddick in the case of Stokes v. Pillow, 64 Ark. 1, 40 S. W. 580, where it was said: “It becomes, therefore, material to determine whether the provision in the will was intended to be in lieu of the homestead given by law; for, if the provision in the will was made for the widow in lieu of her homestead, she would be put to her election, but, if the provision was not made in lieu of the homestead estate, she had the right to hold both the homestead and the benefits conferred by the will, 7 7
In volume 4, Page on Wills (Lifetime Edition), at § 1357 of the chapter on Election, p. 25, it is said: “If the testator’s intention is clearly expressed or otherwise shown that the spouse shall not have both the provision made by the will and the homestead rights, an election is required. Where he has so disposed of his property by will that some provision of the will will be defeated if the widow is given both the property devised to her by will and the homestead, the widow must elect between her rights under the homestead law and her rights under the will. ’ ’
There appears an extensive annotation on the subject in the note to the case of Re Flournoy, 4 A. L. R. 391. See, also, United States Fidelity & Guaranty Co. v. Edmondson, 187 Ark. 257, 59 S. W. 2d 488; McDonald v. Shaw, 92 Ark. 15, 121 S. W. 935, 28 L. R. A., N. S. 657; McEachin v. Peoples National Bank, 191 Ark. 544, 87 S. W. 2d 12.
In the decree from which is this appeal it was adjudged that ‘ ‘ The claim of homestead of Hattie Johnson in and to lot 1 of block 38 of Flood’s Addition to the city of Stuttgart (which we have referred to as lot 2) . . . is hereby disallowed and rejected.” And from that part of the decree Hattie has appealed.
It follows, from what we have said, that this holding must be affirmed, as Hattie has elected, and now elects, to claim under the will, which makes a provision for her inconsistent with her claim of homestead.
The court sustained Hattie’s claim for the $450 statutory allowances, and from that portion of the decree Maggie James has appealed.
The decree makes the following provision for the payment of these allowances: It was found that Hattie had been in possession of lot 2 since July 18, 1940, but that, as she was not entitled to its possession under her homestead claim, she should account for the rental value thereof, and a master was appointed to state the account of these rents, and that this value “shall be deducted from the allowance of $450 herein made to Hattie Wofford. When so ascertained the master shall report same to this court and chancellor for approval and same shall be credited on the said $450.” And from this portion of the decree Maggie James has appealed.
' We think this allowance was properly made. It was said in the case of Costen v. Fricke, 169 Ark. 572, 276 S. W. 579, that “The widow does not take the homestead as dower; neither does she take these statutory allowances as dower. They are in addition to dower, and the widow is not put to an election in regard thereto unless the language of the will makes it clear that the property devised to her is to be in lieu of those allowances as well as that of dower.”
We find nothing in the will inconsistent with the claim of these statutory allowances; but they must be paid, under the decree of the court below, out of any money remaining in the hands of the executor, and by charging Hattie with rents collected on the property which she claimed as her homestead, for if she is given tlie rents on this property which she claims as her homestead the result is that she is given rents to which Maggie is entitled.
We conclude, therefore, on the cross-appeal, that Hattie should be paid only such sum as the executor now has on hand, this for the reason that she did not ask the allotment to her of these statutory allowances while the executor had in his hands money to pay them. She permitted the executor to expend the money which had come to his hands in the payment of debts and expenses of administration. She appears to have made no objection to the expenditure of $150 for a monument for her husband.
In each of the recent cases of Barnes v. Cooper, ante, p. 118, 161 S. W. 2d 8, and Walls v. Phillips, ante, p. 365, 162 S. W. 2d 59, the widow’s claim of these statutory allowances was rejected, for the reason that she had not claimed them seasonably, and in the last of these cases we quoted from the earlier one as follows: “In the very recent case of Barnes v. Cooper, Admr., ante, p. 118, 161 S. W. 2d 8, we held the allowances provided by these sections were personal to the widow, and said ‘The right thereto is permissive, and, by § 87, “The widow shall apply for such property before it is distributed or sold, and not after,” and. this section applies, to the allowances under § 86, as well as to those .under § 80.’ The court, therefore, properly denied her claim for such allowances.”
The decree Avill, therefore, be modified to the extent of holding that Hattie’s claim for the statutory allowances may only be paid out of the funds which the executor has not distributed, and, as thus modified, the decree is affirmed. | [
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McCulloch, C. J.
This is an action instituted by G. B. Harris against the Western Union Telegraph Company to recover damages for alleged negligent failure to transmit and deliver a telegraphic message. The plaintiff recovered judgment below, and the defendant appealed. There is practically no dispute as to the facts of the case, which are as follows:
In July, 1907, Harris resided at -the village or town of Perry, in Perry County, Arkansas, and his wife went to Little Rock on a visit to one of her relatives, named Mrs. Pounders. While in Little Rock, she became critically ill, and at 8:3o p. m. Mrs. Pounders filed with the telegraph company for immediate transmission and delivery a message directed to the plaintiff Harris at Perry in the following words: “Your wife is very sick. Come down at once.” If the plaintiff had received the message at any time prior to 10 ¡35 o’clock that night, he could, and the proof shows that he would, have taken a train at that hour which would have brought him to Little Rock and to the bedside of his sick wife in about two hours. The message was not, however, delivered to him by that time, on account of the fact that Perry, .the receiving office, was not a night office, the office hours at that place being from 7:3o a. m. to 7 :oo p. m. On this account he did not and could not leave Perry until the next morning. His wife became unconscious sometime before he reached her, but the proof shows that if he had received the message in time to take the 10:35 M- train at Perry he would have reached her bedside several hours before she became unconscious. She died on the same day without having regained consciousness after the plaintiff reached her bedside.
When the message was filed with the operator at Little Rock for transmission, the latter gave no information to the sender that the office at Perry was not a night office, and that the message would not, or might not, be delivered before the next morning. It was proved that there is a long distance telephone line between Little Rock and Perry, and that the plaintiff had a telephone in his house where he slept that night, and could have been reached by telephone.
The failure to deliver the telegraphic message to the plaintiff on the same night it was sent was manifestly due to Line fact that Perry was not a night office, and that no operator was regularly maintained there during the hours of the night. This of itself would afford no grounds for recovery, for it is well established that telegraph companies have the right to prescribe reasonable rules and regulations for the operation of the business, including the right to prescribe reasonable hours during which messages may be sent and delivered at certain offices. Western Union Tel. Co. v. Love-Banks Co., 73 Ark. 205; Western Union Tel. Co. v. Ford, 77 Ark. 531; Western Union Tel. Co. v. Gillis, 89 Ark. 483.
But it is insisted by plaintiff that -his right of recovery is established by proof of .the fact that the defendant’s .agent at Little Rock was guilty of negligence in failing to inform the sender that the message would not be delivered that night, so that another means of communication with the plaintiff could have been adopted, viz., the telephone. We are of the opinion that this contention is well founded. The defendant’s agent, when he received the message, knew or should have known that the message would not be promptly delivered on account of the fact that the receiving office was closed during the hours of the night. The message was filed for immediate transmission and delivery, and its urgency and importance appeared on its face. The sender had the right to assume that, as the message was received by the company for immediate transmission, if there existed any reasons why it could not be promptly delivered, information thereof would be then given, so that other means could be adopted. The agent of the company had no right to assume that the sender of so urgent a message knew of the necessary delay incident to awaiting the opening of the receiving office the next day, and he therefore was not justified in withholding or failing to give information .that there would necessarily be considerable delay in sending the message. The rule is, we think, well established by the authorities that “if a telegraph company is unable, through a disarrangement of its lines or other cause, to do what it makes a business of doing, it must inform those who wish .to employ it of the fact, and thus acquaint them with ‘the advantage of employing other means.” Gray on Communication by Telegraph, § 18; Pacific Postal Tel. & Cable Co. v. Fleischner, 66 Fed. 899; Swan v. Western Union Tel. Co., 129 Fed. 318; W. U. Tel. Co. v. Bruner (Tex.), 19 S. W. 149.
The same principle is stated in another place as follows: “Where, from any cause, it is impossible to transmit the message, or where considerable delay will be necessary, and the operator is aware of the fact when the message is offered him, it is his duty to inform the sender, particularly when the message shows on its face the necessity or importance of its being speedily transmitted.” 27 Am. & Eng. Ene. Eaw, 2 Ed. 1026,
This principle, we think, demands (hat where the company’s transmitting agent knows or, under the circumstances, should know that on account of the closure of the receiving office there will be delay in delivering an urgent message which is intended for immediate delivery, it is incumbent on him to so inform the sender; and if he fails to do so, the company is liable for damages resulting from such neglect.
The further question then arises, whether or not the transmitting agent is bound to take notice of the office hours at the receiving office. The evidence in this case is silent on the question as to whether or not .the Tittle Rock agent knew that the Perry office was, in accordance with the rules, not open at night. This question is not .free from doubt, and there is little authority on the subject. Judge Thompson, in his work on Negligence (vol. 2, § 2402), states his conclusion to'be that .the agent of the company ought to be held bound to know the rules of other offices with respect to office hours. We think this is the sound and just view of the matter, and that any other rule would work an injustice to those who deal with telegraph companies. It appears to us to be conveniently within the power of the company to furnish its agents with information as to .the rules of various offices with respect to the hours within which messages may be received and delivered. In addition to this, it is within the power of one of the agents, when he receives a message for immediate transmission, to ascertain by inquiry over the lines whether the receiving office is at the time open for the receipt of messages so that he can give the necessary information to the sender.
We are of the opinion, therefore, that the facts of the case justify a recovery of damages by the plaintiff, so the judgment is affirmed. | [
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McCueeoch, C. J.
This action was instituted by plaintiffs, Alberta J. Sharpe and Augustine Boice, against J. R. B. Moore in the circuit court of Phillips County to recover possession of forty acres of land situated in that county. The plaintiffs recovered judgment below, and the defendant appealed.
Each party deraigns title from the same source, viz., from Edmund McGehee, who owned the land at the time of his death during the year 1865 under a patent from the State of Arkansas. The plaintiffs claim title to the land under a deed executed in 1881 by the widow and devisees of- Edmund McGehee. The defendant claims title under a deed executed in 1873 by the executors, including the widow, of Edmund McGehee, to the St. Louis & Memphis Railroad Company. This deed purported to convey a large body of land, including the tract in controversy, all of which was wild, timbered land; without any clearing or habitation on it. The will of Edmund McGehee conferred no power upon the executors to execute the deed, and it was executed pursuant to an order of a Mississippi court, and no order was made by the Arkansas probate court. It is conceded that on this account the deed was ineffectual as a conveyance of the testator’s title, and conveyed nothing except the undivided interest of the widow as one of the devisees under the will. The deed was executed on the condition, expressed therein, that the grantee should build and complete a railroad within three years from the date thereof. Whether this was a condition precedent or subsequent we need not now decide, since, conceding it to have been a condition subsequent, which is essential to the strength of defendant’s claim of title under the deed, the conclusion we have reached on another controlling question is' adverse to the defendant.
The condition of the deed, treating it as a condition subsequent, was not performed. No considerable amount of work in building the railroad was done, and after the condition was broken the grantor, without re-entering upon the land or by any other overt act declaring a forfeiture, subsequently executed the deed under which plaintiffs claim title. The question we propose to decide is, then, whether or not re-entry upon the land, suit or declaration of forfeiture by the grantor before conveying the land to a third party, was essential in order to effect a forfeiture, and whether any interest or estate was conveyed by the subsequent deed under which the plaintiffs claim title. We pretermit a discussion of the numerous other questions presented and argued in the case.
The doctrine of estates upon condition is of feudal origin, of which system the doctrine of title by livery of seisin formed an essential part, on account of the condition of real property at that time, and the only practical method of conveying it. This was then a doctrine of necessity, for in that day no system of registration of conveyances existed. Indeed, lands were not generally conveyed by writings, and the only practical method of giving notice of a change of title was either by actual delivery of possession or by symbolic delivery in sight of the land.
At common law, the only method whereby a forfeiture could be effected for breach of condition was by re-entry upon the premises or by a public attempt to re-enter, with a declaration of forfeiture. This, too, grew out of the doctrine of livery of seisin' the reason being that the forfeiture for condition broken must be accomplished by acts of equal dignity and notoriety with those which created the condition, viz., delivery, either actual or symbolic. “As by the old common law a freehold could be created only by the ceremony of livery of seisin, the corresponding- ceremony of re-entry was necessary in order to determine it, or, as Coke has it, ‘an estate of freehold cannot begin nor end without ceremony.’ ” (1 Jones on Conveyancing in Real Property, § 715.) “The entry, moreover, in the language of the Touchstone, should be ‘an open and notorious act, equivalent to investiture of land by livery of seisin, that notoriety might be given to the change of title.’ It is not necessary, however, that the party entering should declare at the time for what purpose he enters. The act speaks for itself.” (lb. § 716.)
In his recent work on Real Property, Professor Minor (vol. 1, P- 532)> says: “It is an established rule of the common law that if the conditional estate be a freehold the mere occurrence of the event which constitutes the violation of the condition does not defeat the estate, because as a freehold can, at common law, only be created by livery of seisin, there is needed a corresponding notoriety in order to determine it. This corresponding notoriety is the re-entry of the grantor or his heirs. * * * No ac-
tual re-entry is necessary to determine an estate for years on condition, ‘for, as a term of years may begin without ceremony, so it may end without ceremony’.”
It also must be conceded that at common law the right of reentry for condition broken was not assignable, and could only be exercised by the grantor who created the condition, or by his privies in blood. It could not be exercised by one who was only the grantor’s privy in estate. This under the maxim that, in order to discourage maintenance, “nothing which lies in action, entry or re-entry can be granted.” The same rule prohibited the conveyance of lands held adversely, or any interest therein. This rule was created under the English statute (32 Henry VIII, chap. 9) against selling pretended titles, and Sir Edward Coke states the reason therefor as follows: “To prevent maintenance, suppression of right, and stirring up of suits; and therefore nothing in action, entry or re-entry can be granted over; for under color thereof pretended titles might be granted to great men whereby right might be trodden down and the weak oppressed, which the common law forbiddeth.” Coke on Rittleton, 214a.
Tn many of the States of the American Union this English statute against the sale of pretended titles to lands not in possession has been re-enacted, and in a few States the doctrine has been recognized and enforced as a part of the common law. But this court in Lytle v. State, 17 Ark. 674, held that “the provisions of these statutes, upon which so much of the law of maintenance and champerty rests for support in the English law, so far from having been re-enacted in this State, have been met here bv directly conflicting legislation in the several provisions touching the sale of real estate held in adverse possession; whereby the right of ‘alienation and purchase’ of every interest, title and estate therein has been enlarged almost to an unlimited extent.’ ”
This rule has long since been changed in England by statute. By the Wills Act of 1837 (1 Victoria, c. 26, § 3), all rights of entry for condition broken were made devisable, and in 1844 another statute (7 & 8 Victoria, c. 76, § 5) made them assignable. At common law there was a distinctive reason for the rule of inhibition against the assignment of a grantor’s rights before and after breach of condition. Judge Hare in his note to Dumpor’s Case (1 Smith’s Beading Cases, p. 112) says: “When it is said, in general terms, that a condition cannot be taken advantage of, save by the grantor and his heirs, and, of course, that it is not assignable, two very distinct points of law, resting on different reasons, are involved in the assertion. Before breach the reason why an assignee cannot take advantage of a condition really depends upon the want of capacity for transfer of the condition itself. But after breach the condition itself is gone, and there arises in its stead, whatever may be its term, in the case of freehold estates, at all events when created by a common-law conveyance, a right or title of entry, which is as little capable of assignment as the condition, although the obstacles to its assignment are of a different nature, arising out of the policy of the common law, and the provisions of the statute of maintenance, which forbade the sale or transfer-of all claims or demands unsustained by possession and resting solely in entry or action.”
However, the same learned author states his opinion to be that the abrogation of the rule or statute against maintenance does not alter the rule as to the non-assignability of the grantor’s right before re-entry. On that subject he says: “It does not necessarily follow that the right to enforce the forfeiture of a condition is equally susceptible of assignment. The right to enter for a breach of condition is a bare right or remedy, which differs essentially from the right to clothe the title to land with possession by expelling a disseisor or intruder, for, while the right of property and right of possession belong in the one case, to the person who enters, they are vested in the other in him on whom the entry is made, and continue in full force, although liable to be defeated down to the last moment before that at which the grantor enters.”
The contrary view was expressed by the New Jersey Court of Errors and Appeals in a learned and exhaustive opinion in which all judges concurred. Bouvier v. Baltimore & N. Y. Ry. Co., 67 N. J. L. 281. In the opinion in that case it was said: “A distinction not always clearly made should, however, be borne in mind. Before breach, as in case of any determinable fee, there is in the grantor only a possibility of reverter. 4 Kent, Com. 11n; Nicoll v. N. Y. & E. Rd. Co., 12 N. Y. 121. After breach there is a vested right.” At another place in the opinion, after referring to the statute of that State declaring the assignability of estates in expectancy, it is said: “It is suggested also that the proviso in the act that no chose in action shall thereby be made assignable at law excepts rights of entry after breach from its operation; but I do not take that view. Some judges have spoken of the right after breach as a mere chose in action, but the designation is inaccurate. A right of entry is an interest in land. * * * But, although it may be that the statute only authorizes a transfer before breach, I think a transfer after breach is also valid, for the reason that moved the Supreme Court of Pennsylvania to a like decision. I would not say, as did that court, that a right of entry can be levied on and sold at execution, but I think that in this State it may be transferred at the will of the holder.”
The Pennsylvania Supreme Court in McKissick v. Pickle, 16 Pa. St. 140, where, under a deed which created a condition subsequent and wherein the grantor reserved for himself, his heirs and assigns, the right of re-entry, the question was whether or not a purchaser of the grantor’s interest at execution sale could exercise the right, the court said: “The law against maintenance has never been adopted in this State. The reason assigned why a condition in England could not be assigned is, because no title could be made to land held by another adversely, as that was against the law, which forbids maintenance. And hence the rule that none but the grantor or his heirs can enter for condition broken. This reason does not apply here, where the grantor expressly reserves the right (citing authorities). In the last case Chief Justice Gibson says, none but the feoffer or his heirs can enter; and the reason why a right of entry cannot be assigned is that a contrary doctrine would favor maintenance and promote litigation. This is a fair case for the application of the maxim, cessante ratione cessat ipse lex.”
We perceive no distinction by reason of the grantor having expressly reserved the right of re-entry to his assignee.
The common-law doctrine of livery of seisin and the law against maintenance or the sale of pretended titles have never found lodgment in this State. The former is contrary to our whole scheme of laws, and especially the system of registration of land titles which has existed in this State-from the beginning. Before the statute was passed (December 9, 1837) putting in force in this State the common law of England so far as applicable to our form of government, the following statute was passed, which undoubtedly worked an entire change and swept away every vestige of the feudal doctrine concerning alienation of real estate and interests therein:
“Any person claiming title to any real estate may, notwithstanding there may be an adverse possession thereof, sell and convey his interest in the same manner and with like effect as if he was in the actual possession thereof.
“The term ‘real estate/ as used in this act, shall be construed as co-extensive in meaning with ‘lands, tenements and hereditaments/ and as embracing all chattels real.” (Secs. 736, 737, Kirby’s Digest.)
Of this statute the court, in Cloyes v. Beebe, 14 Ark. 489, said: “It is true that at common law, if a man had in him only the right of possession or property, he could not convey it to another, lest, in the language of the ancient law, ‘pretended titles might be granted to great men, whereby justice might be trodden down and the weak oppressed.’ But this was for the feudal reason that possession was an indispensable element of alienation. * * * But every vestige of this feudal doctrine, which thus restrained the alienation of real estate, has been swept off by our statute, which enacts that ‘any person claiming title to any real estate may, notwithstanding there may be an adverse possession thereof, sell and convey his interest in-the same manner and with like effect as if he was in the actual possession thereof.’ ”
It is insisted by learned counsel for appellant that the statute accomplished no more than an abrogation of the rule against main tenance, and that, nothwithstanding the statute, the title does not revert to the grantor nor his heirs until after re-entry, and that without entry neither he nor they have anything to convey.
Conceding, as they contend, that the statute only abrogates the rule against maintenance, that, in our opinion, is sufficient. For we conceive the rule stated by the New Jersey and Pennsylvania courts to be correct, that, after condition broken, the grantor or his heirs have a vested right or interest which is assignable. But the statute accomplishes more than a mere abrogation of the rule against maintenance. It declares that the grantor, notwithstanding an adverse possession, may sell his interest in the real estate, and gives the broadest definition to the term “real estate.” Of this part of the statute our court has said, quoting from Sir Edward Coke, that the word hereditaments “is by far the largest and most comprehensive expression, because it included not only lands and tenements, but whatever may be inherited, be it corporeal or incorporeal, real, personal or mixed.” Proceeding further, the court said: “And thus it appears that, although at common law there were certain rights to and interests in real estate that for want of possession, either actual or constructive, could not be alienated to a stranger, although they could be released or devised by will, or would pass to the heir or executor — as contingencies and mere possibilities — such is the comprehensiveness of our statute in embracing hereditaments in the term 'real estate’ that that distinction is also annihiliated, and therefore, in this State, whatever interest in real estate may be inherited may be bargained, sold or conveyed.” Cloyes v. Beebe, 14 Ark. 489.
There is very little conflict, if any, among the text writers and lexicographers as to the meaning of the word “hereditaments.” It is “anything that may be inherited, be it corporeal or incorporeal, real, personal or mixed. The word is almost as comprehensive as property.” Anderson’s Law Dictionary; 1 Coke, Inst. 6; 3 Kent, Comm. 401.
“Whatsoever may be inherited is an hereditament. In other words, when a right is of such a nature that on the death of its owner intestate it descends to his heir, it is an hereditatment. The term includes a few rights unconnected with land, but it is generally used as the widest expression for real property of all kinds.” Rapalje & Lawrence, Law Dictionary.
We do not deem it necessary, however, to resort to any technical meaning of the word hereditaments, for i-t is obvious that the Legislature, by the first section quoted above, intended to make interests of every kind whatever in lands alienable. This court has placed the same construction on the statute in another class of cases, not differing, we think, in principle from the present case. Bagley v. Fletcher, 44 Ark. 153. In that case the question was as to the right of a minor to disaffirm by the execution of a quitclaim deed, without having re-entered or manifested a disaffirmance by any other overt act. The court held that the infant’s deed vested in the grantee a defeasible estate in fee, subject to be defeated by disaffirmance, and that the execution of the quitclaim deed was effectual for the purpose of conveying the minor’s interest, and was of such a hostile character to the original deed as amounted to a revocation of the former grant. That decision was rendered by a divided court, but there was no disagreement among the judges on the point which is pertinent here. Judge Eakin, dissenting, conceded that a deed with covenants of warranty, executed by a quondam infant, would operate as a disaffirmance and revocation of the former deed; but he held that a similar effect should not be given to a quitclaim deed. In his dissenting opinion he said: “In other States, as here, where lands adversely held may be transferred by the owners, the entry is dispensed with as an overt and solemn act of disaffirmance, and the deed, if incompatible with'any supposed recognition of the outstanding title, is taken as a manifestation of an intention to do what would, under the common law, have been actually necessary.”
The decision in Bagley v. Fletcher was recently followed in the case of Beauchamp v. Bertig, 90 Ark. 351, where the land conveyed by the minor was held adversely by his original grantee.
So it may be said here with equal force, as in the case just cited, that the grantor in a conditional deed, by the execution of another deed to a third person after breach of the condition, manifests in the most unmistakable manner his intention of declaring a forfeiture. It is equivalent to an actual re-entry or a declaration of forfeiture. The execution of his subsequent deed, being in hostility to his former grant, necessarily works a forfeiture. The execution and registration of the deed is an act of the highest degree of hostility, and one which the original grantee on condition must take notice of, because it in' the line of his title. The statement of a condition in the deed puts the grantee and those in privity with him on notice as to any subsequent deed executed by the grantor in hostility to the title thereby conveyed.
The Virginia statute ('Code 1904, § 2418) 'declares that “any interest in or claim to real estate may be disposed of by deed or will.” It was held under this provision that a right of action for land in the adverse possession of another, or a right of entry thereon after conditions broken, by analogy to contingent remainders and conditional limitations, which are also mere possibilities, may be assigned by deed or will. Carrington v. Goddin, 13 Gratt. 587; Young v. Young, 89 Va. 675; Wilson v. Langhorne, 102 Va. 639, 47 N. E. 872.
In Wilson v. Langhorne, 102 Va. 640, the court, referring to a former decision construing the statute, said: “The court in mat case indulges in no refinement of construction. It is content to give plain words their usual and every day meaning, and the interpretation' there placed upon the statute did away forevei with the niceties by which the devolution of property had theretofore been embarrassed and hindered, and made capable of disposition by deed or will any interest in or claim to real estate.”
Kentucky has a statute identical in language with the Virginia statute, and the Court of Appeals of Kentucky in construing it said: “The effect of this statute is to obviate at once all the difficulties growing out of the distinction, which had been established by judicial construction, between such estates as were alienable and such as were not. It will not be doubted, we suppose, that under this statute every conceivable interest in or claim to real estate, whether present or future, vested or contingent, and however acquired, may be disposed of by will or deed.” Nutter v. Russell, 3 Metcalfe, 163. In Kenner v. American Cont. Co., 9 Bush 202, the Kentucky court held that the right to enter for condition broken could be devised.
The Supreme Court of the United States in Schlesinger v. Kansas City S. Ry. Co., 152 U. S. 453, said: “In the case of a private grant entry by the grantor or any act equivalent thereto, showing a purpose to take advantage of the breach of condition subsequent and to reclaim the estate forfeited by such -breach, is all that is required.” In that case the forfeiture was declared in a subsequent conveyance to another grantee, and the court said that the grantor had manifested his intention to forfeit the former grant.
Reliance is placed by learned counsel on the New York cases, principally Uppington v. Corrigan, 79 Hun 488, a decision by the Appellate Division of the Supreme Court of that State. That decision leaves out of account the distinction between the rights of a grantor before and after condition broken. But in that case (which was one concerning the effect of a devise of lands previously granted away by deed on condition subsequent) the devise ■ was made before breach of the condition. The effect of that decision was merely to hold that before condition broken the grantor had no interest which could be devised by will.
We think it clear, both upon reason and authority, that where, as in this State, the common-law doctrine of livery of seisin is abolished by a statute authorizing a conveyance of land, whether held in possession or not, a subsequent deed executed by an original grantor on condition is equivalent to re-entry, and is effectual for the purpose of declaring a forfeiture and vesting the title in the subsequent grantee. A hostile deed after condition broken serves to divest the defeasible title out of the grantee on condition and to convey the title. This is, as said by the Pennsylvania court, a proper application of the maxim that, the reason of the law ceasing, the law itself ceased.
The judgment of the circuit court is therefore affirmed. | [
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McCurroch, C. J.
This is an action, instituted by the appellees in the chancery court of. Desha County against appellants to' quiet title to a tract of land claimed by them as heirs at law of William F. Trippe, deceased, who owned it. The land was wild and unoccupied, and appellants claim title under a forfeiture to the State for non-payment of taxes. It was forfeited for the taxes of the year 1897, and appellants purchased it from the State in 1904. The appellees tendered to appellants the amount of the taxes, penalty and costs, with interest, for which the land was sold, together with all taxes which would have become due for subsequent years if the lands had remained on the tax books. The court rendered a decree in accordance with the prayer of the complaint, canceling the tax forfeiture and subsequent deed to appellants.
The principal attack on the validity of the forfeiture is grounded on the fact that the clerk failed to keep a separate record, as required by law, of the lands forfeited to the State, and the chancellor based the decree declaring the forfeiture to be void on that alleged defect in the record. The clerk made a single record, duly certified, of all the lands sold that year, both to individuals and to the State, but did not make a separate record of the sales to the State.
The statute prescribing the duties of the clerk in this regard is as follows:
“The clerk of the county court shall attend all such sales of delinquent lands and lots, town or city lots, or parts thereof, made by the collector of the county, and shall make a record thereof in a substantial book, therein describing the several tracts of land, town or city lots, or parts thereof, as the same shall be described in the advertisement aforesaid, stating what part of each tract of land, town or city lot was sold, and the amount of taxes, penalty and costs due thereon, and to whom sold; and he shall record in a separate book, to be kept for that purpose, each tract of land, town or city lot sold to the State, together with the taxes, penalty and costs due thereon. Immediately after such sale the clerk of the county court shall make out and certify to the auditor of State a copy of each of said sale lists as recorded in said book, together with an abstract thereof showing the total valuation of the property contained in each, and the total amount of the taxes, penalty and costs thereon in each.” Kirby’s Digest, § 7092.
The statute, literally construed, contemplates that the clerk shall keep two separate records of the lists of lands sold to individuals and the State, describing the several tracts sold and stating the amount of taxes, penalty and costs due thereon and to whom sold. It obviously does not mean that the first mentioned record must contain a list of the lands sold to the State, for it requires that the record shall state “what part of each tract of land, town or city lot was sold,” and there is no provision in the statute for less than the whole of the tract or lot assessed to be bid off in the name of the State. If no person offers the full amount of the taxes, penalty and cost due thereon, the whole of it is’bid off in the name of the State. Sec. 7087, Kirby’s Digest. It cannot be said that the statute, when literally construed, requires that the list of lands sold to the State must be recorded in a separate book, for the statute is contradictory in that respect. It does say that the clerk shall “record in a separate book” the list of lands sold to the State; but the concluding paragraph of the section provides that he shall certify to the auditor “a copy of each of said lists as recorded in said book,” showing that both lists are recorded in the same book, but separately. This shows that the framers of the statute did not intend to provide with accuracy of detail the particular method in which the record should be kept, but that the end "to be attained was that a permanent record should be kept from which the owner of the land could ascertain the amount of taxes, penalty and costs for which his land was sold. Cooper v. Freeman, 61 Ark. 36; Salinger v. Gunn, Id. 414; Quertermous v. Walls, 70 Ark. 326.
The question then arises, whether or not the failure to keep separate records of the two lists of sales — those to individuals and those to the State — invalidates the sale when both are kept and certified together. There is no reason to believe that the provision for keeping the two lists separate was intended to be mandatory, and no reason to so treat it. That is merely a matter of detail, and the keeping of the lists separate affords no protection to the owner. If he searches the record at all for the sale of his land at tax sale, he finds it in the list. He is chargeable with notice of the contents of that list, it affords all the information that would be obtained from a separate list, and he is not misled by the absence of, or failure to keep, such lists. How then is he prejudiced by the failure to separate the two lists? It is the declared policy of our revenue laws to disregard technical irregularities in tax sales which are not prejudicial to the rights of the owner, and to require all proceedings to set aside sales on account óf such irregularities to be instituted during the period allowed for redemption. Kirby’s Digest, § 7114.
This court upheld that statute, but restricted its operation to mere irregularities which are non-prejudicial to the rights of the owner. In Radcliffe v. Scruggs, 46 Ark. 96, Judge Smith, speaking for the court, said: “Our legislation and previous decisions have always distinguished between this class of defects, which have no tendency to injuriously affect the taxpayer, and substantial defects, such as go to the jurisdiction of the levying court to levy a particular tax, or to the power of the officer to sell for nonpayment, or the omission of any legal duty which is calculated to prejudice the land owner.”
Search will be in vain for a decision of this court holding a mere irregularity in tax proceedings, which is not jurisdictional and which does not affect nor prejudice any right of the land owner, sufficient to invalidate a tax sale. In all cases where tax sales have been held invalid on account of failure to strictly observe some requirement of the statute, either a defect of jurisdiction is found to have arisen by reason of the omission or a possible prejudicial effect is found in the omission of some safeguard which the statute has provided.
It is contended that Quertermous v. Walls is decisive of the question, but we do not find it so. In that case the. recital of facts in the opinion, which follows closely the lines of the record in that respect, shows an admission in the answer to the effect “that there was no separate book wherein a record of the said tax sales was entered.” This can only be understood to mean that no record of the tax sales was kept. The opinion first holds the sale to be void on other grounds stated therein, and then lays down the law broadly that the requirement of the statute for a record of sales to be kept by the clerk is mandatory, and that his failure to comply with the statute avoids the sale. It is not therein held that all the requirements as to the details are mandatory. The mandatory feature of the statute is described' in the following language: “It was intended that the record of the sale actually made should be preserved in permanent form for the protection of the land owner. He can rely upon this record to determine whether his land has been sold, and whether it was legally sold for the proper amount of taxes, penalty and costs charged against it.” The language of the opinion must of course be limited in its application to the particular facts of that case, as nothing else was before the court for its decision.
A further attack is made on the validity of the tax sale on the ground that the clerk, in his certificate to the record of the delinquent list, failed to state that the newspaper in which the list was published had a bona fide circulation in the county for a period of thirty days before the date of publication. The statute then in force regulating the publication of legal advertisements did not require that the newspaper should have a circulation for any definite length of time before publication. Sand. & H. Dig., § 4684. But, aside from this, it is sufficient to say that the section of the statute prescribing the duties of the clerk in making his certificate does not require that the circulation of the newspaper, or the fact that it had a bona fide circulation, should be stated in the certificate. All that the statute requires is that the clerk “shall certify at the foot of said record, stating in what newspaper said list was published, and the date of publication, and for what length of time the same was published before the second Monday in June then next ensuing.” ■ Kirby’s Dig-, § 7086. The certificate of the clerk is sufficient if it follows the language of the statute.
The chancellor erred in annulling the tax sale. Therefore the decree is reversed, and the cause remanded with directions to dismiss the complaint for want of equity.
Wood, J., dissented. | [
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Frauenthar, J.,
(after stating the facts.) The defendant admits the execution of the above contract, by which he agreed that he would not engage in the insurance business mentioned in said contract at the place and for the time therein set forth. Fie contends, however, that this is a contract in restraint of trade, and is therefore invalid. The doctrine that is invoked to avoid a contract in restraint of trade is based upon a public policy. But a contract is not against a sound public policy that only partially limits a person’s business, and leaves open to him practically an unlimited field of industrial activity, and which does not injuriously affect the interest of the public, where if only prevents a person from carrying on a particular business. In such case there is no good reason for restricting the freedom of contracts. The rule with reference to such contracts is thus stated in the case of Leather Cloth Co. v. Lorsont, L. R. 9 Eq. 353, quoted with approval by the Supreme Court of Michigan in the case of Up River Ice Co. v. Denler, 114 Mich. 296:
“Public policy requires that every man shall be at liberty to work for himself, and shall not be at liberty to deprive himself or the State of his labor, skill or talent by any contract that he enters into. On the other hand, public policy requires that when a man has by skill or by any other means obtained something which he wants to sell, he should be at liberty to sell it in the most advantageous way in the market; and, in order to enable him to sell it advantageously in the market, it is necessary that he should be able to preclude himself from entering into competition with the purchaser. In such a -case the same public policy that enables him to do that does not restrain him from alienating that which he wants to alienate, and therefore enables him to enter into any stipulation, however restrictive it is, provided that restriction, in the judgment of the court, is not unreasonable, having regard to the subject-matter of the contract.”
And so it has been by this court uniformly held that where a restraint of trade is limited as to time and place and is reasonable, the agreement is not against public policy and is not invalid. In the case of Webster v. Williams, 62 Ark. 101, this court announces the principle as follows:' “Contracts in partial restraint of trade, if they are reasonable and founded upon a legal consideration, will be enforced.” Keith v. Herschberg Optical Co., 48 Ark. 138; Daniels v. Brodie, 54 Ark. 216; 1 Page on Contracts, § 375; 9 Cyc. 529.
Ordinarily, the agreement to refrain from a calling within a given space and for a specified time must accompany a sale of a business property itself. But if the enterprise is disconnected with any plant or tangible property, and is a business with a good will and custom, it is still valid to agree, as a protection to the purchaser thereof, from competition in that line of business, to discontinue such calling, and abstain from such business. 1 Page on Contracts, § 373; Wood v. Whitehead Bros. Co., 165 N. Y. 545.
In the case at bar each insurance agency that was a party to the contract owned a separate business. Each agency had what are called, in the insurance business, expirations. These consisted of custom and trade which would ordinarily be renewed in and held by such agency. These expirations were considered property. If was actually the good will of the agencies. Good will is “the probability that the old customers will resort to the old place for the purpose of trade.” It is recognized in law as a thing of value which may be sold. 1 Page on 'Contracts, § 374-
Each agency by this contract sold its expirations, good will and business. That constituted a thing of value; and incidental thereto they had the legal right to protect the purchaser in that business which he thus acquired by agreeing to refrain from engaging in the same business within Jefferson County for a period of five years. Such a contract was therefore not invalid. Under the evidence in this case the defendant was an active force and party in the Travellers Insurance Company. By his personal efforts in soliciting business for that company a large amount of its custom was obtained, and it is but reasonable to presume that a great part of that trade was attracted and retained by him personally and would follow him personally. The good will of that company in its local agency was largely the good will of the defendant. And the defendant was also interested in all the properties and business of the-Travellers Insurance 'Company. He was a large stockholder in that corporation, and therefore actually owned a part of the business and good will which that company sold; and as such stockholder the defendant received a part of the consideration which was paid to that company therefor.
In the case of Up River Ice Co. v. Denler, 114 Mich. 296, a stockholder in a corporation which was engaged in the ice business sold his stock in the company, and in consideration of the purchase agreed not to engage in the ice business at a specified place. In a suit to enjoin him from a violation of that contract he contended “that contracts of this character are enforceable only when connected with the good will of some business, and that individually he owned and sold no business.” In that case the court held that the money received by -him on the sale of his stock of the corporation was a sufficient consideration to support the agreement of the individual stockholder not to engage in the business that had been conducted by the corporation.
The defendant received as a shareholder of the Travellers Insurance Company a valid consideration for his agreement not to engage in the insurance business; and this agreement was connected with a sale of a business and property in which he was interested. His interest in the property and good will of the local agency of the Travellers Insurance Company which were sold, and the obligations which he assumed by the execution of the contract, were the same in legal effect as if the company with which he was connected, and which he partly owned, had been a partnership instead of a corporation. The contract which he thus executed was binding on him in all its terms.
The various parties to the contract were agents whose business consisted in soliciting insurance for insurance companies throughout the United States and other countries that actually wrote insurance and issued policies. Under the evidence in this case and the finding of the chancellor, these agencies did not fix or regulate the price or premium to be paid for insuring property. The sale of these agencies to the company did not, under the evidence, affect that price in any way. The object of associating themselves together was to decrease the expenses of the several agencies; and the object of requiring an agreement that all parties would abstain from soliciting the same kind of insurance business was to keep the good will of the various agencies, and thus retain the total volume of business of all the agencies. There was no evidence that showed that this was a combination for the purpose of fixing or regulating the price of insurance, or that this agreement could have that effect. The contract was therefore not invalidated by the act of the General Assembly of Arkansas, approved January 23, 1905, and commonly known as the “anti-trust law.” Acts 1905, p. 1.
The purpose and aim of this contract was not to stifle competition. Its object was to sell and transfer a business and the good will of that business. To maintain that good will in its integrity as a thing of value, it was essential that the vendor should not solicit and thus destroy that custom and trade which he had sold. It was therefore not invalid for the vendor to agree, for the purpose of protecting the vendee in his purchase of that good will, to abstain from engaging in the business within a limited space and for a limited time.
It is urged that, because the Home Insurance Agency was not incorporated, and therefore not in existence, at the date of the contract, there was a lack of mutuality,, and the contract is not effective on that account. But a promise that lacks mutuality at its inception becomes binding on the promisor after performance by the promisee. Where, therefore, a corporation, after its organization, makes the original agreement its own contract by adopting and acting on it, the original contract becomes binding on it; and where all the parties after such organization recognize and act.on the original contract, all parties to it are bound by its terms. 9 Cyc. 329; 10 Cyc. 263; Perry v. Little Rock, etc., Ry. Co. 44 Ark. 383.
In the case at bar the Home Insurance. Agency was duly organized on November 1, 1905, and it then accepted and adopted the contract, which was in legal effect a proposal to the future corporation. All the parties thereafter recognized the contract as effective and acted upon it. The Home Insurance Agency, in conformity with the contract, issued its stock to the various parties, and took over the books, papers, expirations and good will of the various agencies. The defendant, in conformity with the contract, then received and accepted the stock. The contract thus became mutual and binding on all the parties.
It is also urged that the Bell-Vernon 'Company and the Travellers Insurance Company were corporations, and it was beyond the powers of these corporations to enter into the contract to refrain from engaging in the business of a local insurance agency; and on this account the contract was not mutual, and therefore not binding on the defendant. But the contract was but an incident to a sale of property, and it was within the implied power of thése corporations to make any disposition of their property which in the their judgment was for the benefit of the corporations. It is not shown that the contract was without the scope of the purposes of their creation; and within that scope these corporations had the same power to make and take contracts which natural persons have. The presumption is that this contract made by these corporations was not ultra vires. But, if it should be considered that this contract was in excess of the powers of these corporations to enter into, yet, as has been said above, the contract has been so carried out that these corporations have received the benefits thereof. They would not therefore be permitted to violate the obligations of that contract upon the ground that they did not have the power to make it, after having thus received the fruits and benefits thereof. Bloch Queensware Co. v. Metzger, 70 Ark. 238; Minneapolis F. & M. Ins. Co. v. Norman, 74 Ark. 190; Arkadelphia Lbr. Co. v. Posey, 74 Ark. 377; Ark. & La. Ry. Co. v. Stroude, 77 Ark. 109; White River, L. & W. Ry. Co. v. Star R. & L. Co., 77 Ark. 128; 5 Thompson, Corp. § 6021; 10 Cyc. 1156.
The defendant cannot, therefore, on this account claim that the contract so lacked the requisite of mutuality that it was not binding on him.
This suit was originally instituted by the Home Insurance Agency as the sole plaintiff, and on the same day of and before the trial below the Either plaintiffs were made parties to the suit over defendant’s objection. It is urged that the Home Insurance Agency had no cause of action under the contract, because it was not in existence at the time of the execution thereof; and that therefore the complaint could not be amended by making other parties plaintiff who may have had a right of action thereon.
By section 5999 of Kirby’s Digest it is provided that every action must be prosecuted in the name of the real party in interest, with certain exceptions which do not apply here. The beneficial owner-is the real party in interest within the meaning of this provision of the code. 30 Cyc. 45. Where a contract is entered into for the benefit of a third person, the latter is the real party in interest; and a majority of the American courts have adopted the rule that such person may maintain an action for the violation of the contract. Lawrence v. Fox, 20 N. Y. 268; Brewer v. Dyer, 7 Cush. (Mass.) 337; 30 Cyc. 65.
The contract which is the foundation of this suit was executed for the benefit of the Home Insurance Agency; and later, when the Home Insurance Agency came into existence, it was recognized, adopted and acted upon by all the parties as the contract of that company. It was therefore the real party in interest and a proper party plaintiff. There was therefore a cause of action with a proper plaintiff set forth by the complaint. The court had then the right to amend the complaint by adding to or striking out the name of any party at any time in furtherance of justice. Kirby’s Digest, § 6145. And the question as to when and whether such parties should be brought in as necessary to a complete determination of the controversy is within the sound discretion of the trial court. And in this case we do not think that discretion has been abused. 31 Cyc. 477.
In the decree the chancellor also enjoined the firms of Banks, Bloom & Company and Bloom, Hanf & Bloom, for said period, from engaging in or conducting any insurance business, save life, within Jefferson County as long as defendant was interested in or connected with said companies. It is true that if the defendant engaged in such business during the term and- within the territory specified, either individually or as a partner in a firm, or if he caused it to be believed among the customers of the agency transferred that he was a partner or member of the competitive companies, this would be a breach of the contract by him. Daniels v. Brodie, 54 Ark. 216. But the above firms or companies were not parties to the contract, and were not parties to this suit, and could not be bound by this decree. The decree should enjoin the defendant only from engaging in said business for said period and within said territory, either for himself individually or as a partner of any firm or member of any corporation engaged in said business, and from holding himself out to the customers of the insurance business in that territory that he was a member of such firm or company.
To the extent that the decree enjoins the above named firms or companies, it is erroneous, and it should be modified so as to enjoin only the defendant. And, so modified, the decree will be affirmed. | [
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Battue, J.
This cause has been in this court once before on appeal. The opinion delivered at that time can be found in Louisiana & Ark. Ry. Co. v. State, 85 Ark. 12. The law and proper mode of procedure in the case were determined in that opinion. The judgment of the circuit court was reversed, and the cause was remanded for 'further proceedings. Up to that time the facts in the case are set out in the opinion.
Upon the return of the case to the circuit court the defendant filed a special plea, which is in part as follows:
“Comes the defendant, Louisiana & Arkansas Railway Company, and, reasserting that it is not in any manner amenable to the indictment herein, says: (1) That it is not guilty as charged in the indictment. (2) The Louisiana & Arkansas Railway Company, further pleading, says that said ‘Snow Crossing’ is simply the crossing of a country road over and across the line of defendant’s railway, and that no railroad crosses the line of defendant’s road at or within many miles of said Snow Crossing. That said Snow Crossing is not a town, and that the only improvements of any kind there consist of a cotton gin and two small houses and a small box house used as a barn, and that the total population of said Snow Crossing consists of two families with about ten persons in all; that the surrounding country is sparsely settled, the same being largely wild and uncultivated land; that the same is a farming country, principally devoted to the raising of cotton, so far as any salable crops are concerned, which is hauled to the neighboring towns of Magnolia, Lewisville and Taylor, where the farmers are apcustomed to purchase their supplies. That at Experiment, about two miles north of Snow Crossing on the line of the railroad of said railway company, there is a flag station where passengers and freight are received and discharged, and that about five miles south of said Snow Crossing on the line of said railroad is the station .of Taylor, where there is a depot building, and where a telegraph operator and passenger and freight agents are employed and stationed, and that said stations of Experiment and Taylor furnish to the inhabitants at or near Snow Crossing ample transportation facilities, and that to • require the erection and maintenance of a regular station at Snow Crossing would force said defendant to maintain three stations in a sparsely settled country within a distance of about seven miles. That to erect a suitable station at Snow Crossing would cost in the neighborhood of one thousand dollars ($1,000). That Snow Crossing is located at the foot of a very heavy grade on the line of defendant’s railroad, and, because of the topography of the country, it is impracticable (except with very great expense) to provide side tracks and passing tracks at said point, such as would be necessary to comply with act No. 105 of 1905, under which this indictment is found. And that it would cost to maintain same and pay the necessary agents and employees about seventy-five dollars ($75) per month, and that the receipts from freight and passengers at Snow Crossing would not meet and pay more than a small proportion of such sum and the expenses attendant upon the maintaining said station, and that such station would have to be operated at a large monthly loss to said defendant.
5th. That Snow Crossing is located at the foot of a very heavy grade on the line of defendant’s railway — the heaviest, grade at any point on said line. It is a point where there is a rising grade to the north for a long distance, some five thousand feet, eleven hundred feet of which is a one per cent, grade (that is, a rise of one foot for every one hundred feet) and said point of Snow Crossing is located about thirty-four hundred feet north of the most abrupt grade on the whole line of defendant’s railway, being a hill known as ‘Red Cut Hill,’ the grade there being a two per cent, grade. In order to overcome the difficulty in getting over the heavy grade south of Snow Crossing, it is necessary to us'e the momentum acquired by trains in going down the hill that lies to the north of Snow Crossing, and, if compelled to stop at Snow Crossing to receive or discharge freight and passengers, ordinary freight trains would have to double to Taylor, as an engine there could only start and pull up over the two per cent, hill a little more than fifty per cent, of what is the customary and necessary tonnage of such trains; and passenger trains south bound in handling the usual equipment of such passenger trains under adverse weather conditions, or with an engine not steaming properly, if required to stop at said Snow Crossing, would be compelled to back up north in order to attain sufficient speed and momentum to take such trains over the heavy grade of said ‘Red Cut Hill.’ About thirty-five hundred feet north of said Snow Crossing there is a one degree curve in the line of said railway, Which curve is 2,500 feet in length, and which curve, coupled with the necessity of backing trains no'rth of Snow Crossing if they were compelled to stop there, in order to overcome the heavy grade of said Red Cut Hill, would greatly increase the danger of accidents to said freight and passenger trains and to the employees operating same, and to the employees upon United States mail cars, and to the passengers transported upon said line of railway; and that to have to cut in two the usual freight trains at Snow Crossing and to double from that point to Taylor would greatly increase the danger to property and to the lives of the employees of said railroad company, and this danger would be particularly great when this was required to be done in the night time, which would frequently be the case; and that the only way in which the provisions of said 'act N6. 105 as to the establishment and maintenance of a station at Snow Crossing and the 'Stopping of freight and passenger trains at said point could be complied with, with safety to life and property^ would be the cutting down qf said Red Cut Hill, so that trains could avoid the necessity of backing up, or of doubling, from that point to Taylor, as mentioned, which would cost not less than thirty or forty thousand dollars, and that the business of defendant is not of sufficient proportion to justify any such expenditure. So that the provisions of said act No. 105 and the enforcement'of same and the attempted enforcement of same are unreasonable and arbitrary and repugnant to section 1 of the 14th amendment to the Constitution of the United States and of section 8 pf art. 2 of the Constitution of the State of Arkansas, in this, that the effect of such enforcement would be to deprive the defendant of its property without just compensation and without due process of law, and would be to deny to it the equal protection of the laws, and repugnant to and in violation of the interstate commerce clause of section 8, art. 1, of the Constitution of the United States, and repugnant -to and in violation of the statutes of the United States regulating -the carriage of the mails under section 10 of art. 1 of said Constitution of the United States. .That the statements as to the con ditions and surroundings and physical faots set forth in this plea were the conditions and surroundings and physical facts as to said. Snow Crossing at the date of the passage of said act No. 105 of 1905 and at the date of the finding of the indictment herein.”
After hearing the evidence adduced by the parties, the court found that the special act of the Legislature upon which the indictment was founded was a valid statute; and, the defendant admitting that it had failed to comply with the act, fined it (defendant) $25, and rendered judgment against it for that amount. To reverse this judgment the defendant prosecutes an appeal to this court.
The Attorney General, in behalf of the State, confesses that the court erred in holding that the statute in question is valid.
The undisputed evidence adduced in the trial fully sustains the statement of facts in the special plea of the defendant, which shows that there was no public necessity for -a station at Snow Crossing on defendant’s line of railway, and that the requirement that such a station should be constructed and maintained is unnecessary, unreasonable and arbitrary, and, if executed, would cause the defendant to incur large expense without any corresponding benefit to it or the public. The result is it should not be enforced, and the confession of error of the Attorney General should be sustained.
Judgment reversed and cause remanded with directions to the court to dismiss the indictment. | [
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Hart, J.
Joe Walker was indicted by the grand jury of Monroe County for the crime of murder in the first degree. He was tried before a jury, and found guilty of murder in the second degree, his punishment being assessed at a term of 17 years in the State penitentiary. Fie has duly prosecuted an appeal to this court.
On the 20th day of April, 1909, the defendant, Joe Walker, shot and killed Tom Walker in Monroe County, Arkansas. The weapon used was a shotgun, loaded with No. 2 buckshot. About a week before the killing occurred, the defendant had some hard words with his wife in regard to his correcting her son, Oliver Stephens. On account of their trouble about her boy, who was ten years old, the defendant’s wife moved away from his house. .The deceased and Joel Stephens at her request assisted her in moving. On the morning of the killing, the defendant went to the place in the neighborhood where his wife had removed to visit her. When he went in, he heard Tom Walker say to her that she need not be afraid of anybody. He spoke to them both. Tom Walker then went out on the fence, and sat there awhile. He then stepped back and sat down on a log in front of the house. While in the house he was told that Tom Walker was going to kill -him. The defendant stayed in the house about one and one-half hours. The facts in regard to the killing as testified to by the defendant are as follows :
“I picked up my gun, told the chaps goodbye, kissed her and the chaps, too: told her I wanted her to come back home; walked out of the house on the steps; turned short off to go just like I come; didn’t want any trouble with Tom or any one else. Tom said, ‘Come here, Joe; I want to see you a minute.' I said, ‘All right.' Of course I didn’t know but what he wanted to apologize to me for the way he had treated me; started on out there; started to set down on the log with him, and he said, ‘You needn’t bring your God d — n gun here, you God d — n son of a bitch.’ He got up; probably he made a step or so coming toward me with his knife in his hand. ‘You God d — n son of a bitch, I ain’t afraid of you.’ I just put my gun up that way and fired; didn’t put it to my shoulder. When I fired, he fell back over the log, turned on his left side. I looked at him; didn’t know where it hit him; thought he was going to get up. He turned over. I went back the way I come. Went to where Bob Connell was in the field; told him what had occurred; didn’t go home at all. Then went to the sheriff and surrendered.”
Defendant further testified that Tom Walker was about 10 feet away when he was shot. That he raised up off the log, made one step forward in a stooping position, and then the gun was fired and blew him back over the log.
The defendant’s stepson, Oliver Stephens, was the only other person who saw the killing. He was a witness for the State, and detailed the circumstances leading up to the killing substantially the same as the defendant. He testified that Tom Walker was sitting on the log whittling when he was shot, and then fell over the log backwards. '
Counsel for defendant first assigns as error the refusal of the court to grant their motion for a continuance. It is well settled that continuances are largely -in the discretion of the court, and that discretion will not be controlled unless there is manifest abuse of it. Rucker v. State, 77 Ark. 23; Puckett v. State, 71 Ark. 62, and cases cited.
The motion for a continuance in this case sets up that the killing occurred on the 24th day of April, 1909; that the defendant immediately surrendered himself into custody, and was placed in jail, where he remained until the date of trial; that the circuit court convened on the 24th day of April, 1909; that he was indicted for murder in the first degree, and on the 12th day of May, 1909, the case was set for trial on May 26, 1909; that since the killing the defendant has been confined in jail, and has been sick most of the time; that during a part of the time one of his attorneys has been sick, and the others are occupied with business engagements made prior to their employment in this case; that on this account proper preparation for the defense could not be made.
Testimony was introduced and heard by the court in support of his motion, and by the State to controvert the testimony in regard to defendant’s sickness. It was not shown in what manner defendant was not able to prepare his defense. It is not shown that he failed to procure or name to his counsel any witness whose testimony was material to the defense. Only one eyewitness saw the killing, and he testified at the trial. The defendant testified in his own behalf, and admitted the killing. It is not shown that he was deprived of any evidence which might possibly have secured him an acquittal, and we can not say the court abused its discretion in not granting his motion for a continuance.
Counsel for defendant next insist that the court erred in not granting their motion for a change of venue. They contend that the court arbitrarily refused to grant the motion, upon proper application therefor, and that the refusal falls within the rule announced in Ward v. State, 68 Ark. 466, and other cases in this court, where it is held that it is error arbitrarily to refuse to grant a change of venue asked by the defendant upon the ground that the court knows that defendant can get a fair and impartial trial in the county.
No prejudice could have resulted to the defendant from the refusal of the court to grant his motion for a change of venue; .for, according to the undisputed testimony in the case, which is above abstracted, he was guilty of murder in the second degree. See Duncan v. State, 49 Ark. 550. As the judgment will be modified to the extent of giving him the lowest punishment therefor for the reason hereinafter given, no prejudice resulted to him. Jones v. State, 88 Ark. 579; Warren v. State, 88 Ark. 322; Hamby v. State, 72 Ark. 623.
Counsel for defendant complains that the court erred in not giving certain instructions asked by them on the subject of reasonable doubt and the appearance of .danger. It is not necessary to set out these instructions or to discuss them for these questions were fully covered by other instructions given by the . court.
Counsel for defendant also complains that Oliver Stephens was permitted to detail a conversation had between the deceased and the wife of the defendant in the absence of the defendant. An- examination of the record does not bear out their contention, but expressly shows that he was not permitted to detail the conversation, but only to state that on the morning of the killing the deceased came to where .his mother was staying to see her about a rent note.
The record shows that the jury found the defendant guilty of murder in the second degree, but that they decided his term of imprisonment by lot. The Attorney General confesses that this was error, but urges that this did not affect the finding of the jury that the defendant was guilty of murder in the second degree, and furnishes no reason why the verdict in that respect should be set aside. The Attorney General asks that the precedent made in the case of Williams v. State, 66 Ark. 264, a precisely similar case, be followed, and that the sentence be remitted to 5 years, the lowest punishment for murder in the second degree. Because the defendant might have been prejudiced by this method of arriving at the term of imprisonment, this will be done.
It is therefore ordered that the judgment be modified, so as to allow the sentence to stand for 5 years’ imprisonment only, and that the judgment so modified be affirmed. | [
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Frauenthae, J.
The defendants, George W. Harper and C. P. Wilson, were convicted of the offense of selling ardent liquors to a minor in the Fort Smith District of Sebastian County; and they have taken an appeal from that conviction ■to this court.
The evidence tended to establish the following facts: The defendants are licensed wholesale and retail liquor dealers, doing business in the city of Fort Smith, Arkansas. Christopher Russell is a minor about 15 years old residing at Warner in the State of Oklahoma, a station on the Midland Valley Railway 85 miles west of Fort Smith. On September 17, 1908, Christopher Russell, seeing a circular advertisement of defendants, sent to defendants a letter, in which he made an order for one gallon of whisky. The letter is as follows:
“Warner, Okla., September 17, 1908. ■
“Harper and Wilson.
“Enclosed you will find $3.00 for which please send me one (1) gallon of rock and rye whisky. I want 8 shorts. Be sure and send on the evening train today. Your customer,
“Christy Russell,
“Warner, Okla.
“Don’t fail to send on evening train.”
The three dollars sent in the letter was a sufficient amount to pay for the whisky and the charges for carriage from Fort Smith to Warner. The defendants did not know Christopher Russell, and did not know that he was a minor, but they accepted the order, and on September 18, 1908, they delivered to the Midland Valley Railway, a common carrier, at Fort Smith, Ark., a gallon of whisky, duly addressed to Christopher Russell at Warner, Oklahoma; and at their request the carrier executed a bill of lading for the whisky in which Christopher Russell was named as consignee. The whisky was shipped by freight train, and the defendants paid the freight. It appears that there is a passenger train leaving Fort Smith on this railroad in the afternoon, and which arrives at Warner about 7 o’clock p. m., and that express packages are carried on this train, but ordinarily no freight. Christopher Russell got the whisky at the depot at Warner.
It is contended by defendants that they cannot be convicted of this offense of selling intoxicating liquors to a minor, for the reason that they did not know that Christopher Russell was a minor; that on this account they had no criminal intent, and therefore could not be guilty of a criminal offense.
The statute under which the defendants were convicted provides that “any person who shall sell or give away, either for himself or another, or be interested in the sale or giving away of, any ardent, vinous, malt or fermented liquors. * * * * to any minor,” shall be guilty of a misdemeanor. Kirby’s Digest, sec. 1943. The words “knowingly or wilfully” or words of like import do not appear in this statute. The offense is complete when the sale is made to a minor, and the guilty intent is not an essential ingredient of the offense. There are some courts that hold that in prosecutions of this nature the absolute good faith of the seller and his ignorance of the minority of the buyer is a good defense. .But the principle adopted by this court and enunciated by Chief Justice English is' that vendors of intoxicating liquors are bound to “determine for themselves at their peril whether or not the purchaser is a minor; for, if they sell to one who is a minor, they are criminally liable, notwithstanding they are actually ignorant of the fact and honestly believed the person is of full age.” Redmond v. State, 36 Ark. 58; Black on Intoxicating Eiquors, § 418.
In the opinion delivered by Chief Justice English some of the_ reasons are given for that ruling and that determination of the effect of this statute. Those reasons appear to us manifest and sound; and the result of such ruling is to effect a proper enforcement of a public policy -announced by this statute against the selling or giving away of intoxicating liquors to a minor.
This decision has been followed by this court in a number of cases, and we can see no good or wholesome reason for changing it. Crampton v. State, 37 Ark. 108; Edgar v. State, 37 Ark. 219; Pounders v. State, 37 Ark. 399.
It is urged that, inasmuch as the common carrier was the agent of the minor and the liquor was purchased through such agent, in such event the defendants would not be guilty if they did not know or have any reasonable grounds of knowing that they were selling to a minor. And they cite Gillan v. State, 47 Ark. 555, to sustain that contention. But in that case the vendor sold directly to a negro, and made no contract with the minor. It subsequently developed that the minor had sent the negro to purchase the whisky for him. But there was no actual agreement on the part of the vendor to sell to the party who was the minor; and, as far as the vendor was concerned, the sale was made by him to the negro. In this case the defendants actually sold and intended to sell the liquor to Chrictopher Russell, the minor, and they simply were ignorant at the time of the fact that he was a minor.
It is contended that the sale in this case did not take place at Fort Smith but at Warner, Oklahoma; that this is true because the delivery of the whisky was made to Russell at Warner and not at Fort Smith. The sale occurred at the place where the contract and delivery were actually made. The contract of sale, like all other contracts, consists of an agreement between the parties and in addition thereto a delivery of the chattel. In this case the minor sent a letter to the defendants making an offer to buy the liquor, and .this letter was received by the defendants at Fort Smith, and at that place the offer was accepted by them. When .they accepted the offer, the contract was entered into, and the place of the agreement was therefore at Fort Smith. The defendants thereupon at Fort Smith appropriated and segregated from their stock the gallon of whisky, and delivered same to a common carrier at Fort Smith duly addressed to the minor, and went further and obtained a bill of lading for the whisky from the carrier for the minor, in which the minor was named as the consignee. Now, it is uniformly held that the delivery of goods to a common carrier, when made in pursuance of an order to ship, is in effect a delivery to the .consignee; and more especially is this true when the title to the shipment, as evidenced by the bill of lading, is made in the name of the consignee. State v. Carl & Tobey, 43 Ark. 353; Burton v. Baird, 44 Ark. 556; Berger v. State, 50 Ark. 20; Gottlieb v. Rinaldo, 78 Ark. 123; Templeton v. Equitable Mfg. Co., 79 Ark. 456; 1 Mechem on Sales, § 736, 739; Tiedeman on Sales, § 95.
T.he buyer in the first instance may designate the particular carrier by whom the goods are to be transported; but in event the contract of purchase is silent as to the particular carrier ■then a delivery by the vendor to a common carrier in the usual and ordinary course of business transfers the property to the vendee. Templeton v. Equitable Mfg. Co., 79 Ark. 456.
It is urged that the buyer in this case by said letter directed that the whisky be sent by an express company, and not by the Midland Valley Railway. But this does not follow from the terms of the letter. The Midland Valley Railway, so far as the evidence shows, was the only common carrier of goods from Fort Smith to Warner; and, even if the request in the letter to send on evening train could be considered to be a direction to send by express, there is no evidence that the railway company did not itself carry express packages on its trains, or that there was a separate and distinct carrier that transported goods on the evening train. But we are of the opinion that the request in the letter that the whisky be sent on the evening train of the same day was only made and intended by the buyer for the purpose of obtaining the whisky as speedily as possible, and was not made as a designation of a particular carrier to transport the goods.
The defendants by their actions showed that they understood it in that way, for they proceeded in the ordinary and usual course of their business and delivered the whisky to the Midland Valley Railway within a reasonable time after receiving the order. And this is what in fact and in law the request in the letter amounted to. 24 Am. & Eng. Ency. Raw, (2nd Ed.) 1075.
In this case the sellers accepted the order in Fort Smith, and at that place received the money-and delivered the goods to a common carrier, whom they selected in good faith and in the ordinary course of business, and not contrary to any direction made by the buyer. They not only delivered the goods to the carrier without any qualifications or restrictions, but in the bill of lading had the carrier name the buyer as the consignee. The delivery thus became complete, and the title to the whisky thereupon passed to the minor, and that took place at Tort Smith; and therefore the sale was completed at that place.
The rulings of the court in giving and refusing instructions were based upon the law as above announced. We find no error in these rulings of the court. The evidence sustains the verdict. The judgment is accordingly affirmed. | [
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Per Curiam.
Bill D. Hendrickson, by his attorney, has filed a motion for a rule on the clerk.
His attorney, Meredith Wineland, admits by motion and brief that the record was tendered late due to a mistake on her part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Per Curiam.
Sheldon Paul Mangiapane, the appellant in this case, moves for permission to file a belated appeal pursuant to Ark. R. Crim. P. 36.9. In support of his motion he shows this court that he filed his notice of appeal at 8:37 a.m. on June 22,1992, and judgment was not entered until eight minutes later at 8:45 a.m. on that same date. The Court of Appeals dismissed the appeal on July 7, 1993, for the reason that the notice of appeal was prematurely filed, and, accordingly, the appeal was not properly lodged. Mangiapane v. State, 43 Ark. App. 19, 858 S.W.2d 128 (1993). The Court of Appeals then denied rehearing on August 25, 1993. This motion for belated appeal was filed on September 1, 1993.
We will treat this motion as a petition for review of the Court of Appeals decision pursuant to Ark. Sup. Ct. R. 2-4 as well as a motion for belated appeal. At the time the appellant filed his notice of appeal on June 22,1992, State v. Joshua, 307 Ark. 79, 818 S.W.2d 249 (1991) was still good law. Under Joshua, we accepted a notice of appeal that was filed minutes before entry of judgment as timely filed. It was only some weeks later on July 13, 1993, that we overruled Joshua and held that notices of appeal in criminal and civil cases, in order to be effective and timely, must be filed subsequent to entry of judgment. Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992). Because of the sweeping impact of the Kelly decision, we further decided to grant belated appeals in appropriate circumstances where the judgment involved was entered prior to July 1,1993. See Tucker v. State, 311 Ark. 446, 844 S.W.2d 335 (1993) (per curiam); In Re Belated Criminal Appeals, 313 Ark. 729, 856 S.W.2d 9 (1993) (per curiam).
As this filing of the notice of appeal and entry of judgment occurred before Kelly v. Kelly, supra and at a time when the Joshua decision had not been overruled, the Court of Appeals improvidently dismissed this appeal. We, therefore, reverse that decision.
The motion for belated appeal is granted. The Clerk of the Supreme Court is directed to reinstate the appeal for a determination on the merits. | [
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Steele Hays, Justice.
This case primarily concerns a conviction under our continuing criminal enterprise statute, (CCE), Ark. Code Ann. § 5-64-414 (1987), a part of the Uniform Controlled Substances Act, Ark. Code Ann. §§ 5-64-101 through 5-64-1005 (1987). Five points are raised on appeal.
As a result of undercover work by the police, Calvin and Richard Leavy, appellants, were charged with violations of the Controlled Substances Act. Richard Leavy was found guilty of five drug offenses and sentenced to nineteen years. Calvin Leavy was found guilty of four charges: CCE, public servant bribery, delivery of cocaine, and use of a communication facility in furtherance of a drug felony. On those charges Calvin received respective sentences of life, six years, twenty-five years and ten years.
The first argument is the only point in common: both appellants contend the trial court erred in allowing the jury to use transcriptions of tape recordings while the tapes were being played as evidence during the trial.
A detective from the Little Rock Police Department, Mark Ross, pretending to be receptive to bribery, had several conversations with Calvin about bribes Calvin would pay Ross for warning him about impending police surveillance and raids. Ross was wired during these conversations and the state introduced the tapes and their transcriptions at trial.
Detective Ross testified the recordings were transcribed promptly after the tapes were made and were an accurate reproduction of the tapes. He stated that sometimes background noise made transcription difficult and when words were inaudible the secretaries would type “inaudible.” The court overruled appellants’ objection and allowed the jury to use the transcriptions to follow the taped conversations, reminding the jury that the transcriptions were not evidence but merely an aid, and if there were any discrepancies between the tape and the transcription, the tape would govern.
The use of transcriptions in this context has been raised before and the rule is settled. If the transcript of a tape is essentially accurate, it is admissible if it would otherwise be necessary to play the tape several times for the jurors. Harvey v. State, 292 Ark. 267, 729 S.W.2d 406 (1987). Detective Ross so testified. The decision is discretionary with the trial court, Id, and we find no abuse of discretion. Appellants have pointed neither to inaccuracies nor prejudice, and we do not reverse absent a showing of prejudice.
The remaining points relate only to Calvin Leavy. He argues the trial court erred in upholding § 5-64-414 (1987) against his contention that the statute was void for vagueness. Appellant was convicted under Arkansas’s CCE statute, § 5-64-414, which provides:
Continuing criminal enterprise.
(a) A person commits the offense of engaging in a continuing criminal enterprise if he:
(1) Violates any provision of subchapters 1 through 6 of this chapter which is a felony, except § 5-64-401 (c); and
(2) The violation is a part of a continuing series of two (2) or more felony offenses of subchapters 1 through 6 of this chapter, except § 5-64-401 (c):
(A) which are undertaken by that person in concert with five (5) or more other persons with respect to whom that person occupies a position of organizer, a supervisory position, or any other position of management; and
(B) From which that person obtained substantial income or resources.
Calvin Leavy submits that three elements of the statute are unconstitutionally vague:
1) “Continuing series of two or more felony offenses.”
2) “A position of organizer, a supervisory position, or any other position of management.”
3)“Substantial income or resources.”
This statute adopts essentially the same language of the federal “kingpin” statute, 21 USC § 848 (Supp. 1992), as to the provisions under consideration here. This argument has not been decided by the United States Supreme Court, but there is agreement among those circuits that have considered the issue, upholding the statute against attacks for vagueness. See United States v. Valenzuela, 596 F.2d 1361 (9th Cir. 1979) (and cases cited therein); United States v. Kirk, 534 F.2d 1262 (8th Cir. 1976) (and cases cited therein). Both Valenzuela, supra, and Kirk, supra, state that due process requirements of definiteness are violated by a criminal statute that fails to provide adequate notice to a person of ordinary intelligence that his or her contemplated conduct is unlawful. To the same effect see State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992).
Calvin maintains that “continuing series of two or more felony offenses” does not tell us if the offense requires any “breaks in the activities” and does not provide a time frame within which the offenses must have occurred. We believe the language “two or more felony offenses” is sufficiently clear in itself and whether interruptions occur in criminal conduct pertinent to the act is essentially irrelevant. As to a “time frame,” this point has not been addressed elsewhere but the wording suggests the correlation between the offenses must be such that they can reasonably be considered part of the same enterprise. The two felonies in the case against Calvin Leavy occurred within seven months of each other and thus clearly fall within a reasonable time frame. Nor does appellant argue otherwise. See Burrow v. State, 282 Ark. 479, 669 S.W.2d 441 (1984); United States v. Kirk, supra.
As to the argument that “organizer” and “substantial income” are impermissibly vague, these terms were specifically considered in Valenzuela, supra. The court concluded:
Similarly, the words encompassed within the phrase “organizer, a supervisory position, or any other position of management” enjoy a wide currency in the business community and are commonly understood by members of the general public. In enacting § 848, Congress was clearly concerned with large-scale profit-making enterprises engaged in the illegal importation, manufacture and distribution of controlled substances. The language under consideration was clearly chosen to distinguish minor enterprise “employees” from those who conceive and coordinate enterprise activities.
Finally, we see no fatal vagueness problem in the requirement that a criminal enterprise defendant must have received “substantial income or resources” from his or her activity. The criminal enterprise statute would have been valid even if Congress had omitted such a financial limitation. We see no reason to strike down the statute because Congress has chosen to provide some measure of protection to petty criminal enterprise defendants in this regard.
See also, Hughey v. State, 310 Ark. 721, 840 S.W.2d 721 (1992) (discussing the consensus of other jurisdictions interpreting “organizer”). We agree with the reasoning in Valenzuela, supra, and hold the challenged provisions of our statute are not unconstitutionally vague. United States v. Kirk, supra.
Next, Calvin argues the trial court erred in finding the evidence sufficient to sustain the verdict for the CCE offense. Proper motions for a directed verdict challenging the sufficiency of the evidence were made by appellant at the end of the state’s case and again at the end of the trial. Those motions were denied on both occasions. On appeal, appellant argues there is insufficient evidence for two elements of the crime: 1) proof of leadership and 2) proof of substantial income.
We summarized the management proviso of the CCE statute in Hughey v. State, supra:
The government need not establish that the defendant managed five people at once, that the five acted in concert with each other, that the defendant exercised the same kind of control over each of the five, or even that the defendant had personal contact with each of the five. In essence the management element is established by demonstrating that the defendant exerted some type of influence over another individual as exemplified by that individual’s compliance with the defendant’s directions or instruction. (Emphasis in original.)
On appeal, appellant does not challenge proof of the number of individuals under appellant’s control, only that there was no proof appellant functioned as a manager. We disagree. While there were discrepancies in the testimony, there was nevertheless the following: 1) Testimony by Detective Ross that appellant had made reference to the business as being “his” business; 2) Willie Peoples testified that he and other dealers turned over the money from drug sales to appellant; and 3) Peoples also testified that appellant was the one in their group responsible for keeping track of the drugs being marketed. This evidence is sufficient to show appellant exerted some type of influence over other individuals.
As to whether appellant obtained “substantial income,” we need only note that Peoples testified that on an average week he took in between $36,000 and $54,000. This was for only one of appellant’s several dealers, and only an average week. This constitutes “substantial income.” See Hughey v. State, supra.
As his next point appellant argues the trial court erred in admitting into evidence a comment he had made to Detective Ross. During the state’s case, Ross testified as follows:
It was at this time that Detective Cox and I were approaching a card table that had dominoes on it. Calvin Leavy was one of four people sitting at the card table. He was bouncing a small infant, I would guess eight months, six months old, on his knee.
At this time, Calvin Leavy made the statement to me that when this child grows up, that he was going to have the small child out there selling drugs for him. That he couldn’t wait for the baby to grow up because he was going to have him out there selling drugs for him.
An element of continuing criminal enterprise is whether the defendant is a leader, organizer or manager of the drug enterprise. Thus, at issue was whether Calvin held a managerial role. His avowed intent to put his child to work for him would be relevant as to whether Calvin viewed himself as an organizer and entrepreneur in the drug business. Obviously there is some prejudicial effect from appellant’s statement, but the balancing of probative value against prejudice is left to the sound discretion of the trial judge and will not be reversed absent a manifest abuse )f that discretion. Haynes v. State, 309 Ark. 583, 832 S.W.2d 479 1992). There was no abuse under the circumstances.
Finally, Calvin argues the trial court erred in failing to set iside two of the charges on grounds that sentencing violated the principles of double jeopardy.
In order to prove the CCE offense under § 5-64-414, one of the necessary elements is that the defendant committed “two or more felony offenses” which are part of the Controlled Substances Act. Calvin Leavy was charged with delivery of cocaine, § 5-64-401 (e), and use of a communication facility in causing or facilitating the commission of any drug felony under the act, § 5-64-417. Calvin was convicted on the CCE offense for which the state had used these two offenses for the “two or more felony offenses” element of the crime. He was also convicted separately on the cocaine and communication facility charges. Appellant argues that conviction of both the CCE and the other two drug offenses violates the double jeopardy clause. We decline to address the argument because there was no objection before the trial court on the ground now argued. When the sentencing hearing was held, the trial court first read the four convictions and sentences as found by the jury. The court then asked if appellant would like to say anything before a decision was made, and the defense replied:
We would argue that there is no law on this subject so we can’t cite you anything to help in the decision. But in order to convict on the continuing criminal enterprise, you have to find the defendant guilty of the other acts that he’s been found guilty of.
That being true, it seems that it would be improper to run the sentences any way but concurrent because the other offenses are so inherently a part of the continuing criminal enterprise.
The court ordered that of the four convictions, all were to run concurrently except the sentence of twenty-five years, which was to run consecutively. There was no more discussion and the hearing was adjourned.
The state argues, correctly we think, that a proper objection was not made. Counsel only requested concurrent sentences. There was no motion to set aside the convictions nor any argument affecting double jeopardy. A similar situation arose in Robinson v. State, 278 Ark. 516, 648 S. W.2d 444 (1983), where appellant only argued for concurrent sentences at trial but argued double jeopardy and lesser included offenses on appeal. We wrote:
A fair reading of the record reflects that counsel sought leniency in the sentence, not to prevent any conviction or sentence at all for one of the offenses charged. A timely and appropriate objection must be made to preserve an objection on appeal.
The same is true in this case and no proper objection was made below.
Affirmed.
Holt, C.J., not participating. | [
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Robert L. Brown, Justice.
This is a case involving the shooting of two men who were self-appointed security guards at a North Little Rock apartment building. Both men were shot in the back, and one was killed. The appellant, who was age 16 at the time of this offense, was convicted of one count of capital murder and one count of attempted capital murder. He was sentenced to life in prison without the possibility of parole for capital murder and thirty years imprisonment plus a fine of $15,000.00 for attempted capital murder.
The appellant filed a notice of appeal before the judgment was entered and has not filed a motion to file a belated appeal. He raises seven issues on appeal: whether the trial court erred by (1) not promptly ruling on his Batson motion; (2) not sensitizing or allowing the jury to be sensitized to the racial issue present in this case; (3) not granting his for-cause challenges; (4) not granting him more peremptory challenges; (5) allowing the State to question him about his right to remain silent; (6) not instructing the jury on lesser included offenses; and (7) conducting a trial that effectively denied him his rights to due process and to a fair trial.
We hold that we do have jurisdiction to hear this appeal, and we affirm.
The victims of the shooting, Richard Campbell and Thomas Bryan, had apartments in a building located at 615 Maple Street in North Little Rock. After talking to the owner of the building about a neighborhood watch program, Campbell took it upon himself to become a security guard for the area. He bought a security guard uniform, a night stick, whistle, mace, and a flashlight.
On the evening of July 10,1991, Campbell asked Bryan if he also wanted to become involved as a guard. Bryan agreed and pinned a security guard patch on his shirt. Bryan took a baseball bat with him when he went out to join Campbell on patrol. It was after 11:00 p.m., and several youngsters, including Franklin, were standing on the corner of 620 Maple Street. They began taunting Campbell and Bryan, asking them if they thought they were police officers. Bryan approached the group and got into a verbal altercation with an individual later identified as the appellant. Campbell came over to Bryan and suggested that they go inside and put the baseball bat away. A witness later testified that he heard the appellant then state “he was going to shoot some white people.” The two men had just walked through the front door and were entering the hallway to their apartments when a youngster later identified as Franklin ran up behind them and fired at least four shots at them. Three shots hit Campbell in the back and one hit Bryan in the back. Campbell died shortly after arriving at the hospital. Bryan was treated at the hospital and released. Both victims were white. Franklin is black.
An information was filed charging the appellant with capital murder for the shooting death of Richard Campbell, and attempted capital murder for the shooting of Thomas Bryan. The trial began on April 20, 1992, and the death penalty was requested by the State. Franklin at this time was age 17. Before voir dire began, the appellant’s attorney asked the circuit court to sensitize the jury to the fact that Franklin was black and the victims were white. The court refused the request stating that it thought that the request was “racist.” The court went on to state that the appellant’s attorney could “sensitize” the jury but that the court was not going to do this.
Prospective juror Ms. Georgia Davis was asked on voir dire if she could consider imposing the death penalty to which she responded “I guess.” She was the fifth juror called and the first black juror. Subsequently, when asked if she could impose the death penalty on this defendant Ms. Davis responded, “I don’t know” and “It would be hard.” When asked if she could put her name on a verdict form that imposed the death sentence Ms. Davis stated, “I’d have to think about it.” Ms. Davis said she was able to sign the verdict form in a theft case but that it was “heavy on my heart.”
Following this voir dire, the State excused Ms. Davis by peremptory challenge. The defense made a Batson motion and argued that Ms. Davis had not expressed any more caution with regard to whether she could impose the death penalty than the other potential jurors who had been accepted by the State had. The circuit court took the motion under advisement. The defense did not object to the court’s action at this time. After noon on the first day of trial, the court still had not ruled on the Batson motion and instructed Ms. Davis to return to court the next day. Again, there was no objection by the defense.
Prospective juror Melva Hicks said on voir dire that she believed in an “eye for an eye” but that she could consider both life without parole and the death penalty. Ms. Hicks stated that she would tend to think a defendant was guilty if he chose not to testify. The defense made a motion for cause on the basis that Ms. Hicks was predisposed to the death penalty. The court denied the motion. The defense then made a motion for cause on the basis that Ms. Hicks would tend to think the defendant is guilty if he did not testify. The court granted this motion.
Prospective juror Paul Daniel, the pastor at the First Baptist Church in North Little Rock, stated on voir dire that it would be difficult but that he could consider the death penalty. Daniel indicated that he would have a problem imposing the law if it conflicted with his religious beliefs but that he would apply the law he was instructed. The defense moved the court to strike Daniel for cause, contending that he indicated that he would not abandon his religious beliefs if they conflicted with the law. The State argued that the pastor had expressed just the opposite. The court denied the motion. The defense used one of its peremptory strikes to remove Daniel.
The second day of trial, the defense asked the court if it would make a ruling on the Batson motion relating to Ms. Davis. The defense argued that the delay had forced the appellant to accept at least one juror he did not want and to use up one peremptory challenge. The court countered that the defense wanted Ms. Davis and therefore that it did not think the delay was a disadvantage. The court added that it had not reached a decision on the Batson motion.
The appellant asked the court if it would grant him two more peremptory strikes. The court responded that the request was premature. Later during voir dire, Franklin renewed his request for two additional peremptory strikes. The State objected stating that there was no authority for granting additional strikes. The circuit court denied the request.
Potential juror Nellie Hindman stated during voir dire that she could consider the death penalty or life without parole. Ms. Hindman was the junior high school teacher of one of the deputy prosecutors in the case. She stated that she had not seen him since junior high school, and that her prior contact with the deputy prosecutor would not affect her ability to be a disinterested juror in this case. Franklin, who had exhausted his peremptory strikes, moved to strike her for cause and stated that if he had had a peremptory challenge left, he would have used it. He asked again for additional peremptory challenges. The court denied the motion for cause and the motion for more challenges. At this time, Franklin inquired once more about the status of his Batson motion relating to Ms. Davis and was again told that it was under consideration.
Following voir dire of a potential juror, Wendell Brown, the appellant stated that he would have struck Brown if he had had a peremptory challenge left. The defense did not challenge Brown for cause. Franklin again requested two additional peremptory strikes, and the request was again denied.
The circuit court asked for arguments on the Batson motion involving Ms. Davis. The State argued that a prima facie case had not been established. Even assuming that it had, the State argued that the challenge was racially neutral in that it was based on the fact that Ms. Davis stated that she had real hesitation about the death penalty and that the State had struck white jurors for expressing less hesitation than Ms. Davis expressed. The circuit court ruled that the defense had not made a prima facie case and that, in any event, the challenge was not racially motivated.
The trial proceeded. According to Franklin, the jury was all white, and the State does not dispute this. During Franklin’s case, he testified on cross examination about his experience at the North Little Rock Police Station:
PROSECUTOR: They wouldn’t let you talk?
FRANKLIN: No.
PROSECUTOR: They didn’t want to talk to you?
Defense counsel objected and sought a mistrial, arguing that this line of questioning was a comment on the appellant’s decision not to give the police a statement. The court overruled the objection, stating that the comment was that the police did not want to talk to Franklin, not that Franklin had refused to give a statement.
The jury was instructed on capital murder and first degree murder. The defense sought instructions on the lesser offenses of second degree murder and manslaughter. The State objected on the basis that the appellant was claiming that he did not do it and the instructions were, therefore, not apposite. The court refused to give the instructions. Guilt was determined and after the penalty phase, Franklin was sentenced to life without parole plus thirty years in prison and a fine of $15,000.
I. GENERAL COMMENT
This is a capital murder case where the appellant received a sentence of life without parole. The record before us is over 1,700 pages. The appellant raises seven points for reversal, four of which concern voir dire. Yet, he abstracts only one page of voir dire colloquy. Indeed, his abstract of the trial totals only 17 pages.
The State has filed a 222 page supplemental abstract in an effort to salvage this appeal. We underscore the obvious which is that the State is the opposing party to the appellant. Had the State moved for compliance with Ark. Sup. Ct. R. 4-3(h), we would have granted the motion to direct compliance and sent the case back for abstracting. We have done so recently on two motions filed by the State. See State v. Wedger, CR 93-408 (granted September 13, 1993); State v. Early, CR 93-189 (granted September 13, 1993).
II. JURISDICTION
The State contests jurisdiction of this appeal in this court owing to a defective notice of appeal. The appellant filed his notice of appeal on April 24,1992. The judgment was not entered until April 27, 1992.
At the time of the filing of the notice and judgment in April 1992, the law on this point had been decided in State v. Joshua, 307 Ark. 79, 818 S.W.2d 249 (1991). There, we held that a notice of appeal filed prior to entry of judgment was to be treated as if filed when the judgment was entered. In Joshua, the notice and judgment were filed on the same date, but we adduced additional authority in that case that the same rule applies when the notice is filed some days earlier. Edmonds v. State, 282 Ark. 79, 665 S.W.2d 882 (1984); Caskey v. Pickett, 272 Ark. 521, 615 S.W.2d 359 (1981). It was not until July 13,1992, that we overruled the Joshua decision, thereby requiring the notice to follow entry of judgment. See Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992).
Accordingly, Franklin’s notice of appeal was timely under the pertinent caselaw at that time. No motion for belated appeal by the appellant was required by this court in State v. Joshua, supra; Edmonds v. State, supra; Caskey v. State, supra, in order to reach the jurisdictional question. In Joshua, for example, the appellee simply raised the issue in the brief. Nor is a belated appeal motion required under the facts of this case. Only after the repeal of State v. Joshua, supra, on this point did a motion for belated appeal become essential. Jurisdiction appropriately lies in this court.
III. BATSON MOTION
Franklin first argues that the circuit court erred in not ruling immediately on his motion pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), and that the delay evidences the fact that the court did not meaningfully consider his motion. The appellant also claims that the delay in ruling was prejudicial to him because it prevented him from making informed choices during the remainder of voir dire, since he did not know whether Ms. Davis had been successfully challenged. Finally, he argues that he was forced to accept juror Nellie Flindman because he was out of peremptory strikes and suggests that the delay in ruling on the Batson motion caused him to exhaust his peremptory challenges prematurely.
We first consider the State’s argument that Franklin was late in objecting to the circuit court’s decision to take the Batson motion under advisement. This court has repeatedly held that a defendant in a criminal case must make an objection to the trial court at the first opportunity. Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990), cert. denied, 111 S. Ct. 757 (1991); see also Pacee v. State, 306 Ark. 563, 816 S.W.2d 856 (1991). The objection which the State contends was late was not to a Batson motion per se but to the delay in ruling on the motion until the following day. We cannot say that Franklin’s objection was untimely. Once he determined that the delay was impinging upon his voir dire strategy, the objection was lodged. This was appropriate, and we will address the merits of this issue.
There are two facets to Franklin’s Batson argument: the first is that no racially neutral reason existed for striking Ms. Davis and, secondly, the delay in ruling prejudiced him. The appellant’s argument fails on both counts.
This court has recently examined the law applicable to Batson, challenges and the appropriate procedure to be followed. First, the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. In the event the defendant makes a prima facie case, the State has the burden of showing that the challenge was not based upon race. Only if the defendant makes a prima facie case and the State fails to give a racially neutral reason for the challenge is the court required to conduct a sensitive inquiry. Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993); Hollamon v. State, 312 Ark. 48, 846 S.W.2d 663 (1993); Walker v. State, 308 Ark. 498, 825 S.W.2d 822 (1992); Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990).
We disagree with the circuit court which concluded that Franklin failed to make a prima facie case. The first black juror called was challenged by the State in a case fraught with racial overtones. Moreover, by the time that the court ruled on the motion the jury apparently was all white. Under the totality of relevant facts, we conclude that a racially neutral explanation from the State was required. Here, the State satisfied that obligation. The State argued that Ms. Davis was struck because she was not certain that she would be able to consider the full range of punishment. This challenge is plainly not grounded in racial discrimination. Further support for this conclusion is the fact that the State also peremptorily challenged juror Ms. Mary Schlatterer, a white female, and four other white jurors who were as uncertain or less uncertain than Ms. Davis about assessing the death penalty against Franklin. Reluctance to assess a statutory punishment, irrespective of race, is a reasonable basis for a challenge. Williams v. State, 288 Ark. 444, 705 S.W.2d 888 (1986). The State satisfied its burden in this respect.
On the issue of the court’s delay in ruling on the Batson motion, we do not concur with the appellant that prejudice under these circumstances is presumed or even that there was'a reasonable possibility of prejudice resulting in this case. See Larimore v. State, 309 Ark. 414, 833 S.W.2d 358 (1992); Smith v. State, 307 Ark. 223, 818 S.W.2d 945 (1991). To be sure, Franklin did not know whether Ms. Davis would sit and had to employ a voir dire strategy premised on a denial of his motion. But this is precisely what the circuit court did — deny his motion. If the court had permitted Ms. Davis to sit and Franklin had exhausted his challenges unnecessarily on the theory that the court would not allow her to sit, we could see some merit in his contention. But this did not occur. While we agree that the circuit court should not have delayed its ruling, resulting prejudice was lacking. Any error was, therefore, harmless.
IV. RACIAL INQUIRY TO VENIRE
Franklin argues that this is a capital murder case with a black defendant and white victims. Because this was a racially sensitive case, the circuit court, according to the appellant, was required to inquire into racial bias on the part of the venire. He cites the Supreme Court case of Turner v. Murray, 476 U.S. 28 (1986) in support of this proposition.
In Turner, a black defendant received the death penalty in a Virginia state court for the murder of a jewelry store proprietor who was white. Defense counsel at trial submitted a list of proposed questions to the trial judge including a question about racial prejudice. The judge refused to ask the question relating to racial bias. The Virginia Supreme Court affirmed, and subsequently a Federal District Court in Virginia denied the defendant habeas corpus relief and the Fourth Circuit Court of Appeals affirmed. The United States Supreme Court reversed on the basis that a violent crime between the races was involved, and the defendant was charged with a capital crime. Because the jury was required to consider a capital sentence in a case involving race, questioning the venire on racial prejudice was constitutionally required upon request.
In a dissent in Turner, Justice Powell pointed out that Virginia law vested the trial judge with responsibility to conduct voir dire of prospective jurors. In this case, the trial judge permitted counsel to propose questions but denied an inquiry into racial prejudice. Those facts distinguish Turner from the case before us. In Arkansas, counsel are permitted to conduct voir dire examination of jurors and in this matter, though the circuit court refused to inquire into racial bias, it permitted counsel for Franklin to do so and he did. Franklin’s defense counsel posed questions to at least two prospective jurors about friendships with persons of another race, whether they believed that young blacks routinely engaged in criminal activity, whether young blacks intimidated members of the venire, whether race would be a factor in assessing punishment and so forth. In light of this, though the circuit court did not conduct the probe, we observe no violation of the constitutional protection afforded in Turner v. Murray, supra.
Franklin also contends on this point that his questioning was stifled by the circuit court. Though the court did urge defense counsel to move along with the questioning, the record does not bear out this assertion. In addition, Franklin lodged no objection to any perceived curtailment of his right to inquire, and the matter is not preserved for our review. Barnes v. State, 294 Ark. 369, 742 S.W.2d 925 (1988).
V. FOR CAUSE CHALLENGES
Franklin next contends that the circuit court erred in failing to strike Ms. Melva Hicks, Rev. Paul Daniel, and Ms. Nellie Hindman for cause. This argument* has no merit.
Initially, we have held that a claim of error relating to a challenge for cause is only preserved regarding jurors who actually sat on the jury after a challenge for cause was denied. See Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990), cert. denied, 497 U.S. 1011 (1990), citing Ross v. Oklahoma, 487 U.S. 81 (1988). Only one potential juror — Ms. Hindman — was seated after Franklin’s peremptory strikes were fully utilized and a challenge for cause was unsuccessful. We agree with the circuit court that Ms. Hindman’s answers did not render her unfit to serve on the jury. It is true that she had taught one of the deputy prosecutors in junior high school, but she had not seen him since that time, and she advised the court that it would have no bearing on her decision in this case.
In Arkansas, we presume people comprising the venire are unbiased and qualified to serve. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). The burden is on the contestant to prove otherwise, and we will not disturb a circuit court’s ruling absent an abuse of discretion. Id; Butler v. State, 303 Ark. 380, 797 S.W.2d 438 (1990). We cannot say, based on what has been presented to us, that that discretion was abused in this instance.
VI. OTHER ARGUMENTS
Franklin’s remaining points are equally meritless. He argues that he was entitled to two peremptory challenges in addition to the twelve allotted him under Ark. Code Ann. § 16-33-305 (1987). This court has refused to expand the number of peremptory strikes assigned to a criminal defendant beyond twelve. See, e.g., Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989). Franklin cites no authority and presents no cogent reason why we should reverse our position on this issue. We will not reach the merits of an issue presented in such a deficient manner. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). We do note on this point that the circuit court did remove one juror, Homer Jordan, for cause toward the end of voir dire solely because Franklin had exhausted his peremptory challenges. The court stated:
And I don’t think he’s disqualified. But I think we’ve come down to the twelfth juror in this case and the Defense is out of strikes. And he has a predisposition and I think it would be a little bit unfair for the Defense to have to live with him. I’m not sure I would even make them use one of their challenges for him. I think he’s very honest with us. That’s what we’re back here for.
I’ll excuse him for cause, R.S.
Nor do we give credence to Franklin’s argument that police officers violated his right to remain silent by the prosecutor’s question: “They didn’t want to talk to you?” As the circuit court pointed out, the officers refused to talk to him, which had no bearing on whether Franklin would give a statement or not. There is no conceivable violation of constitutional protections such as those afforded by Doyle v. Ohio, 426 U.S. 610 (1976) under these circumstances.
The appellant also urges that lesser included instructions on second degree murder and manslaughter should have been given in addition to instructions on capital murder and first degree murder. His defense, however, is that he did not do it; not that he acted with less than purposeful intent. We agree that it makes no sense to instruct, at the defendant’s request, on knowing or reckless conduct when he contends that someone else committed the crime. Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993); Watson v. State, 308 Ark. 444, 825 S.W.2d 569 (1992); Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986). On this same point, Franklin argues for the first time on appeal that this rule favors a defendant who does not testify over one who does. This argument was not made to the circuit court. We will not address an argument which was not presented to the trial court for consideration. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993); Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990).
For his final point, Franklin asserts cumulative error by the circuit court. He cites a biased attitude and demeanor of the circuit court against him from the outset which resulted in “a dark cloud” being placed on his trial. While this court has recognized cumulative error (Dillon v. State, 311 Ark. 529, 843 S.W.2d 316 (1993)), defense counsel presents us with no specific examples of bias in his brief. Rather, he directs us obliquely to pages in the record.
The record in this case has been examined in accordance with Ark. Sup. Ct. R. 4-3(h) for any error prejudicial to Franklin since this is a case of life imprisonment without parole. Sharp exchanges were found between the circuit court and defense counsel during voir dire, most of which occurred outside of the presence of the jury. We have found some examples of sarcasm, snide remarks, and discourtesy on the part of the trial judge, as well as defense counsel. No matter how fevered a jury trial becomes, we cannot condone such conduct and do not do so in this case. Franklin, however, failed to object to this conduct or make a record or ask the judge to recuse. Absent an objection below the issue of bias may not be raised on appeal. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). Furthermore, we cannot say that the cumulative conduct by the circuit court denied the appellant a fair trial or rises to the level of reversible error. Nor do we find other error requiring reversal.
Affirmed.
Franklin successfully challenged Ms. Hicks for cause. | [
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Jack Holt, Jr., Chief Justice.
Two points for reversal are raised in this appeal from Andre Haynes’s conviction on charges of burglary, aggravated robbery, theft of property, and attempted rape. Despite the appellant’s attorney’s inadequate abstracting of the record, the State’s supplement is sufficient for us to consider the merits of the case. Finding no error in the proceedings below, we affirm the trial court’s judgment.
In April 1992, the prosecuting attorney for the Tenth Judicial Circuit filed an information charging appellant Haynes with one count each of burglary, aggravated robbery, theft of property, and criminal attempt to commit rape. The State alleged that on March 23,1992, Haynes committed those felonies against the home, property, and person of Ms. Gladys Lawson of Monticello. In an amended information, filed in July 1992, the State asserted that the appellant was an habitual offender subject to sentence enhancement.
Haynes was represented by the public defender at trial and was found guilty on each count. He was sentenced to fifty years for the attempted rape, thirty years for the aggravated robbery, twenty years for the burglary, and ten years for the theft of property. The Drew County Circuit Court ordered the sentences to run consecutively, for a total of 110 years, assessed fines amounting to $40,000, and substituted appointed counsel for purposes of this appeal.
The attorney representing Haynes on appeal has failed to include in his abstract the affidavit for a search warrant and the search warrant despite his reliance on these documents in his first argument. Moreover, he has abstracted only the cross-examination of the victim and other witnesses for the State and only the direct examination of the appellant and other defense witnesses.
In short, the crucial documents necessary for an understanding of the appellant’s first argument were not abstracted, while the only testimony abstracted was that which could be construed as favorable to the appellant’s second argument, concerning Haynes’s identification. These egregious acts of omission and commission go far beyond mere oversight and constitute a gross violation of Rule 4-2(a)(6) of the Rules of the Supreme Court and Court of Appeals, which provides, in relevant part:
The appellant’s abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of only [emphasis in original] such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision. . . .
(Emphasis added.)
Because the State has, pursuant to Rule 4-2(b)(l), supplemented the abstract with the essential items of evidence and passages of testimony, we are able to address the issues raised by the appellant on their merits.
At the outset of his first argument for reversal, the appellant’s attorney states that “There is, unfortunately, nothing in the record resembling an affidavit in support of a search warrant, or the warrant.” How he reached this conclusion is difficult to fathom, since the affidavit, signed by Captain Charles Cater of the Monticello Police Department on March 23, 1992, and the search warrant, signed by Circuit Judge Samuel Bird on March 23,1992, both appear as State’s Exhibit 1 at page 84 of the transcript. The return, executed by Captain Cater on March 24, 1992, also appears as part of State’s Exhibit 1. (The appellant’s attorney did manage to locate the circuit judge’s finding of probable cause in the record.) These documents were introduced at a suppression hearing conducted on September 8,1992. It is, of course, well established that we have the authority to go to the record to affirm a trial court’s decision. See Mitchell v. State, 298 Ark. 536, 769 S.W.2d 18 (1989).
The appellant’s attorney also contends that “it does not appear of record” that the defense was furnished “a transcript of any relevant prior testimony in any other proceeding that may have been held in this case” as requested in a discovery motion. He asserted, further, that “Whether the testimony of officer Charles Cater, the affiant who testified before the magistrate in the probable cause proceedings[,] was recorded is not known.”
It seems, as the State suggests in its brief, that the appellant’s attorney failed to read the transcript of the suppression hearing, which occupies pages 68 through 83 of the transcript. A recording of the probable cause hearing was introduced, without objection, at the suppression hearing and was played for the court. During the direct examination of officer Charles Cater, a transcript of the tape was introduced, again without objection. Although that transcript does not appear in the record on appeal, we have stated on numerous occasions that it is the appellant’s burden to produce a record exhibiting prejudicial error. Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993); Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992).
As for the implication on the part of the appellant’s attorney concerning the alleged failure to provide defense counsel with a transcript of the probable cause hearing, the record reveals no objection on the appellant’s part to the asserted omission in discovery. The issue is not preserved for appeal. Towe v. State, 304 Ark. 239, 801 S.W.2d 42 (1991).
In any event, the probable cause transcript was introduced at the suppression hearing almost a month before the appellant’s trial. Because the appellant voiced no objection to the introduction of the transcript at that time, it is reasonable to assume that he was not only aware of its existence but had also had an opportunity to review it prior to its having been received in evidence. Therefore, no prejudice resulted. See Jones v. State, 308 Ark. 555, 826 S.W.2d 233 (1992). When a failure to comply with discovery procedure occurs, the trial court is not required to suppress evidence unless prejudice has resulted. Devasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992).
On the merits, it should be noted that the affidavit submitted by Captain Cater stated that the victim reported that at about 2:40 a.m. on March 23,1992, a man entered her home and robbed and raped her. Among other items, the affidavit refers to a set of fingerprints that were lifted from the door to the victim’s house and identified by the State Crime Laboratory as those of Andre Haynes.
When presented with an affidavit, the magistrate must make a practical, common sense determination whether there is probable (i.c., reasonable) cause for the issuance of a search warrant. Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987). Such compelling evidence as identified fingerprints offers ample support for the finding of probable cause.
Haynes challenges the validity of the search warrant, as well, on the basis of hearsay, apparently in the belief that the victim’s account of the crime and description of her attacker, which was included in the affidavit, was lacking in reliability because it was hearsay. The appellant relies on Ark. R. Crim. P. 13.1, which provides, in relevant part:
If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained.
Yet the victim was not an informant, and her statement was therefore exempt from the reliability requirement of the rule. See Jackson v. State, 306 Ark. 70, 811 S.W.2d 299 (1991); Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983). As this court noted in Brown v. State, 259 Ark. 449, 455, 534 S.W.2d 213, 216 (1976), quoting United States v. Bell, 457 F.2d 1231, 1239 (5th Cir. 1972): “Eyewitnesses by definition are not passing along idle rumor, for they either have been the victims of the crime or have otherwise seen some portion of it.”
Only one statement in the affidavit was actually based on hearsay — the assertion that the State Crime Laboratory had identified the fingerprints found at the victim’s house as the appellant’s. The Crime Lab is a state entity, and its personnel are public employees. It is not necessary for an affiant applying for a search warrant to state reasons why a public official is a credible or reliable informant. Brown v. State, supra; French v. State, 256 Ark. 298, 506 S.W.2d 820 (1974).
For his second point for reversal, Haynes contends that the victim misidentified him as the man who raped and robbed her. The testimony supplied by the State in its supplemental abstract is adequate to dispose of the issue. The following exchange occurred in direct examination of the victim:
Q. Do you recognize the person?
A. That’s him at the table over there.
Q. Any doubt in your mind?
A. No doubt in my mind whatsoever.
Q. You stated that you had turned the light on in the living room, is that correct?
A. And I saw him distinctly when I turned the light on. I have a little night light in the kitchen that comes on at dark and goes off in the morning and that’s how I see to get around in my house without falling. But when I go up in the living room, there isn’t any light, so I switched on the light so I could see how to get to the front door and look out.
Q. And you don’t have any doubt that it is the Defendant?
A. I have no doubt. It was him.
Unequivocal testimony identifying the accused as the culprit is sufficient to sustain a conviction. Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992). It is for the jury to decide the credibility of identification testimony. Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992).
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Per Curiam.
We deny appellant’s request for stay of execution. Appellant offers several legal arguments which essentially are based upon his being presumptively mentally retarded. The issue of whether appellant is mentally retarded has previously been rejected by United States District Judge G. Thomas Eisele in Fairchild v. Lockhard, 744 F.Supp. 1461 (1989). Judge Eisele decided appellant voluntarily, knowingly and intelligently waived his Miranda rights before confessing his involvement in the robbery, rape and murder of Ms. Mason. In making this ruling he determined appellant was not retarded.
Judge Eisele made his rulings after appellant and the State of Arkansas presented a voluminous amount of evidence bearing on appellant’s mental history and evaluations offered through witnesses, including psychiatrists. His memorandum opinion setting out the underpinnings of his rulings covers seventy-eight pages. The Eighth Circuit reviewed Judge Eisele’s findings and affirmed them in a decision handed down on November 10, 1992. Fairchild v. Lockhard, 979 F.2d 636 (8th Cir. 1992), cert. denied 497 U.S. 1052 (1990). Accordingly, we hold appellant cannot reassert the issue of his mental retardation and is precluded from doing so under the doctrine of collateral estoppel. Ashe v. Swenson, Warden, 397 U.S. 436 (1970); National Farmer’s Union Standard Insurance v. Morgan, 966 F.2d 1250 (8th Cir. 1992); see generally Judgments, 50 C.J.S. § 754 (a), p. 267 (1947).
Appellant seeks relief based upon Act 420 of 1993 which bans the execution of a person who is mentally retarded only when a jury unanimously determines that the person was mentally retarded at the time of the murder. Based upon our analysis above, such Act simply does not apply here because appellant is not mentally retarded. We note the same definition of mental retardation contained in Act 420 was the definition used by Judge Eisele in reaching his decision pertaining to appellant’s mental state. In addition, because appellant emphasizes to some extent in his contention that his I.Q. was in the low 60’s in 1983, we further note that Judge Eisele specifically rejected appellant’s contention in this respect, and opined the best tests, administered under optimal circumstances, would yield an I.Q. for appellant somewhere between 75 and 87.
Motion for stay denied.
Hays and Newbern, JJ., dissent.
The fact that there has been a judicial determination relating to Barry Lee Fairchild’s allegation of mental retardation distinguishes this case from the Georgia case cited by petitioner-appellant, Fleming v. Zant, 259 Ga. 687, 386 S.E.2d 339 (1989). | [
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Robert L. Brown, Justice.
The claimants and appellants, Jimmy Lee Bowling and Gay Taylor Bowling, filed a claim against the estate of Delbert Allen Spears, deceased, but did so outside of the three-month period under the statute of nonclaim. The probate court denied the claim. The appellants appeal on the basis that they were denied a hearing to present their case. They further contend that they were creditors of the estate who could be reasonably ascertained, and as such, the applicable statute of limitations was two years. Alternatively, they urge that the statutes requiring actual notice to reasonably ascertainable creditors are unconstitutional on their face and as applied in this case. We affirm the probate court’s decision.
The decedent, Delbert Allen Spears, was a licensed real estate broker and a principal owner of Spears and Tisdale Realty Company. He was also an owner of S & T Homes, Inc., a Little Rock housing construction corporation that was used to build housing on property sold through Spears and Tisdale Realty.
On January 3,1989, the decedent and the appellants, Jimmy Lee Bowling and Gay Taylor Bowling, closed two real estate transactions. The decedent took title to the appellants’ land and house located at 8623 Duncan Drive in Little Rock in exchange for a lot owned by Spears and Tisdale Realty, also in Little Rock, and a new house to be constructed on the lot by S & T Homes. As part of the consideration for the land swap, the decedent assumed the outstanding balance owed on a note and mortgage on the Duncan Drive property. The decedent, as owner of the Duncan Drive property, continued to make note payments as they came due until May 30, 1990, when he conveyed the property by warranty deed to his brother, John Spears. Eight months later, on February 1, 1991, the decedent’s brother stopped making payments, and the Duncan Drive property went into default.
On May 20,1991, the appellants were notified and demand was made upon them for payment of the note on the Duncan Drive property. Only then were they apprised of the fact that the decedent had died prior to the default on September 21,1990, and that the Duncan Drive property had been conveyed to the decedent’s brother. Notice and demand were presented to the appellee, Skeet Lavonda Renee Spears, administratrix of the decedent’s estate, on June 18,1991. She took no steps to clear the default. As administratrix, she had published the requisite statutory notice in The Benton Courier, a Saline County newspaper, for two consecutive weeks beginning October 22,1990. The three-month statute of nonclaim established by Ark. Code Ann. § 28-50-101(a) (Supp. 1991) expired on January 22, 1991, which was prior to the default.
The Duncan Drive property went into foreclosure, and a deficiency judgment was entered against the appellants and in favor of the holder of the note and mortgage for the amount of $24,314.90. The appellants, in turn, made demand upon the decedent’s estate for payment of the deficiency judgment, but the estate refused payment. The appellants then filed a claim against the estate on June 23,1992, seeking damages in the amount of the deficiency with interest from October 15, 1991, together with exemplary damages for fraud, deceit, and misrepresentation on the part of the decedent.
On July 22, 1992, the estate responded to the claim filed against it, noting that the first inkling it had of a potential claim appeared in a letter from the appellants’ attorney dated June 18, 1991 — more than seven months after the first publication of notice to creditors. Prior to June 18,1992, the estate contends, the claim was neither known to it nor reasonably ascertainable. The burden of proof on the issue, according to the estate, was on the creditor claiming entitlement to actual notice. Denying the claim, the estate requested a hearing before the Saline County Probate Court for a determination of whether the appellants, as creditors, were known or reasonably ascertainable to the administratrix and therefore entitled to more than constructive notice.
On August 20,1992, it is disputed what occurred. The estate asserts that a hearing was held on the claim. The appellants argue that it was in fact a conference among the attorneys and the probate court. On September 29, 1992, before the entry of the order resulting from the August 20,1991 hearing, the appellants filed a motion requesting an evidentiary hearing on all facts still disputed by the estate and raising for the first time the constitutionality of the notice provisions to creditors in the Probate Code. The following day, September 30,1992, the probate court replied by letter that the motion was denied because the appellants had an opportunity to present evidence at the August 20, 1992 hearing and chose not to take it. The afternoon of October 1, 1992, the appellants filed with the Saline County Probate Clerk a proffer of facts and a deposition of the administratrix taken on August 12,1992, in connection with litigation pending in Pulaski County Circuit Court and the decedent’s estate.
In its resulting order, filed on October 2, 1992, the probate court found that notice of appointment of personal representative and notice to creditors was published on October 22, 1990, the three-month limitation on filing claims set forth in the statute of nonclaim, § 28-50-101 (a), ended on January 22, 1991, and the appellants filed their claim on June 23,1992. Because the claim of the appellants was not known to or reasonably ascertainable by the administratrix at the time of first publication of notice, reasoned the court, the requirements of Ark. Code Ann. § 28-40-111(a)(4) (Supp. 1991) concerning notice to creditors known or reasonably ascertainable by the personal representative within one month from first publication of notice were not applicable to the estate or to the administratrix.
In addition, the probate court declared that the claim did not become ascertainable during the three months following the first publication of notice. Therefore, the administratrix had no duty to send actual notice to the appellants. Turning to the nonclaim statute, the probate court ruled that the appellants had failed to file their claim within the three months required, which barred their claim for recovery against the estate.
Also, on October 2, 1992, a second order was entered denying the appellants’ request for an evidentiary hearing. The probate court reiterated that the appellants had an opportunity to present their case on August 20,1992. It also found that the facts necessary to decide the claim were undisputed and that an additional hearing to put facts into the record which were irrelevant to the ruling on the claim was unnecessary. Further, the court found that the issues raised with respect to the unconstitutionality of the Probate Code notice provisions were not raised at the first hearing and, thus, untimely.
On October 12, 1992, the appellants filed a motion for amendment of order and trial on the merits of the case. The motion was deemed denied on the 30th day under Ark. R. App. P. 4(c). The estate was then closed on November 24, 1992.
I. EVIDENTIARY HEARING
The appellants first contend that they were denied an evidentiary hearing and the chance to make a record on their claim. It is clear, however, from the probate court’s letter of September 30, 1992, and the order of October 2, 1992, that the court considered the proceeding it conducted on August 20,1992, to be a hearing. Indeed, the court specifically found that a hearing was held. Furthermore, as the court plainly stated in its letter to appellants’ counsel on September 30, 1992, the attorney was given the opportunity to present evidence at the previous hearing and chose not to take it.
On appeal, the decision of the probate court will not be reversed unless it is clearly erroneous. Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992). Here, the parties are in irreconcilable conflict over whether a hearing occurred. The probate court found that a hearing was held. We presume, absent contrary information in the record, that what transpired on August 20,1992, supports the probate court’s findings. See King v. Younts, 278 Ark. 91, 643 S.W.2d 542 (1982); Armbrust v. Henry, 263 Ark. 98, 562 S.W.2d 598 (1978); Phillips v. Arkansas Real Estate Commission, 244 Ark. 577, 426 S.W.2d 412 (1968). The appellants have presented nothing to contravene the finding that a hearing was held except their assessment of what occurred. Thus, we cannot say on the basis of the record before us that the probate court erred in finding that the appellants were afforded an opportunity to present evidence and forfeited it.
II. REASONABLY ASCERTAINABLE CREDITORS
Appellants’ primary argument is that they were reasonably ascertainable creditors who were not given actual notice and that the two-year statute of limitations applies under Ark. Code Ann. § 28-50-101 (h) (Supp. 1991), which would preserve their claim.
The relevant statutes read in pertinent part:
(a)(1) Promptly after the letters have been granted on the estate of a deceased person, the personal representative shall cause a notice of his appointment to be published stating the date of his appointment and requiring all persons having claims against the estate to exhibit them, properly verified to him, within three (3) months from the date of the first publication of the notice, or they shall be forever barred and precluded from any benefit in such estate.
(4) Within one (1) month after the first publication of the notice, a copy of the notice shall also be served upon each heir and devisee whose name and address are known and upon all unpaid creditors whose names, status as creditors, and addresses are known to or reasonably ascertainable by the personal representative in accordance with § 28-1-112(b)(1), (2), or (3). If, thereafter, the names and addresses of any such creditors are ascertained^ copy of the notice shall be promptly served upon them. The burden of proof on any issue as to whether a creditor was known to or reasonably ascertainable by the personal representative shall be upon the creditor claiming entitlement to such actual notice.
Ark. Code Ann. § 28-40-111(a)(1) & (4) (Supp. 1991).
(h) Notwithstanding any other provisions of this section to the contrary, the claims of all known or reasonably ascertainable creditors shall be barred at the end of two (2) years from date of first publication of notice to creditors, even if they have not been provided actual notice in accordance with § 28-40-111(a)(4).
Ark. Code Ann. § 28-50-101(h) (Supp. 1991).
Both statutes were either amended by or the result of Act 929 of 1989, which itself was a response in part to the United States Supreme Court’s decision in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478 (1988). In Pope, the Court held that actual notice by means such as mail service was required for reasonably ascertainable creditors under the Due Process Clause and that constructive notice by publication did not suffice.
The first question before us is when must the appellants be deemed to be reasonably ascertainable creditors of the estate and entitled to actual notice. The estate argues, and the probate court found, that the creditors must be reasonably ascertainable during the three-month period of the statute of nonclaim. The appellants, however, urge that if they were reasonably ascertainable any time during the two-year period under § 28-50-101(h), that is sufficient.
The probate court correctly found that a creditor of the estate must be subject to identification during the three-month statute of nonclaim. This makes eminent sense. Otherwise, all estates would be subject to a two-year administration on the basis that a creditor might surface with a legitimate claim after the three-month period and be entitled to a two-year limitations period before being barred. We are not willing to conclude that the General Assembly intended for all estates to be two years in duration because of the potential that additional claims might come to light subsequent to the nonclaim period.
The next issue, then, is whether the appellants’ claim was reasonably ascertainable during the period between first publication of notice — October 22, 1990, and the three months thereafter, ending on January 22,1991. Since the loan was not in default until February 1,1991, no claim had crystallized against the estate until that time.
The appellants assert that the administratrix of the estate was not diligent in identifying the appellants as potential creditors of the estate who were entitled to actual notice during the nonclaim period. However, there was no evidence of record presented to the probate court on August 20, 1992, to support the fact that she was not. The mere filing of a proffer of facts and the administratrix’s deposition on October 1, 1992, which was a month and a half after the court’s decision on August 20 and the day before the court entered its order, did not translate into evidence under Ark. R. Civ. P. 32. Indeed, there is nothing in the record to suggest that the deposition was brought to the probate court’s attention either at the August 20 hearing or thereafter. We will not consider evidence for purposes of appeal that was not considered by the trial court, regardless of whether the evidence may have merit. Kolb v. Morgan, 313 Ark. 274, 854 S.W.2d 719 (1993). The appellants simply did not satisfy their burden as required by § 28-40-111(a)(4).
The remaining issues raised present no basis for reversal. The appellants did not advance the constitutional points until September 29, 1992, well after the August 20, 1992 hearing where a decision by the probate court was made. We agree with the estate and the probate court that those issues and arguments were not timely made and are not preserved for our review. See Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992). Nor do we conclude that there was any evidentiary or procedural basis for the probate court to amend its October 2, 1992 orders pursuant to Ark. R. Civ. P. 59(a).
Affirmed.
The appellants state that the decedent took title to the Duncan Drive property and then deeded it to his brother. Certain documents in the record suggest that S & T Homes, Inc. may have actually taken title and later been grantor of the deed to the decedent’s brother. | [
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Tom Glaze, Justice.
Charles Lee was charged and convicted of the capital murder of Phillip Cordova and aggravated robbery. He was sentenced to life imprisonment without parole for capital murder. The sole issue on appeal is whether the pretrial photographic spread used to identify Lee was unnecessarily suggestive and violative of his due process rights, requiring its suppression as well as the in-court identification. Because we find Lee’s argument without merit, we affirm his conviction.
An eyewitness to the murder, Leigh Sharp, testified that she and Cordova drove into a parking lot around 1:30 a.m. on August .7,1992, and she became nervous when she realized they were in a “bad part of town.” While stopped there, she saw two men approach Cordova’s truck twice and offer to sell cocaine to Cordova which he declined. On the second attempt at a sale when Lee told Cordova to “drop the money”, Sharp testified that when she leaned forward in the truck, she saw Lee shoot Cordova with a pistol. Sharp, who had been sitting on the passenger’s side of the truck, left the cab and went around to the driver’s side to help Cordova. Sharp testified that a third male then approached the passenger’s side of the truck and she saw the man take the wallet she had left on the seat of the truck. Further, she was able to describe Lee and the other two suspects and what they were wearing. The other two suspects were picked up shortly after the crime ánd their clothing matched the clothing described by Sharp. Additionally, the man who Sharp said took her wallet had blood on his shirt and hands when he was apprehended.
At trial, Gary Jackson testified that Lee came over to his house and told him that he was thinking about robbing someone to get money. Jackson further testified he saw Lee again that night at the parking lot and later, around 2:30 a.m. or so, Lee ran over to Jackson’s house with a .22 gun and said he had just shot someone. Additionally, Manee Settles, who Sharp identified as the one who took her wallet, testified Lee shot Cordova.
In Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981), we held that when a pretrial photographic identification is followed by an eyewitness identification at trial, the conviction will be set aside only if the photographic show up was so suggestive as to create a substantial possibility of irreparable misidentification. Accordingly, factors to be considered in determining the reliability of a lineup identification are: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. The corrupting effect of the suggestive identification itself is weighed against these factors, and whether the identification procedure is violative of due process is determined from the totality of the circumstances. See also Robinson v. State, 275 Ark. 473, 631 S.W.2d 294 (1982). Our review of the record reflects the evidence overwhelmingly supports Sharp’s identification of Lee as the one who shot Cordova. Further, her identification of Lee from the photospread was not suggestive and thus could not taint her in- court identification.
For support, Lee cites Foster v. California, 394 U.S. 440 (1969). There, the eyewitness was unable to make a positive identification at the first lineup where Foster was placed with men considerably shorter than he. Even after the eyewitness met one-on-one with Foster, the identification was tentative with the eyewitness still indicating he was not sure Foster was the one. At a second lineup the eyewitness was finally convinced Foster committed the crime and positively identified him. Foster was the only subject who was used in both lineups. The Supreme Court reversed the conviction, holding the procedure “so undermined the reliability of the eyewitness identification as to violate due process” by making the ultimate identification of Foster “virtually inevitable”. Id. at 443.
In our case, the photospread in question was composed of six photographs of young males, showing front views of their heads. All of them appear to be dressed in orange overalls. It is evident that at least four men in the photospread have a sign hung around their necks, and of those four, part of the sign is visible in three of the photographs. Lee’s photograph is one of those three.
Lee argues that his photograph differs from the other two because, while the letters “LRPD” appear on the sign in those, his photograph is the only one in which an identification number is also visible. He further argues that the procedure leading to the identification by Sharp is tainted because it occurred three days after the crime, after she had already been shown two photospreads on the day of the shooting, and was unable to identify anyone as being involved in the crime. Finally, he argues that Sharp’s in-court identification of him should be suppressed because it was based solely on her identification at the photo-spread.
Lee’s reliance on Foster is without merit. From the record, it is clear that the trial court made its determination based on all the evidence presented. The following factors lending reliability to Sharp’s identification of Lee are: (1) she had the opportunity to observe Lee both from a distance as he approached the truck twice, and at close range when she leaned forward in the truck and had eye-contact with him; (2) evidence was presented that the parking lot was well lit and Sharp’s level of attention was heightened because of concern about her safety in the particular neighborhood; (3) the accuracy of Sharp’s prior description of two of the assailants and their clothing was verified by the police, and she was able to identify all three suspects from three photospreads; (4) Sharp identified Lee’s photograph immediately and without hesitation; and (5) the identification of Lee took place only three days after the crime.
Unlike the appellant in Foster, Lee’s photograph was used in only one photospread. In another photospread, which does not contain Lee’s picture, there were also six photographs and part of a number is visible in only one of them. From this photospread, Sharp identified the man who was with Lee on Cordova’s side of the truck. That man’s photograph is not the one in which the number appears. Thus, this evidence demonstrates that the display of a number alone was not suggestive, and, in this case, did not result in the inevitable selection of Lee’s photograph because a number was visible. In addition, Sharp testified that she never noticed any letters or numbers in the photographs when she identified Lee.
Finally, because Lee’s photograph was not included in the first two photospreads, he is unable to argue that Sharp’s identification of him was suggested by the previous photospreads. Witnesses testified Sharp was distraught and in shock immediately following the crime, and Sharp, herself, testified that she did not even remember seeing the photospreads at that time.
It is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence, and then it is for the jury to decide what weight the identification testimony should be given. Wilson v. State, 282 Ark. 551, 669 S.W.2d 889 (1984). The preliminary ruling by the trial court is on a mixed question of law and fact and will not be reversed unless clearly erroneous. Gonzales v. State, 301 Ark. 98, 782 S.W.2d 359 (1990); Banks v. State, 283 Ark. 284, 676 S.W.2d 459 (1984). Based on the totality of the circumstances, we find no error by the trial court in determining that Sharp’s pretrial identification of Lee was sufficiently reliable, and not suggestive or tainted as violative of due process. Therefore, neither the pretrial identification nor the in-court identification of Lee warranted suppression.
The record has been reviewed and no prejudicial errors were found in rulings adverse to Lee. Affirmed. | [
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Robert L. Brown, Justice.
Appellant Everett King was found guilty of delivery of a controlled substance and possession of a controlled substance with intent to deliver. He was sentenced to 36 years in the Department of Correction. He appeals his conviction on two grounds: (1) the trial court erred in refusing to grant a motion to suppress evidence seized following a search of his home; and (2) the trial court abused its discretion by failing to grant a motion for continuance of the trial. Neither point has merit, and we affirm the convictions and sentences.
The facts are these. In December 1991, Jeffery Kragel, who later became a confidential informant, was arrested by the Fayetteville police for delivery of marijuana. Following the arrest, he agreed to cooperate with the Fayetteville police in making a drug buy in order to minimize problems for himself and his wife. He called the home of Everett King, spoke to him, and arranged to purchase one-quarter pound of marijuana. After Kragel completed the arrangements, the police searched Kragel and his car. Kragel was then given $500 of photocopied Drug Task Force funds and outfitted with a body mike. Detective Allen McCarty of the Fayetteville Police Department testified that Kragel was then kept under surveillance as he drove to a brown and white trailer in Sonora outside of Springdale. McCarty observed Kragel pull into the driveway and exit his car.
Kragel was met on the porch by an unidentified person, and the two entered the house. Detective McCarty testified that he heard the conversation inside by way of the body mike but admitted that parts of the conversation were inaudible. He testified that he overheard what appeared to be a drug transaction. McCarty stated that he and a companion officer, Scott McElveen, drove by the King residence as Kragel got into his car. They then followed Kragel a short distance away to Spe-Dee Mart where he stopped and turned over a quarter pound of marijuana to the officers. The officers then followed Kragel back to the Fayetteville Police Department where the body mike was removed. The police searched Kragel and his car and found no drugs or money.
The transcript of the tape resulting from conversations overheard by means of the Kragel body mike indicates that Kragel stated that he saw no other drugs in the King trailer. However, Kragel and McCarty testified at the hearing before the circuit court that Kragel told the officers at Spe-Dee Mart that he saw about 60 small-growing marijuana plants at the trailer. He also testified at the hearing that a woman named Charlotte and another man were present at the house as well as King. King, he stated, actually sold him the marijuana.
Based on this information Officer McElveen prepared a search warrant and affidavit in support of the warrant. At midnight, McElveen presented both documents to Springdale Municipal Court Judge Stanley W. Ludwig. Judge Ludwig signed the warrant for a nighttime search of the King trailer. The police executed the search warrant and found approximately five to seven pounds of marijuana, approximately sixty marijuana plants, and numerous items described as drug paraphernalia. Police also recovered a loaded 30/30 caliber rifle. King was arrested and charged with possession of a controlled substance with intent to deliver; manufacturing marijuana; delivery of a controlled substance; and felon in possession of a firearm.
A motion to suppress the evidence obtained pursuant to the search warrant was filed, and at the hearing before the circuit court Kragel, the participating officers, Judge Ludwig, and King’s wife testified. The circuit court denied the motion.
Following a jury trial, King was found guilty of delivery of a controlled substance and possession of a controlled substance with intent to deliver. He was acquitted of drug manufacturing and the firearm charge. He was sentenced to consecutive terms totalling thirty-six years.
I. SUPPRESSION
For his first argument, King challenges the sufficiency of the affidavit underlying the search warrant. Our standard of review for a denial of a motion to suppress evidence is well established. We make an independent examination based on the totality of the circumstances and reverse the circuit court’s decision only if it was clearly against the preponderance of the evidence. Watson v. State, 308 Ark. 643, 826 S.W.2d 281 (1992); Ryan v. State, 303 Ark. 595, 798 S.W.2d 679 (1990); Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). On appeal we view the facts most favorably to the State as appellee. Holden v. State, 290 Ark. 458, 721 S.W.2d 614 (1986).
King’s argument for suppression is premised on his assertion that there were several statements contained in the underlying affidavit that were false and misleading. The alleged misstatements are these:
STATEMENT 1
On December 18, 1991, Detective McCarty was contacted by a confidential informant, who advised him that the resident of the aforementioned house, Everett King, had a quantity of marijuana for sale. [King argues that Kragel was arrested on a drug charge and agreed to cooperate only because of that.]
STATEMENT 2
At approximately 10:55p.m., the confidential informant met with Detective McCarty and Detective McElveen at the Fayetteville Police Department. [King disputes the word “met” because King was an involuntary informant.]
STATEMENT 3
Detectives McCarty and McElveen . . . overheard the confidential informant purchase approximately one quarter pound of marijuana from Everett King. [King argues that a precise marijuana buy could not be overheard since no mention of marijuana was made.]
STATEMENT 4
The confidential informant was then interviewed and indicated that he/she had observed approximately sixty seedling marijuana plants in the living room of King’s trailer. [King points out that on the tape Kragel said, “I didn’t see any other than what he gave me,” and that the plants were not found in the living room.]
STATEMENT 5
[The confidential informant] was kept under constant surveillance by Detectives Lovett and Owens .... [King says the surveillance was intermittent.]
King continues that under the Supreme Court decision of Franks v. Delaware, 438 U.S. 154 (1978), a hearing is required to be held on allegations of intentionally false statements, or statements made in reckless disregard of the truth, in the warrant affidavit. If falsity is established, then those items must be carved out of the affidavit, and the remainder of the information must suffice to establish probable cause.
The State takes issue with the appellant’s argument under Franks and vigorously contends that King did not follow the correct procedure under that decision. Specifically, the State argues that King never presented the circuit court with preliminary proof of material falsity, as was his burden, or requested the court to discard misstatements of fact and then determine whether probable cause to search remained. Because of these lapses by King, according to the State, a Franks argument is not preserved for appeal.
We do not agree with the State on this point. A hearing was held before the circuit court in which the informant, the municipal judge, and the police officers all testified. All were cross-examined by defense counsel on the accuracy of statements in the affidavit and search warrant. Certain errors were admitted. The circuit court concluded, however, after hearing the testimony that based on the four corners of the affidavit it would deny the suppression.
The circuit court was correct. Here, the transaction between the informant and King was a controlled buy, and the informant’s person and car. were searched before contact with King. The informant was watched arriving at King’s house and leaving King’s house. The body mike worn by the informant allowed the officers to overhear the conversation between the informant and the occupant of the house where reference to a quarter-pound was overheard. The informant was searched at Spe-Dee Mart after leaving the house, and marijuana was found. The informant identified King as the person who sold him the marijuana. The informant told the officers that he had observed approximately 60 marijuana plants at the King residence and restated this on cross examination at the hearing. The officers continued surveillance on the residence while in radio contact with the affiant, Officer McElveen, and assured the affiant that no one had left the trailer.
There is at least one factual discrepancy in the affidavit. Certainly the informant, Jeffery Kragel, cooperated with the Fayetteville police because of his arrest for delivery of marijuana and subsequently met with the police officers as part of that cooperation. However, we cannot conclude that the statements in the affidavit that the officers overheard a drug sale or that Kragel saw approximately 60 plants in King’s living room or that two officers kept Kragel under “constant” surveillance are intentional or reckless falsifications. Kragel told the officers about the 60 plants at the Spe-Dee Mart. The plants may have been in a room other than the living room and the surveillance may not have been continuous, but the statements made are substantially correct.
In sum, though a few inaccuracies may appear in the affidavit they are relatively minor when viewed in the context of the totality of the circumstances, including the affidavit taken as a whole and the weight of the testimony of the participants who procured and executed the search warrant. This is essentially what the circuit court found when it concluded that the affidavit “was sufficient in its four corners.” There was no error in the circuit court’s refusal to suppress the evidence seized.
II. CONTINUANCE
For his second point, King urges that the circuit court erred by failing to grant his motion for a two-week continuance based on lack of time to prepare.
Motions for a continuance are governed by Arkansas Rule of Criminal Procedure 27.3 which provides: It is well settled that a motion for a continuance is addressed to the sound discretion of the trial judge, and a decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Gonzales v. State, 303 Ark. 537, 798 S.W.2d 101 (1990); Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990). The appellant bears the burden of proving that the circuit court’s denial of a continuance was an abuse of discretion, and that burden entails a showing of prejudice. Rodriguez v. State, 299 Ark. 421, 773 S.W.2d 821 (1989); David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988).
Rule 27.3. Continuances. The court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.
King filed his motion on August 12,1992 — the day of the trial — though he had mentioned it to the court two days earlier and requested a two-week continuance to prepare further for trial. In his motion and argument he noted that he was represented by his first attorney, Barry Watkins, until June 1, 1992, and that his second attorney, Joel Huggins, was appointed. King maintained that he needed additional time to meet with his second attorney to prepare and alluded to the fact that he was incarcerated in Calico Rock some distance away and was not available to meet with his attorney until Saturday, August 8, 1992, when he was returned to Washington County by the Sheriff.
In deciding this matter, the circuit court observed that appellant’s return to Washington County on August 8 gave counsel the weekend to discuss a defense with King. The court then added: “And it’s obvious to the Court from your pleadings that you’re thoroughly familiar with the case, that you have it in hand, and I frankly can’t see any reason to continue the case, unless you want to give me some more meat to your motion.” In this regard, we note that Huggins advised the circuit court at the hearing that he met with King twice on June 3.
Defense counsel argues on appeal, as he did before the circuit court, that he needed additional time to prepare because his defense had changed. He added that he needed to subpoena an additional witness, Charlotte Guthrie, who he asserted was present at the drug sale. In rejecting this argument, the circuit court stated that defense counsel had known of Ms. Guthrie for some time and that her identity had not just come to light. To accommodate King and his counsel, however, the court issued a forthwith subpoena for Ms. Guthrie.
For that facet of his continuance argument relating to an absent witness, King failed to meet the statutory requirement. See Ark. Code Ann. § 16-63-402 (1987). That statute requires that a motion for continuance due to an absent witness be accompanied by an affidavit showing what facts the affiant believes the witness will prove, that the affiant believes them to be true, and that the witness is not absent by the consent, connivance, or procurement of the party asking for the postponement. No affidavit as required by § 16-63-402 accompanied King’s motion.
Finally, King has failed to show how he was prejudiced by the denial of his motion. Rodriguez v. State, supra. The circuit court was entirely correct in its ruling.
Affirmed. | [
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Hart, C. J.,
(after stating the facts). The road district in question was organized pursuant to a special act passed by the General Assembly of 1919. Boad Acts of 1919, vol. 1, p. 1205. Complaint is again made that no notice to construct the crossings in question was given the railroad company. This question was decided adversely to the contention of counsel for the defendant upon the former appeal, to which attention has been called above. Upon the former appeal the court had under consideration the provisions of § 24, which provides that, when the highways shall cross the track of a railroad, the company owning the track shall make the crossing of the same material and in the same manner as the highway on either side, and shall bear the cost of constructing the crossing and its maintenance. The court said that, under the statute, it was the duty of the railroad company to construct and maintain the crossing, and that the railroad company must take notice of the duties imposed upon it by the statute. The court also called attention to the fact that the plans for the crossing bad been prepared and filed with the clerk, and that no additional notice was necessary to make. the requirements of the statute binding upon the railroad company. This holding of the court upon the former appeal became the law of the case and governs us upon the present appeal.
It is next contended that the judgment- should be reversed because the crossing was constructed over the entire width of the right-of-way, and not merely across its tracks. This contention of counsel for the defendant was decided adversely to them in Chicago, Rock Island & Pacific Ry. Co. v. Redding, 124 Ark. 368, 187 S. W. 651, Ann. Cas. 1918B, 183. In that case it was held that, in constructing and maintaining crossings over public roads and streets, railroad companies must anticipate the reasonable demands of the public, and, where the traffic requires it, the crossing must be made available for the entire width of the road-or street. The road improvement district in question was organized for the purpose of improving certain public highways in the district. The plans for the proposed improvement contemplated that the railroad crossings should be constructed of the same material as the roads on either side. This was proper, in order to secure safety in travel. It was also proper that the whole of the right-of-way should be considered a part of the crossing. The crossing of the railroad would be more dangerous than if the crossing was not constructed of the same material and in the same manner as the highways on either side of it. It is a matter of common knowledge that public travel is conducted largely by motor vehicles, and this is especially true where the public highways are improved, as in the present case.
It is next contended that the judgment should be reversed because the original plans were altered after they were filed in the office of the county clerk. This is true, but such a course became necessary in order to secure the construction of the proposed improvement. The price of materials greatly advanced, and it became necessary to execute a supplemental contract in order to secure the construction of the improved highways according to the plans and specifications on file in the office of the county clerk. In order to accommodate the public travel and meet its reasonable requirements, it became necessary to change the plans of the public crossings, so that they required more material to be used in the construction thereof. No material change in the plans was had, however; and we do not think that the additional material and the advance in price which caused the execution of the supplemental contract could be said to be such a substantial change in the plans and specifications as to require additional notice to the railroad company.
It is next insisted-that the railroad company could not be compelled to construct the crossings, because it had paid its assessment of benefits under the provisions of the act, and could not legally be required to pay any further additional amounts of taxes for the improvement of the highways. We do not agree with counsel in this contention. The construction of the highway crossings was under the police power, and had no part in the assessment of benefits. In State of Minnesota v. St. Paul, Minneapolis & Manitoba Ry. Co., 98 Minn. 380, 108 N. W. 261, 28 L. R. A. (N. S.) 298, 120 Am. St. Rep. 581, 8 Ann. Cas, 1047, it was held that the State may, in the exercise of its police power, impose upon railroad companies whose lines intersect public highways laid out after the construction of the railroad the uncompensated duty of -constructing and maintaining at such crossings all such safety devices as are reasonably necessary for the protection of the traveling public. It was further held that such a requirement, being referable to the police power, is not a taking of private property for public use, in violation of the Constitution. This case was affirmed by the Supreme Court of the United States in 214 U. S. 497, 29 S. Ct. 698, 53 L. ed. 1060, on the authority of the Northern Pacific Railway Co. v. Duluth, 208 U. S. 583, 28 S. Ct. 341, 52 L. ed. 630. In the latter case it was held that, under the police power, a municipal corporation could require a railway company to repair, at its own expense, a viaduct and its approaches which carried a street over the right-of-way, notwithstanding the fact that the street was opened after the construction of the railroad, and that the railroad company’s charter did not expressly require it to construct or maintain crossings at streets thereafter opened. It was also held that the right to exercise the police power is a continuing one that cannot be limited or contracted away by the State or its municipality, nor can it be destroyed by compromise, as it is immaterial upon what consideration the attempted contract is based.
This holding is in accordance with our previous decisions bearing on the question. In St. Louis-San Francisco Rd. Co. v. Fayetteville, 75 Ark. 534, 87 S. W. 1174, it was held that, upon the opening of a new street across a railway right-of-way, the railway company was not entitled to the prospective cost of erecting an overhead crossing, as the Legislature might at any time compel it, without compensation, to construct such a crossing and keep it in repair.
Again, in Kansas City Southern Ry. Co. v. City of Mena, 123 Ark. 323, 185 S. W. 290, it was held that, where a city opened a street across the right-of-way and tracks of a railroad company, the railroad company is required to construct and maintain the crossing, but it cannot recover from the city any damages or compensation on that account.
The judgment of the circuit court was correct, and it will therefore be affirmed. | [
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Holt, J.
.Appellant, by appropriate action, questions the validity of § 3 of ordinance No. 554 which was duly enacted by the council of the city of Hope, Arkansas. This section reads as follows: “It shall hereafter be unlawful for any person, firm or corporation to construct or have constructed any building to be used or occupied by any. person without having such building connected with the sanitary sewer system of the city of Hope, Arkansas.”
Municipal corporations derive their legislative powers from the general laws of the state. Article 12, § 4, Constitution of Arkansas. In the City of Argenta v. Keath, 130 Ark. 334, 197 S. W. 686, L. R. A. 1918B, 888, we said: “A municipal corporation has no powers except those expressly conferred by the Legislature, and those necessarily or fairly implied as incident to or essential for the attainment of the purposes expressly declared. Willis v. City of Fort Smith, 121 Ark. 606, 182 S. W. 275; Bain v. Fort Smith Light & Traction Co., 116 Ark. 125, 172 S. W. 843, L. R. A. 1915D, 1021; Morrilton Waterworks Imp. Dist. v. Earl, 71 Ark. 4, 69 S. W. 577, 71 S. W. 666.”
Section 9615 of Pope’s Dig'est provides: “Nothing in this act shall be so construed as to authorize the board of health-to order or compel the building of a sewer by one property owner over the property of another, or for a greater distance from his property through or into any street or alley than three hundred feet, to a place where a connection can be made with a sewer. ’ ’
Appellant among other things alleged, as a faot, in his complaint that he had partially completed a residence on lot 3, h'lock 5, Wallace Addition to the city of Hope, Arkansas, and that this lot is more than three hundred feet from any point where connection can be made with any city sewer. Demurrer alleging that the complaint did not state a cause of action was sustained. This appeal followed.
It is our view that the city council of Hope had-clearly exceeded its legislative powers in the instant case and § 3 of the ordinance in question is invalid. By this section of the ordinance, the city council attempts to do exactly what § 9615, supra, says that it may not do, and that is that it may not require a property owner to connect with a sewer line unless the city provide sewer facilities within three hundred feet of his property. It is generally known that in many, if not all, municipalities of this state, there are outlying lots suitable for residence purposes more than three hundred feet from any sewer connection and it seems quite clear that the Legislature in enacting § 9615, supra, of course, had such property in mind and had no intention of preventing the erection of residences on such lots.
In the instant case appellant seeks to erect a residence on a lot which he owns and which is more than three hundred feet from a sewer connection. Certainly it cannot be said that the building of a residence is a nuisance per se. It may become one by its use. In which event the city of Hope, under its police power, could abate such nuisance, but to say to appellant in advance of the completion of the building in question that he cannot fiilish it because he alleges in his complaint that he proposes to equip it with “toilet facilities of the outdoor type approved by the State Department of Health and to be built according to WPA specifications,” is, we think, clearly an invasion of his constitutional rights. Unquestionably the city of Hope could force appellant, after he has erected his residence, to connect with its sewer when and if a sewer is provided within three hundred feet of appellant’s lot. A city may regulate the-construction of buildings (§ 9619, Pope’s Digest), but it cannot prevent construction unless tlie proposed construction is per se dangerous to the public health and safety.
Section 9615, supra, of the general statutes, is clearly a valid enactment — within-legislative powers — and comes within the rule announced by this court in the City of Helena v. Dwyer, 64 Ark. 424, 42 S. W. 1071, 39 L. R. A. 266, 62 Am. St. Rep. 206, where it is said: “The police power of the state is very broad and comprehensive, and can be exercised to promote the health, comfort, safety and welfare of society. Its limits have not been definitely defined. It is not, however, without its limitations.”
But, as indicated, the ordinance in question goes further than the state law authorizes. This court in Martin v. Hilb, 53 Ark. 300, 14 S. W. 94, in construing §§ 9612 and 9615 of Pope’s Digest, said: “It [act approved March 22, 1881, ■§ 18, p. 161, now § 9612, Pope’s Digest] provides that after the completion of any sewer authorized to be built under the provisions of the act, it shall be lawful for the board of health of the city, whenever in their opinion the public health will be promoted thereby, to order any one or more property owners near or adjacent to any sewer to construct upon their property sewers leading from some point on their premises to the sewer of the city for the purpose of conducting the sewage about such premises into the city sewers. The only conditions placed upon the exercise of this authority are, that, in the opinion of the board of health, the public health will be thereby promoted, and that their orders shall apply only to property owners near or adjacent to the city sewer. What is intended by property near or adjacent to the sewer is defined in a subsequent part of the act. Section 876, Mansfield’s Digest.” • Section 876, Mansfield’s Digest, is now § 9615 of Pope’s Digest.
In Malone v. Quincy, 66 Fla. 52, 62 So. 922, Ann. Cas. 1916D, 208, American and English Ann. Cas. 1916D, p. 211, the general rule is announced in this language: “Power to regulate does not include power to prohibit. '. . . The charter seems to contemplate the use of a sewer system and also of earth closets and privies, the power given to abate nuisance being broad enough to prevent the improper use of either utility. The ordinance here complained of in substance forbids the use of earth closets upon property in the city that is situate not more than 200 feet from the ‘main sewer line or the water main’ without reference to whether such closets are a nuisance. The enforcement of such an ordinance is not within the express or implied powers of the city; and a-s the city can exercise only such powers as aré conferred upon it by statute, the ordinance is invalid because not authorized bylaw; ...”
Having reached the conclusion that the trial court erred in dismissing appellant’s complaint, the decree is reversed, and the cause remanded with directions to proceed in conformity with this opinion. | [
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Mehaffy, J.
R. H, McConnell was the owner of certain notes secured by mortgage, and brought suit in the Sebastian Chancery Court, Greenwood District, to foreclose said mortgage. The note was given for real estate, and was executed by J. R. Dunning and his wife, Grace Dunning, payable to R. A. Harper. The note and mortgage were transferred by said Harper to the plaintiff, R. H. McConnell, and, as above stated, McConnell brought a foreclosure suit.
The complaint in the foreclosure suit alleged that there were two notes secured by the mortgage, each for $750 at 8 per cent, per annum, the first note due January 1, 1921, and the second note due January 1, 1922. The notes were lost when the Farmers’ Bank of Greenwood, Arkansas, was robbed, and could not be produced. On April 27, 1926, plaintiff was given 10 days in which to make the following amendment to his complaint: “Said notes bear 10 per cent, from maturity until paid.”
There was a decree on October 18, 1926, for plaintiff for the amount sued for with interest, and, by agreement, sale and execution were suspended' for 90 days, and the deputy clerk, Smith, was appointed commissioner to make the sale.
The chancery court adjourned on the 20th day of October, 1926, for the term.
It is undisputed that the chancery docket shows the above facts, and it is also undisputed that the attorneys for the plaintiff were to prepare precedent for the clerk and submit it to the opposing counsel for his examination, and, if he objected to it, it was to be submitted to the judge.
The defendant’s attorney objected to the precedent because of some difference in the interest, and the judge refused to approve the precedent, and in the response of Judge Bourland he says that the notes are fully described in evidence by plaintiff in his own personal testimony and by other witnesses, and their testimony was not contradicted by any of the defendants, and the' court accepted it as true, and still accepts it and believes it in fact to be true. And he also states that there was no doubt as to the tenor of the notes, although lost, but he says that the mortgage presented as an exhibit to the complaint does not contain a description of the notes mentioned, and the mortgage did not show upon its terms that it had been executed to secure the notes described in the complaint and given in evidence, but, on the face of the mortgage-, it had been given to secure other notes of a different description. The response then says that the particular difference between the description of the notes sued on and the notes described in the mortgage, while a relatively small difference, yet it was and is a vitally important legal difference, and the judge therefore thought that the mortgage should be reformed because of the difference between the testimony describing the notes and the description in the mortgage. And he states that the court could not, without supplementary complaint setting up a cause of action for reformation and serving on the parties, reform the mortgage.
The testimony had been taken, and convinced the court that it was correct, and that the interest should be . as stated in the testimony and not as stated in the mortgage, and this testimony was all introduced and considered before the decree was taken. The record does not show when these conclusions were reached by the judge, except that it was after the decree had been rendered and the court had adjourned.
The plaintiffs then filed an amended complaint, and the response of Judge Bourland says that the amended complaint filed for the plaintiff shows on its face that they knew that the court had declared and made known to them the setting aside of such premature decree. That it shows by the mere filing that the premature decree had been by the court vacated. The judge further states in his response that the defendant administrator, by the permission of the court, objected to the hearing of the same, and demurred on the ground that the amended complaint did not state even an imperfect cause of action for reformation, because none of the defendants had been summoned thereon or otherwise had legal notice, and that the court sustained the objections and struck the complaint from the record.
The chancery docket does not show that the original decree was ever vacated omset aside, but the judge himself says that, while the docket does not formally show the setting aside of the decree, both the attorneys and their clients knew, before the October term, 1926, closed, it was his intention of vacating the decree, and knew that it had been done at the October term, 1926, and that this knowledge is confirmed by their own act in filing an amended complaint at the April term, 1927.
It is undisputed that the chancery docket shows that the plaintiff was allowed 10 days to amend his complaint; that within that time it was amended by interlineation, the amendment simply showing that the notes were for 10 per cent, after maturity, the plaintiff and his attorney both swearing that this amendment was made, and made before the case was tried, and it is not disputed. The attorney for the respondent simply states that he does not know when it was made.
It is also undisputed that on October 18, 1926, the chancery docket shows that there was a decree for the plaintiff for $2,441.30 at 10 per cent. It is also undisputed that the chancery docket shows that there was a foreclosure sale to be made on a credit of three months, and that Smith was appointed commissioner. The docket also shows that the sale and execution were suspended for 90 days. ■
After the complaint was amended, evidence was introduced to the effect that the notes bore interest at 10 per cent, after maturity, and the chancellor was convinced that this evidence was true, and he rendered his decision accordingly. Evidently the chancellor had overlooked the clause in the mortgage describing the notes, and, when lie discovered that the mortgage said nothing about 10 per cent, after maturity, he concluded that that was a vital matter and that there would have to be a suit to reform the mortgage. And, according to his response, he told the parties this would have to be done, and he also states that he set aside the decree, although the chancery docket does not show anything about this.
We think the chancellor was in error in .holding that there would have to he a reformation of the mortgage; that plaintiff had amended his complaint to speak the truth, and had introduced testimony to establish the allegation in his complaint, but, if the evidence had been admitted without objection, the complaint would have been considered amended to conform to the proof, even if there had been no amendment to the complaint. The notes themselves were the evidence of the indebtedness, and contained the evidence of the amount of interest, and the mortgage was simply executed to secure the payment of these notes. And while it described the notes as bearing interest at 8 per cent., without saying anything about 10 per cent, after maturity, this in no way affected plaintiff’s right to recover on the notes and did not affect his right to have the land sold to pay the judgment, and there was no necessity for a reformation of the mortgage.
Mr. Johnson, attorney for respondent, in an affidavit states that shortly after the entry of an order the plaintiff’s attorney presented a precedent to him for a decree in accordance with the rules of the chancery court. That he took the decree to his office and, after inspecting it, informed Mr. Rowe that it did not conform to the pleadings and the exhibits which were offered in evidence to support his.decree, and that, if such precedent were finally approved and entered, he desired to appeal. That he also informed Judge Bourland of the variance, and that Judge Bourland informed him that the decree would be set aside. He further states that Judge Rowe informed him that he would take up the matter of the approval of the precedent, and that there was a rule that all decrees affecting titles to land had to be submitted to the counsel and then to the .judge, if they did not agree before the judgments became effective. That he was present when Judge Bourland informed Mr. Rowe that he could not approve the precedent, that the proceeding would have to be started over by the filing of a supplemental complaint, and also states that he procured a carbon copy of the complaint filed on the 21st day of April, that he filed an answer, and that he has no knowledge of when the change was made in the original complaint, bnt that it appears now that there was a change made.
It will be observed that Mr. Johnson does not claim to know when these changes were made, and the testimony of Judge Rowe and Mr. McConnell is positive on this question.
The chancellor says in his response, after he discovered the errors, that he expressed his determination to vacate the decree in the April term, 1927, which was done. Bnt the 1927 term was another term.of court, and the term at which the decree of foreclosure was rendered had ended. And the chancellor, after the end of the term at which the decision was made, had no authority to vacate or set aside the decree except for the grounds mentioned in the statutes or by the consent of the parties, and it is not shown that they consented to the setting aside of the decree. It is claimed that they knew it and filed a supplemental complaint, but there is no claim that they consented to setting aside the decree.
Our statute says: “A judgment is the final determination of the rights of the parties in an action.” Section 6233, Crawford & Moses’ Digest.
In this case it appears that, on the 18th day of October, the chancellor determined the amount,- after hearing the testimony, gave judgment for that amount, ordered the sale of the described property, and, by consent of the parties, suspended the sale and execution for 90 days, and then the court adjourned, and the attempt to set aside or vacate the decree was at the next term of court.
It is stated that the rules of the chancery court require attorneys to submit precedents to the attorneys on the opposing sides, and, if there is an agreement, then the precedent is to be submitted to the chancellor for his approval. But this does not mean that there has not been a judgment or decree rendered. In fact, there Avould be no occasion to prepare a precedent if there had been no decree. The precedent is to be prepared, and the chancellor passes upon the decree as to form. It would be the duty of the chancellor to order the clerk to put bn record a decree in conformity with his decision. If the precedent presented was not «satisfactory to him, of course he would not put that precedent on record. But it would be his duty to so change it as to make it conform to his findings, or to direct the clerk what to put on as a decree.
There is no claim that he took this case.undér advisement. The statute provides that the chancellor may take a case under advisement and render his decree in vacation, but it is not claimed that this case was taken under advisement, but the proof conclusively shows that the finding of the chancellor was made on the 18th day of October, 1926. After court adjourned the chancellor was without authority to set aside or vacate his findings, although he had authority to refuse to put on a precedent prepared by either party and to direct the clerk to put on record a decree in conformity with his findings.
After the lapse of the term of court following, October 16, 1908, that order became final, and could not be altered or changed except upon appeal. It could not thereafter be changed, set aside or altered by any further pleading, proceeding or trial in the lower court. •* * * A’judgment is an adjudication by a court by which the merits of a question are determined. There is no strict formality necessary in the language used to express the adjudication of the court. The judgment is tested by its substance rather than by its form. It is sufficient if the entry shows that the issue between the parties has been passed upon by the court and the merits of the question finally determined. * * * The rights of the parties to a suit are determined upon the trial thereof, which is defined by our statute to be a judicial examination of the issues, whether of law or fact, in action.” Melton v. St. Louis, I. M. So. Ry. Co., 99 Ark. 488, 139 S. W. 289.
It lias been said in speaking of the entry of judgments :
“That it will be regarded as sufficiently formal if it shows: (1) The relief granted; and (2) that the grant was made by the court in whose record the entry is written. In specifying the relief granted, the parties, of and for whom it is given must, of course, be sufficiently identified. * * * It was said of the trial magistrate that he, in entering up his judgment, acted ministerially as clerk. The judgment was held to be regular. In the California case cited (Lynch v. Kelly, 41 Cal. 232), the .justice had failed to enter a judgment upon the verdict of the jury. Subsequently he issued an execution upon the judgment. The question arose whether steps taken under the execution were not void in consequence of the judgment having been omitted. It was held that he might have been compelled, in a proper judicial proceeding, to have entered up the judgment, and that, though informal and irregular, the action under it was not void. * '* * The entry of the judgment is the act of the clerk; its signature the act of the judge. But it is not an act involving the exercise of discretion. It is ministerial, and, if there appears no good reason to ihe contrary, the judge may be compelled to sign a record which, in law, it was his duty to sign unconditionally. The judgment which was rendered (if one was) was the act of the court. Its recordation having been complete, as it is alleged it was, it remained only for the judge to sign it.” Montgomery v. Viers, 130 Ky. 694, 114 S. W. 251.
The court in the above case also said: “The judgment of the court is the pronouncement of the judge upon the issue submitted to him. When spoken, it is the court’s judgment. Necessarily, the giving of the judgment must precede its historical engrossment. The clerk of the court executes the mechanical act of recording in some manner so as to give permanence to the evidence of the .judgment that the court has delivered.”
Any judgment or decree which finally disposes of the issues between the parties to an action and finally settles and adjudicates all the rights in controversy, is a final judgment. And when these things are done and court adjourns, the court is without authority to vacate or set aside the judgment.
“A decree which finally disposes of all of the issues raised between all the parties to an action, and finally settles and adjudicates all the rights in controversy, is final. * * * A decree is none the less final because Some future orders of the court may become necessary to carry it into effect. * * * Nor because, when the merits of the controversy are adjudicated upon and the equities of the parties definitely settled and account is directed to be taken to ascertain what sum is due from one to the other as a result of the decision made by the court, or where, asa result of the judgment, the defendant or plaintiff is required to pay money in order to have it carried out and a subsequent order is necessary for the purpose of determining that the money had been paid and the conditions complied with.” Guaranty Trust & Savings Bank v. the City of Los Angeles, 186 Cal. 110, 190 Pacific 35.
It has been said that it must be manifest that the record is not the judicial act. It is only historical. Its practical use is evidential.
As we have said, the chancellor concluded that an error had been made, and that the judgment that he had pronounced was improper because of the difference in the description of the notes in evidence and the description in the mortgage. And it was because, in his opinion, this was a vital matter that he undertook to vacate the judgment at the following term.
The chancellor was in error in holding that a reformation of the mortgage was necessary and in vacating or setting aside the judgment at the following term of court.
The statute provides: “The judgment must be entered in the order book and specify clearly the relief granted or other determination of the action.” Section 6276, Crawford & Moses’ Digest.
We think that the entries in the order, book specify very clearly the relief granted and the determination of the action.
“The rendition of a judgment is the .judicial act of the court in pronouncing the sentence of the law upon the facts in controversy as ascertained by the pleadings and verdict or findings, as distinguished from the entry of the judgment, which is the ministerial act of spreading it at large upon the record. Upon its rendition, and without entry, a judgment is final, valid, and enforceable, as between the parties, in the absence of any statute to the contrary, although for many purposes entry of the judgment is also essential.” C. J., vol. 34, 44.
“The custom of drawing a formal judgment and having the judge to sign it is usually observed, particularly where it contains special provisions requiring settlement by the court unless agreed upon by the parties. But, unless required by statute or rule of court, this is unnecessary.” 34 C. J., 46.
“A decree becomes effective from the day of its rendition and not from the day of its entry on record.” Hollobauch v. Taylor, 134 Ark. 415, 204 S. W. 628.
“Where a judgment or decree has been actually rendered but not entered on the record, in consequence of an accident or mistake, or the neglect of the clerk, the court has power, at ¡a subsequent term, to order that the judgment or decree be entered of record nimo pro tunc, provided the fact of its rendition is satisfactorily established.” Kelley Trust Co. v. Lundell Land & Lbr. Co., 159 Ark. 218, 251 S. W. 680.
There are authorities to the contrary, but we hold that, when a decision has been reached, announced by the court and sufficient memorandum on the chancery docket to show a final settlement of the case, it is a final judgment, although it has not been spread in full upon the record. It becomes the duty of the court to require it to be spread upon the record.
This 'court has appellate jurisdiction 'only, except in cases specifically mentioned in the Constitution. And the Constitution gives this court appellate and supervisory jurisdiction over all inferior courts of law and equity. Section 4 of art. 7 of the Constitution.
This court, however, has no original jurisdiction to compel by mandamus a clerk of an inferior court to put a judgment or decree on record. The trial court itself has that authority. The chancellor in this instance has authority to direct the clerk of the chancery court. This court having no .jurisdiction to issue a writ of maclamus compelling the parties, other than the chancellor, to perform their duties as to recording judgments, the petition as to them is dismissed.
While it appears that the chancellor was in good faith trying to assist all parties in getting a proper valid judgment, we think that he made a mistake of law in holding that there was any necessity to reform the mortgage, and that he was mistaken in deciding that he had the right to set aside or vacate the decree after the term. Mandamus will therefore lie to compel the court to exercise its jurisdiction and power in having the judgment recorded.
It is therefore ordered that the clerk of this court issue a writ of mandamus, except as to the clerk and his deputy, in accordance with the prayer of the petition. | [
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Holt, J.
Appellees (plaintiffs below) joined in a suit against appellant to compensate personal injuries alleged to have been received by them when an automobile in which they were riding was struck on a crossing by one of appellant’s passenger trains. The allegations of negligence are (a) failure of the operatives of the train to give the statutory signals; (b) failure to keep a lookout and the 'failure to keep a flagman at the crossing in question; (c) operating the train at an excessive rate of speed; and (d) failure of those in charge of the train after they discovered, or by the exercise of ordinary care could have discovered, the perilous situation of appellees, to avoid injuring them.
Appellant answered with a general denial and in addition pleaded the contributory negligence of appellees and of E. M. Johnson, driver of the car in which appellees were riding.
A jury returned a verdict in favor of' Ester Johnson in the amount of $2,000 and a verdict for Belle Thorn in the amount of $500. From the judgment on these verdicts comes this appeal.
The principal contention of appellant for reversal is that the evidence was not sufficient to support the verdicts. The testimony viewed in its most favorable light to appellees is to the following effect:
February 1, 1941, at about 3:20 in the afternoon, E. M. Johnson, husband of Ester'Johnson and son-in-law of Mrs. Belle Thorn, drove his 1931 Model A Ford Tudor Sedan on paved highway No. 67 south between Walnut Ridge and Hoxie to a point where this highway is intersected at right angles by Georgia street, where he stopped his car because the highway .immediately ahead was blocked by freight cars being switched by appellant’s switch engine on a switch track which crossed highway No. 67 and lead to a cotton compress to the west. After waiting two or three minutes, Johnson, the driver of the car, turned off the highway to his left and at a speed estimated by himself at twelve to fifteen miles per hour, and by another witness from six to eight miles an hour, drove east on Georgia street, and at a distance of 48 feet from the highway passed over the compress switch track, and 21 feet farther on passed over the west main track of appellant and without stopping proceeded about 10 feet onto the east main track of appellant where appellant’s passenger train from the north, traveling about 50 miles per hour, and running late, struck the rear of the automobile in which appellees were riding, and as a result they were injured.
From a plat in evidence, giving various measurements, the compress switch track referred to above, curves to the west from the west main track 150 feet from the Georgia street crossing. The east main track and the west main track are eight feet apart.
As appellees approached the east main track where the collision occurred, their view, as well as that of the driver, E. M. Johnson, was obstructed to the north by some freight cars standing on the west main track just to their left, and north of Georgia street. There is evidence that the nearest of these freight cars was within 20 feet of Georgia street. On this point the evidence is conflicting, some witnesses placing the nearest car at a much greater distance to the north.
Whether the statutory signals were given is a disputed question of fact. It is undisputed that the driver of the automobile did not stop from the time he left the concrete highway until he drove upon the east main crossing and was struck by the on-coming train.
E. M. Johnson testified that he looked both to the south and the north and listened, but did not see or hear the train that struck his car. He testified that he could not see the train approaching from the north because his vision was obstructed by the standing freight cars immediately to his left on the west main track.
Appellees, who were guests in the Johnson car, testified that they looked and listened, but did not see or hear the train and that their vision to the north was likewise obstructed. They also testified that they relied upon Mr. Johnson, the driver, and were not giving any particular attention at the time. Mrs. Thorn (65 years of age) testified that she had never driven an automobile and did not try to tell the driver what to do or what not to do. Both appellees and the driver, Johnson, testified that they did not hear any whistle or bell or any signals given.
Ester Johnson further testified that just before the collision she saw Jim Haddock drive his wagon over the crossing in question.
It is conceded here that the appellees were guests in Johnson’s car. He was the owner and the driver. The rule is well settled that in these circumstances the driver’s negligence cannot be imputed to the appellees unless they failed to exercise ordinary care for their own safety.
Whether these appellees, in the circumstances here, failed to use ordinary care for their own safety, and the degree of their contributory negligence, if any, were-questions for the jury. As this court said in Missouri Pacific Rd. Co. v. Powell, 196 Ark. 834, 120 S. W. 2d 349, wherein the occupants of the automobile, and not the driver, were plaintiffs: “There is little evidence that these several plaintiffs might have done anything more than they did as the crossing was approached, but if there were anything they should have done, and did not do which made them guilty of contributory negligence, that was a jury question. It was not a matter of law. ’ ’
And in Missouri Pacific Railroad Company v. Henderson, 194 Ark. 884, 110 S. W. 2d 516, this court said: “The appellees, Henderson and Stanfill were invited guests, they had no control over the movement of the automobile in which they were riding, and Ingram’s negligence, however gross, cannot -be imputed to them. Therefore, we must look to the evidence only as it relates to their failure to exercise ordinary care for their own safety. It is admitted that no one could see to the south of the crossing until a point was reached not more than 45 feet from the edge of the west track. . . . Suffice it to say that under all the circumstances, a! case was presented for the jury both as to the negligence of the appellees and its degree, and we cannot say as a matter of law that their negligence equaled that of the appellant. Primarily, it was Ingram’s duty to operate the car so as not to endanger appellees and, in the exercise of ordinary care, they had the right to rely on the assumption that he would perform this duty. It cannot be said that ordinary care would require the exercise of the same attention to the route on their part as was required of Ingram; in fact, it would not be unreasonable to say that passengers in an automobile trust largely, if not wholly, to the skill and care of the driver for their safety.”
The question of the degree of the negligence of appellees was for the jury and we are unable to say on the testimony as reflected by this record that their negligence Avas equal to that of appellant.
Appellant, especially in oral argument before this court, strongly relied upon the recent case of Missouri Pacific Rd. Co. v. Howard, ms. op. May 11, 1942, p. 868, 161 S. W. 2d 759, as controlling the rights of appellees here and insists that under the rule there announced appellees are not entitled to recover. We cannot agree that that case controls here. A different situation, however, would present itself if, on the evidence before us, appellant were appealing from a judgment in favor of E. M. Johnson, the driver of the car. In such case we think the principles of law announced in the Howard case on the question of negligence of the driver of the car would apply.
Appellant also assigns as error the giving of certain instructions by the court, and its refusal to give others requested by appellant. We have carefully examined these instructions and have reached the conclusion that no error appears, and that the trial court fully and fairly covered all issues presented.
On the whole case, finding no error, the judgment is affirmed. | [
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Humphreys, J.
Appellees brought suit in the circuit court of Greene County, First Division, against appellant, in ejectment, to recover a strip of land five feet wide 'by thirty-six feet long, described as follows: “Beginning at a point 60 feet south of a point 75 feet east of the northwest corner of said lot 6, block 1, of Hunt’s Addition to Paragould, Arkansas, running thence east 36 feet, thence south 5 feet, thence west 36 feet, thence north 5 feet, to place of beginning. ’ ’
Appellees claim title to the strip by purchase and warranty deed of date November 16, 1923, from Robert Rutherford, alleging that said strip was embraced in the land described in the deed, which description is as follows: “That part of lot 6, in block 1 of Hunt’s Addition to Paragould, Arkansas, described as follows: Beginning at the northwest corner of said lot 6 and run east on north line thereof 75 feet, thence south 50 feet, thence east 36 feet, more or less, to the alley, thence south 30 feet, thence west to the east line of Pruett Street, at a point which is 48 feet south of the beginning, and thence north to the northwest corner of said lot 6.”
• It was further alleged in the complaint that appellant was in the unlawful possession of the land, claiming title thereto by mesne conveyances from Robert Rutherford.
Appellant filed an answer to the complaint, denying that the strip of land was embraced in the land described in appellee’s deed of date November 16, 1923, from Robert Rutherford, or that he was in the unlawful possession of same. He admitted that he was in possession of the strip of land in question, but alleged that he was in the rightful possession thereof by deed from Dora Bridges, who obtained title thereto by devise from Robert Rutherford.
According to the allegations contained in the pleadings, it will be obseryed that each claimed title to the strip in question from the same source.
The cause was submitted upon the pleadings,' the testimony introduced by the respective parties and the instructions of the court, which resulted in a verdict and judgment in favor of appellees for the strip of land in question, from which is this appeal.
Appellant contends for a reversal of the judgment, because he alleges that there is no substantial evidence in the record to-sustain same. Appellee introduced his deed and an engineer by the name of J. E. G-arrett, as a witness, in an effort to show that the strip of land in question was embraced within the boundaries of the land described in his deed from Robert Rutherford. The engineer was unable to locate the boundary lines in the deed, because he could not locate the beginning point. He was unable to find any plat of Hunt’s Addition to Piaragould, or any other plat by which he could determine the width of Pruett Street, referred to in the description, so as to definitely locate the east line thereof, or to find any map or plat showing the width of the alley referred to in the description, or to obtain any other accurate information by which he could determine the beginning point called for in the deed. After acquiring such information as he did, he made a tentative plat of lot 6, block 1, of Hunt’s Addition, which he admitted was not accurate or dependable.
Before the dispute as to the division line between the land claimed by appellees and that claimed by appel lant can be determined, it will be necessary to definitely locate tbe beginning point in some way in appellee’s deed. If be recovers at all be mnst recover upon tbe strength of bis own title, and, in order to show that tbe strip is embraced in tbe boundaries mentioned in bis deed, be must in some way definitely locate tbe boundaries.
We are not quite sure that tbe case has been fully developed, else we would reverse tbe judgment and dismiss tbe case. Thinking perhaps that these boundaries can be definitely ascertained in some way, we reverse tbe judgment, and remand tbe case for a new trial. | [
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"Wood, J.
On the 7th of October, 1926, the Bailroad Commission of Arkansas issued the following order:
‘ ‘ There came on for hearing before the Commission the application and amended application of the Kansas City Southern Bailway Company, asking that the Commission issue an order to permit the Kansas City Southern Bailway Company to discontinue its agent at Bavanna, Arkansas, and, after due consideration of said application and all facts in the premises, doth find: That, by a special act of the General Assembly of the State of Arkansas, approved February 23,1905, the Kansas City Southern Bailway Company, under the provisions of said act, was required to erect a depot at Bavanna and keep an agent therein, .to supply tickets, to receive freight for shipment, issue bills of lading, and to attend to all other services required of a station agent. The Commission holds that it does not possess the power to-authorize the Kansas City Southern Bailway Company to discontinue its agent at Bavanna, Arkansas, so long as the special act of the Legislature establishing the agent at Bavanna is in force. It is therefore by the Commission on tins day ordered that the original and the amended application of the Kansas City Southern Bail-way Company, for authority to discontinue its agent at Bavanna, Arkansas, be and it is hereby dismissed from the docket of the Commission for the want of jurisdiction. ’ ’
The railroad company appealed to the circuit court, and, on the 27th of January, 1927, the circuit court entered a judgment which recites, in part, as follows:
“This cause was submitted to this court upon the record duly certified to by the Bailroad Commission of Arkansas, as required by law, and upon briefs of counsel. The court, being well and sufficiently a'dvised in the premises, finds that this cause must he affirmed, for the reason that the Arkansas Bailroad Commission did not have .jurisdiction, because no petition signed by fifteen bona fide citizens residing in the territory at the station of Bavanna, Miller County, Arkansas, was filed for the discontinuance of the agency at that place. This court holds that, under § 1638 of Crawford & Moses’ Digest, the Arkansas Bailroad Commission is without jurisdiction, unless a petition for the relief prayed for is signed by at least fifteen bona fide citizens residing in the territory sought to be affected by the petitioners. It is therefore by the court ordered, adjudged and considered that the decision of the Arkansas Bailroad Commission be affirmed and the case herein dismissed.”
Prom the above judgment the railroad companies duly prosecute this appeal.
It will be observed that the only question for decision is whether or not the Bailroad Commission has jurisdiction to entertain the petition of appellants to discontinue their station agent at the town of Bavanna, Arkansas. The Bailroad Commission held that it had no power to discontinue, because of the special act of the Legislature of 1905 requiring the maintenance of an agency at Bavanna, while the circuit court held that the Bailroad Commission had no jurisdiction because no petition was filed signed by fifteen bona fide citizens residing in the territory at the station of Bavanna for a discontinuance of the agency at that place. Both decisions are wrong.
1. Act 149 of the Acts of 1907, as amended by No. 338 of that session, provides, in part, as follows:
“Section 1. That the Bailroad Commission of Arkansas be, and the same is, hereby authorized, empowered and required to hear and consider all petitions for train service, depots, stations, ispurs, sidetracks, platforms, and the establishment, enlargement, equipment and dis-continuance of the same along and upon the right-of-way of any railroad in this State; provided, said petition shall be signed by at least fifteen bona fide citizens residing in the territory sought to be affected.”
Section 2 requires tlie Railroad Commission, within thirty days after filing of the petition, to make a personal inspection of the conditions complained of and to investigate the objects sought to be accomplished by the petitioners, and gives the Commission power to hear testimony to determine the amount, degree and character of construction,, equipment, changes, enlargements of stations and depots which should be supplied by said railroad, railroad company, its lessees or operator. Section 2 concludes as follows: “And shall have the power and authority to require a reasonable train service for each and every railroad station and depot within the State of Arkansas, and their* finding shall be binding upon all such railroads within the State of Arkansas.”
Section 3 provides for the filing of the findings and decrees of the Commission with the Secretary of State, Attorney General, and circuit clerk of the county where the decree is granted, and for notice upon the defendant railroad company of such decree by delivery of a copy of its findings and decrees to the nearest local station agent, and to the superintendent, general manager, or other operator of such railroad or railroad company.
The 4th section provides foi; the penalty wherein a railroad company shall refuse to comply with the findings and decrees and mandates of the Railroad Commission, and provides that no order for doing anything under the act shall be made by the Commission until all parties concerned shall have received ten days’ notice of such proposed change.
The 5th section provides that the act shall not repeal any other act now in force or limit or curtail the powers and duties of the Railroad Commission of the State of Arkansas. See §§ 1638-.1641, inclusive, C. & M. Digest.
In the absence of a statute, railroad corporations authorized to do business in this State would have plenary power over the matters set forth in the above statute. A consideration of all of its provisions convinces us that it was not the purpose of the Legislature to take away or to curtail these powers, except in so far as railroad companies might attempt to exercise them in a manner detrimental to the public they serve. The only justification for the lawmaking body or the courts to place limitations or restraints upon the rights and powers of railroad companies under their charters is because such corporations may, in the absence of such limitations or restraints, in some manner seek to promote their own private and financial interests to the detriment of the public. The administrative functions of these corporations in the matters .specified in the statute are peculiarly within the power and discretion of their managing boards, and it was not the purpose of the Legislature to interfere with their power and discretion to serve as best they may the financial interests of these corporations and their stockholders, so long as, by so doing, they do not conflict with the duty which they owe the public in such matters.
In Northern Pacific Ry. Co. v. Washington Territory, 142 U. S. 492, 12 S. Ct. 283, 35 L. ed. 1092, the Supreme Court of the United Stales, among other things, said:
“The location of stations and warehouses for receiving and delivering passengers and freight involves a comprehensive view of the interests of the public as well as of the corporation and its stockholders, and a consideration of many circumstances concerning the amount of population and business at, or near, or within convenient access to one point or another, which are more appropriate to be determined by the directors, or, in case of abuse of their discretion, by the Legislature, or by administrative boards intrusted by the Legislature with that duty, than by the ordinary judicial tribunals.”
See also 2 Elliott on Railroads, § 739, and notes 73 and 74.
It was with a view of conserving the interests of the public that the Legislature provided, in the above statute, that at least fifteen bona ficle citizens residing in the territory affected should petition for the matters therein specified when petitioners conceived that the public interest would be subserved by the granting of the prayer of their petition. Such petitions are required and are essential to the jurisdiction of the Railroad Commission to consider and adjudge of any of the matters specified in the statute and set forth in the petition where the interest of the public is involved.
In St. Louis I. M., etc., Ry. Co. v. Belamy, 113 Ark. 384, at page 394, 169 S. W. 322, 324 (L. R. A. 1915D, 91), we said:
“A petition for the establishment of stations, depots, etc., or the discontinuance of the same, at one point and a relocation and establishment thereof at another, is necessary to give the Commission jurisdiction of the subject-matter.” See also St. Louis-S. F. Ry. Co. v. State, 120 Ark. 182, 179 S. W. 342, Ann. Cas. 1917C, 873, where we again held that a petition, as required by the act, “is essential to give the Commission jurisdiction to act upon the matters mentioned in the act quoted from. ” We also said' in that case, at page 187 (179 S. W. 343): “Evidently the Legislature did not intend to burden the Railroad Commission with the consideration of petitions for the things authorized to be petitioned for unless at least fifteen bona fide citizens residing in the locality to be affected were sufficiently interested to petition therefor.” These were oases in which petitions were filed seeking relief for the public against the railroad companies under the statute, and they clearly hold that, where the interests of the public are affected in the matters set forth in the statute, a petition as therein specified is essential to give the Railroad Commission jurisdiction. But the statute does not require such a petition, and same; is not essential, when the railroad itself is seeking relief through the Railroad Commission from a burden which involves, as it in substance alleges, great financial loss to it, while the removal of such burden would not in any manner injure the public it serves at its station at Ravanna. The petition specified and required by the statute, where the public is to be affected as against the railroad, is not essential to give the Railroad Commission jurisdiction to grant relief to the railroad itself, which it asserts will not in any manner interfere with the service it renders the public at that station.
2. This brings us to a consideration of the quest ion as to whether or not the Eailroad Commission had jurisdiction to discontinue the agency at Eavanna, notwithstanding the act of 1905 creating such agency. Act No. 50 of the Acts of 1905 requires the Kansas City Southern Eailway Company to erect a depot at Eavanna of suitable convenience for the traveling public, and to provide a room at such station for the protection and storage of freight, and that this railroad' company shall keep an agent at Eavanna to sell tickets, receive freight for shipment, issue bills of lading, and to attend to all services required of a station agent. Act No. 571 of the General Acts of 1919, page 411, created an Arkansas Corporation Commission, and gave it jurisdiction over common carriers, railroads, etc. That act abolished the Eailroad Commission, and transferred fall of its powers and duties to the Corporation Commission. Section 6 of that act, among other things, provides: “Every person, firm or corporation engaged in a public service business in this State shall establish -and maintain adequate and suitable facilities, etc., * * * and shall perform such services in respect thereto as shall be reasonably safe and ’sufficient for the security and convenience of the public,” etc. Section 10 of that act gives the Corporation Commission power, among other things, “to make any suitable order that the Commission may determine reasonably necessary to accommodate and transport the traffic, passenger or freight, transported or offered for transportation.” Act No. 124 of the Acts of 1921, General Acts, page 177, abolished the Corporation Commission and transferred all of its proper functions to the Arkansas Eailroad Commission. By act No. 124 of the Acts of 1921 it is provided that the jurisdiction of the Eailroad Commission “shall extend to and include all matters pertaining to the regulation and operation of all common carriers, railroads,” etc., and “(b) all other jurisdictions, if any, possessed by the Arkansas Eailroad Commission under the laws of Arkansas in force on March 31, 1919.” On March 31, 1919, the Arkansas Corporation Commission possessed all the jurisdiction that had been before possessed by the Arkansas Railroad Commission. Amendment No. 2 to the Constitution was declared adopted January 13, 1899. That amendment, in substance, provides that the General Assembly “shall pass laws to correct abuses and prevent unjust discriminations and excessive charges b}^ railroads for transporting passengers, freight,” etc., and “shall provide for the creation of such offices and commissions and vest in them such authority as shall be necessary to- carry into effect the powers hereby conferred.” The General Assembly, on March 11, 1899, created a Railroad Commission. An examination of that act will discover that the powers conferred upon the Railroad Commission by the act creating it had reference to the regulation of railroad freight and passenger traffic in the State and the prevention of extortions and unjust discriminations therein.
The General Assemblies of 1901 and 1903 passed acts pertaining only to the powers of the Railroad Commission over tariff rates and the regulation thereof. Acts No. 149 and No. 338 of 1907, which are of the same purport, conferred upon the Railroad Commission additional powers to those of merely regulating* tariff charges and discriminations therein, and provided as set forth in act 149 as amended by act 338 of the Acts of 1907 as set. forth above. The next act affecting the jurisdiction and powers of the Railroad Commission was that of April 1, 1919 (act No. 571), abolishing the Railroad Commission and creating* the Corporation Commission and conferring upon it all the powers and duties that were at that time exercised by the Railroad Commission. The next act was No. 124, approved February 15, 1921, supra, abolishing the Corporation Commission, creating, or re-creating, the Railroad Commission, and transferring all the proper functions of the Corporation Commission back to the Railroad Commission.
Now, before the passage of the General Acts of 1907, supra, conferring upon the Railroad Commission the power, and requiring it to hear all petitions for train service, depots, stations, etc., there had been many special acts passed such as the act of 1905 under consideration, and kindred acts, such as those requiring railroads to open and maintain depots, stations, to stop trains- at certain points and to keep and maintain agencies, etc. Many of Ihe acts of this character were passed during the session of 1905, when the act under review was passed, and many such acts also were passed during the session of 1907, which conferred upon the Bailroad Commission jurisdiction over such matters. The purpose of Amendment No. 2 to the Constitution was to confer upon the Legislature the power to create offices or commissions and to confer -upon such offices or commissions the power to correct abuses and to prevent, unjust discriminations, excessive charges in the matter of transporting freight and passengers, and to confer upon them such power as the Legislature .itself had in the matters pertaining to trains, depots, stations, etc., as set forth in the act of 1907. It was doubtless conceived by the framers of tho amendment and by the people in the adoption thereof, that such an administrative body as a Bailroad Commission, composed of few members, constituted and given jurisdiction over such matters, could more efficiently serve the public as -well as the common carriers than the G-eneral Assembly itself could- serve them. Therefore the Legislature was given power to create such a commission 'and to delegate to it jurisdiction over the matters mentioned.
In Helena Water Co. v. Helena, 140 Ark. 597, at page 605, 216 S. W. 26, 28, speaking of Amendment No. 2 to the 'Constitution, we said: “The argument in this case is that the amendment to the Constitution restricts the poivers of any office or commission created thereunder to those therein enumerated, viz., to the regulation of ‘excessive charges by railroads, canals and turnpike companies,’ and that it is beyond the authority of the Legislature to impose any further duties on any offices or commissions created for that purpose.” In answer to this argument we held, in effect, that it was within the power of the Legislature to create either a railroad commission or a corporation commission to carry out the powers enumerated in the amendment to the Constitution and other powers. We further said: “It is, in other words, the power to correct abuses by transportation corporations which is conferred by the Constitution, and not the' creation of any particular offices or commissions, and the Legislature could, in the first instance, have created the present commission, and conferred upon it the enumerated powers and others.”
The act of 1907 is sufficiently comprehensive in its terms to give jurisdiction to the Railroad Commission to abolish agencies that have been created by special acts of the Legislature as well as to establish agencies where the Commission finds it necessary to do so. But, if we are mistaken in this conclusion, certainly the Legislature, in the subsequent acts of 1919 and 1921, supra, enlarged and extended the jurisdiction of the Corporation Commission, and the Railroad Commission to which the Corporation Commission’s powers were transferred, so as to necessarily include, by implication at least, the power to abolish an agency as well as to establish one. This power is embraced in §§ 6 and 10 of act No. 571 of the Acts of 1919, creating the Corporation Commission and conferring .upon it the power to establish and maintain adequate and' suitable facilities, etc., and also, in § 10, “to make any suitable order that the Commission may determine reasonably necessary to accommodate and transport the traffic, passenger or freight,” etc. It is also conferred- upon the Railroad Commission by act No. 124, transferring to it 'all proper functions of the Corporation Commission and giving the Railroad Commission -jurisdiction over all matters pertaining to the regulation and operation of all common carriers, railroads, etc. A consideration of Amendment No. 2 to our Constitution and of the various acts passed since its adoption creating the Railroad Commission and conferring upon it the broad general powers prescribed in these several acts, convinces ns that the Bailroad Commission has jurisdiction over the subject-matter of abolishing railroad agencies as well as creating the same, and, by virtue of the powers expressly conferred upon it over the matters mentioned, it has the implied power, in the absence of a statutory regulation, to formulate rules of procedure for the hearing of applications on the part of the railroad company to be permitted to abandon an agency, or to correct any abuses to which the railroad companies themselves are subjected. These rules must provide for notice to be given the public and all parties interested in the subject-matter.
The Legislature, by vesting the Bailroad Commission with these broad general powers over all matters pertaining to the regulation land operation of all common carriers, railroads, etc., and especially pertaining to the matters mentioned in Acts of 1907, relating to train service, depots, stations, etc., did not intend to repeal the 'special acts that had been passed, such as the act of 1905 under review, relating to the subject-matters specified in the Acts of 1907. 'But it was the purpose of the General Assembly, in enacting these statutes, notwithstanding these special acts, to confer upon the Bail-road Commission the power, if the circumstances' justified, to consider all matters over which the Bailroad Commission is given jurisdiction under the general laws of Arkansas in force on March 31, 1919, which included the jurisdiction over the matters specifically mentioned in act No. 149 of the Acts of 1907, as amended by act No. 338 of that session and the enlarged jurisdiction conferred by the latter acts of 1919 and 1924, supra. The comprehensive jurisdiction vested in the Bailroad Commission by act No. 124, supra, which, as above set forth, extends to and includes all matters pertaining to the regulation and operation of trains and all other jurisdictions possessed by the Arkansas Bailroad Commission under the Constitution and laws of Arkansas in force on March 31, 1919, unquestionably confers jurisdiction on the Bailroad Commission to correct, all abuses that then existed, or might in the future obtain, by virtue of any act of the Legislature covering the special matters designated by act No. 149, as amended by act 338 of the Acts of 1907, and all other matters pertaining to the regulation of all common carriers, railroads, etc., set forth in act 124 of the Acts of 1921. Such sweeping' jurisdiction necessarily embraces the power, at the instance of a railway company, to discontinue an agency at a station where justified by the circumstances, although created by special act of the Legislature.
Our conclusion therefore is that the Railroad Commission had jurisdiction to entertain the petition of appellants for permission to abolish the agency at Ravanna, and that the Commission should provide for notice to be given of the pendency of the petition and an opportundy for all parties interested to appear and protest the application, and an opportunity for petitioner and protestants to take proof and to be heard on their respective contentions. Prom the final order entered by the Railroad Commission, after such hearing, the statute (act No. 124, § 20) makes provision for an appeal to the circuit court, and (§21 of act 124) makes provision for an appeal by any party aggrieved from the circuit court to the Supreme Court.
The circuit court therefore erred in affirming the decision of the Railroad Commission and in dismissing the application or petition of the appellants asking for authority to discontinue the agency at 'RaVanna. The judgment is reversed, and the cause is remanded with directions to the trial court to enter a judgment setting aside the order of the Railroad Commission denying the appellant’s petition, and to certify its judgment to the Railroad Commission for further proceedings. | [
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Holt, J.
Appellee, Mrs. Bessie Harrison, sued appellants' to recover for personal injuries alleged to have been received by her when she fell while walking along a footpath on appellants’ right-of-way near Leola, Arkansas. She alleged in her complaint that while walking in said footpath she “tripped over the rubbish which had been placed in the path by the agents, servants and employees of the defendant company, and was thrown violently to the bottom of a deep ditch along said right-of-way, breaking her left leg” and otherwise sustaining injuries, all due to the negligent acts of appellants.
Appellants answered with a general denial and affirmatively pleaded contributory negligence and assumption of risk on the part of appellee.
A jury .awarded Mrs. Harrison damage in the amount of $500. This appeal followed.
The evidence stated in its most favorable light to appellee, as we must do, is to the effect that at the time of the injuries complained of she lived about two miles from Leola, Arkansas. At about ten o ’clock at night appellee, in company with five of her children and some neighbors, was returning to her home from a political meeting in the town of Leola. As she walked along a footpath on appellants’ roadbed and right-of-way, and a few feet from the edge of its crossties, she stumbled upon a piece of metal partly buried in the edge of the footpath and fell some twenty-five feet down the embankment, breaking her left leg and otherwise sustaining injuries. It was a bright night and she could see where she was walking. Those in her party were walking single file, some in front of and some behind her, when she fell. Her husband discovered the piece of metal in the footpath the following morning. This path had been used by her and the public for about twenty years. Subsequent to her injuries, and about two weeks before the cause was brought to trial, appellants erected signs along this path warning the public that the path was on the private property of the railroad company and to “keep off. ’ ’ There was other testimony tending to corroborate appellee.
For reversal appellants earnestly argue that the court erred in refusing to direct a verdict in their favor as requested in their instruction No. 1. This challenges the sufficiency of the evidence to support the verdict. It is our view that the court erred in refusing, at the conclusion of the testimony, to instruct a verdict for appellants.
Under the undisputed testimony in this case appellee was a bare licensee at the time she was injured and comes clearly within the rule announced in the case of Chicago, R. I. & P. Ry. Co. v. Payne, 103 Ark. 226, 146 S. W. 487, 39 L. R. A., N. S., 217. In that case the facts are, in effect, similar to those presented here. The footpath in that ease had been used for more than ten years by the public. There this court said:
“The undisputed evidence shows that appellee was a mere or bare licensee. She was using the footpath upon appellant’s right-of-way for her own convenience, and not for any purpose connected with the business of appellants or for the common interest or mutual benefit of appellant and appellee. Appellant did no affirmative act to compel or induce appellee to use the footpath upon its right-of-way. It merely acquiesced in such use by appellee and the public. Under such circumstances it cannot be said that there was any implied invitation upon the part of appellant for the use of its right-of-way by appellee. Appellant therefore did not have to exercise ordinary care to make the pathway safe for appellee.
“In St. Louis, I. M. & S. Ry. Co. v. Dooley, 77 Ark. 561, 92 S. W. 789, we said: ‘The bare permission of the owner of private grounds to persons to enter upon his premises does not render him liable for injuries received by them on account of the condition of the premises.’ In Arkansas & Louisiana Ry. Co. v. Sain, 90 Ark. 278, 119 S. W. 659, 22 L. R. A., N. S., 910, we said: ‘To bare licensees railroad companies owe no affirmative duty of care, for such licensees take their license with its concomitant perils.’ St. Louis, I. M. & S. Ry. Co. v. Ferguson, 57 Ark. 16, 20 S. W. 545, 18 L. R. A. 110, 38 Am. St. Rep. 217; St. Louis, I. M. & S. Ry. Co. v. Tomlinson, 69 Ark. 489, 64 S. W. 347; Hobart-Lee Tie Company v. Keck, 89 Ark. 122, 89 S. W. 112, 116 S. W. 183; Little Rock & Fort Smith Ry. Co. v. Parkhurst, 36 Ark. 371. See Wright v. Boston & Albany Rd., 142 Mass. 296, 7 N. E. 866; Plummer v. Dill, 156 Mass. 426, 31 N. E. 128, 32 Am. St. Rep. 463; Elliott on Railroads, § 1249; Galveston Oil Company v. Morton, 70 Tex. 400, 7 S. W. 756, 8 Am. St. Rep. 611.”
And in the recent case of Chicago, R. I. & Pac. Ry. Co. v. McCauley, 112 S. W. 2d 625 (not reported in the Arkansas Reports), this court again reaffirmed the rule announced in the Payne case. There this court said: “Appellant had nothing to do with making the pathway, and did no affirmative act inviting her and the others to do so. The duty, therefore, did not rest upon appellant to exercise ordinary care to make the pathway safe for the use of appellee and others who made it. The most that appellant did was to acquiesce in the use of the pathway by appellee and others.”
Appellee relies strongly for affirmance of the judgment on the Dooley case, supra, and Missouri Pacific Railroad Company v. English, 187 Ark. 557, 61 S. W. 2d 445. An examination of these cases discloses a clear distinction between them and the instant case. In the Dooley case the railroad company had constructed and maintained some steps over a fence along its right-of-way, which were used by the public, and which had been allowed to become defective. In the English ease the facts disclose that there was a footbridge more than thirty years old that had been maintained by the railroad company on its premises and which had fallen into disrepair. In these two cases, upon which appellee relies, there was an implied invitation to the public to use the property of the railroad company. Therefore, the duty was imposed on the railroad company to use ordinary care in maintaining the steps and bridge in question.
In the instant case, as has been indicated, the facts are entirely different. Here there was no implied invitation to appellee to use the footpath in question. She was using this footpath on appellants’ right-of-way for her own convenience and for no purpose connected with the business of appellant or for the mutual benefit of her self and appellant. There is absent any affirmative act on the part of appellant to induce appellee to nse the footpath in question.
For the error indicated, the judgment is reversed, and since the cause seems to have been fully developed, it' will be dismissed.
Mehaffy and Humphreys, JJ., dissent.
The Chief Justice concurs. | [
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M cIIaney, J.
The parties to this litigation are Negroes, appellant being the widow of Bishop Kilpatrick who was the brother of appellee. The action was brought September 3, 1940, by appellee against appellant and he alleged that, on June TO, 1929, he acquired a certificate of purchase for the delinquent taxes for the year 1928 on the SE SW 26-6 N, 2 W, in Woodruff county, and had regularly paid the taxes thereon from 1929 to date; that he procured a clerk’s tax deed to said land which was filed for record July 20, 19.40; that he put his brother, Bishop, who died in 1940, in charge of said land, and that Bishop left surviving him his widow only; that he has been in possession of said land for more than eleven years; that appellant claims some interest in the property, the nature of which he is unaware; that Bishop farmed same as his tenant; that he is entitled to an accounting of the rents and profits for 1940 and to an injunction to prevent appellant from disposing of the crops for said year; that appellant has no valid claim to the property; and that she is insolvent. He prayed that she be so enjoined, for an accounting on the 1940 crops, that his title be quieted and confirmed and that he have a writ of possession. The answer was a general denial and averments regarding the title to said land, which will be hereafter referred to.
Trial resulted in a finding and decree for appellee. The court found that, on June 10, 1929, L. L. Cole, a white merchant, with whom Bishop Kilpatrick did business, purchased for appellee the land involved for the delinquent taxes of 1928 and received a certificate of purchase; that in 1940, appellee procured a-clerk’s tax deed to the land, which is of record; that appellee, from 1929 to May, 1940, has been in adverse possession of said land through his brother, Bishop, as his tenant; that Bishop died in May, 1940, and appellant refused to turn over possession of the property to appellee; that appellee is the owner and entitled to the possession and that the receiver, theretofore appointed, should turn over to appellee the rents collected by him. This appeal followed.
There is a suggestion that the court was without jurisdiction as this is a suit in ejectment. The point was not raised below and is not seriously raised now, and it was not wholly a possessory action. Other equitable relief was prayed and granted, including an accounting.
The facts are that the land in controversy had belonged to Ike Smith, a brother-in-law of appellee and Bishop, who acquired same by donation from the State about 1900. At that time he, Ike, was married to Celia Kilpatrick Smith, sister of appellee, and they lived together as husband and wife until about 1910, when he deserted her and went away with another woman, but there was no divorce and Ike died about 1913 or 1914. Celia remained in possession of said,land from 1910 to 1924, when she died. Both Bishop and appellee lived with her at times and Bishop and appellant were living with •Celia at the time of her death. Bishop paid the taxes from 1924 to 1928, but refused to pay the 1928 taxes due in 1929, and he never claimed to own the land. Both he and appellee erroneously thought Celia owned the land. The undisputed testimony is that Celia wanted appellee to have it and Bishop so told Mr. Cole who bought the land at the tax sale in the name of appellee, and Bishop paid Mr. Cole the purchase price by selling a cow belonging to appellee. Thereafter Bishop paid the taxes ■each and every year in the name of appellee, Bishop being left in possession as appellee’s tenant, the rent being the taxes and upkeep of the property. In 1940, appellee got his deed. Thus, appellee was in possession for eleven years through his tenant, under his tax purchase. The collector’s certificate of purchase was evidence of title. In Worthen v. Fletcher, 71 Ark. 386, 42 S. W. 900, it was said: “This court held (in the original oral opinion in same case) and still holds that the certificate of purchase at tax sale is a sufficient evidence of title as that upon which the administrator and heirs of Edwards could base their defense, and adduce their evidence of adverse possession, since the statute makes the tax sale, and not the tax deed, the investiture of title in the purchaser, in so far as concerns controversies like this.” And in Crill v. Hudson, 71 Ark. 390, 74 S. W. 299, it was held “that actual possession of part of a tract purchased at tax sale held under the certificate of purchase was sufficient to sustain a suit for trespass committed on a part of the tract not in actual occupancy.” The quoted language is that of Judge McColloch in Haggart v. Ranney, 73 Ark. 344, 84 S. W. 703, where the holding in Worthen v. Fletcher was also distinguished and not overruled. In Townsend v. Penrose, 84 Ark. 316, 105 S. W. 588, it was held that a tax sale certificate of purchase was not color of title within the meaning of § 5057 of Kirby’s Digest, now § 8920 of Pope’s Digest. We, therefore, hold that' the tax sale certificate of purchase in this case, accompanied by actual possession of all or a part of the land in controversy, is sufficient evidence of title upon which appellee could base a claim of adverse possession under the seven year statute of limitation, § 8918 of Pope’s Digest, and the payment of all tlm taxes thereafter in appellee’s name is a strong corroborative circumstance of his.possession and ownership.
We do not think the fact that Mr. Cole advised Bishop that the best way to get the title out of Ike Smith was to let the land forfeit and buy it in in the name of appellee was a fraud upon appellant. Neither she nor her husband Bishop ever had any title to the land. Appellant could not claim any dower interest in the land, for the reason her husband had no title, was never “seized of an estate of inheritance” in said land. Section 4396, Pope’s Digest. Being a stranger to the title and in possession with her husband as tenant of appellee, she is in no position to question the title of appellee. We think the evidence conclusive that Bishop was in possession as a tenant of appellee, else why did he pay the taxes in appellee’s name from 1929 to his death. At least we cannot say the finding of the court is against the preponderance of the evidence.
Whether Ike Smith’s heirs, if he had any, are barred, is not here determined. As between appellant and appellee, we agree with the trial court that appellee is the owner, entitled to the rents and profits and to a writ of possession, if he so elects.
Affirmed. | [
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Grieein Smith, C. J.
Judge W. H. Norsworthy of Arkansas county, in the absence of Circuit Judge W. J. Waggoner and Chancellor Harry T. Wooldridge, enjoined John Gunnell as circuit clerk from issuing a writ of execution on a certificate of indebtedness filed in compliance with § 10 of Act 386, approved March '26, 1941.
It is contended by the commissioner of revenues that the certificate followed a finding that C. W. Trotter owed $257.65 he should have collected as tax on merchandise sold through his food market at Stuttgart. A ten percent penalty was added. Subsection (b), § 9, Act 386. The sheriff was also enjoined from levying on the taxpayer’s property if a writ of execution should issue.
The certificate was filed September 11, 1942. Judge Norsworthy’s injunction is dated September 14. Subsequently the chancellor issued a similar order.
Certiorari has been resorted to by the commissioner of revenues in an effort to have the injunction dissolved' on the ground that the lower court’s actions were void.
Contentions are, (1) that the supreme court is without jurisdiction. (2) The finding is void (a) because it is violative of $ 1 of art. 7 of the constitution in that the certificate under Act 386, issued without judicial determination, is given judgment force, (b) Act 386 is violative of Amendment Ño. 16 to the constitution in that trial by jury is denied. (3) Certiorari does not lie when the right of appeal exists. (4) It is denied that Trotter was accorded a hearing in response to his request, but if it should be held there had been a hearing, a letter dated August 27 was received, content of which justified Trotter in believing the matter was being held open. (5) If it be conceded that a hearing was had August 24, still the certificate was issued September 10 and filed a day later. Act 386 provides thirty days for appeal to the chancery court of Pulaski county. Since but eighteen days intervened between hearing and issuance of the certificate, it was prematurely filed.
First. — The commissioner, as petitioner, had the right of appeal. Act 355, approved March 25, 1937.
Certiorari is a remedy to quash irregular proceedings, “but only for errors apparent on the face of the record; not to look beyond the record to ascertain the actual merits of a controversy or to control discretion or to review a finding upon facts.” Lindsay v. Lindley, 20 Ark. 573. In Burgett v. Apperson, 52 Ark. 213, 12 S. W. 559, it was held that certiorari may be used to correct erroneous proceedings, “as well as the want of jurisdiction.” Errors in the assumption of jurisdiction are properly correctible on certiorari; but where errors relate to conclusions of law in deciding the case on its merits, they can only be corrected on appeal, unless the party is prevented from appealing by unavoidable circumstances. Flournoy v. Payne, 28 Ark. 87.
A more liberal view was expressed in Williamson v. Mitchell Auto Co., 181 Ark. 693, 27 S. W. 2d 96, where it was said that where time for appeal has not expired, the Supreme Court will treat an application for a writ of certiorari as an appeal.
In the instant case the parties have gone beyond the record through introduction of letters and by statements; hence the proceeding will be treated as an appeal.
Second. — (a) The tax is fixed by the general assembly as distinguished from an act of the commissioner. It was the merchant’s duty to collect and pay over, and to keep accurate records “. . . .of gross receipts or gross proceeds of sales taxable and nontaxable.” It is clear this was not done. It therefore devolved upon the commissioner to have his auditors ascertain the indebtedness in the most practicable manner expressly or impliedly authorized by Act 386. When this was done and Trotter was afforded an opportunity to refute the claim thus determined, and he did not do so because, as he admitted in correspondence, records could not be gotten, the legislative direction to the commissioner to file his certificate became a mandate and a lien attached from the time the certificate was entered.
(b) This is not a common law action wherein trial by jury is guaranteed, nor is there a statutory provision according such right. Intricate accounting is involved, and a court of chancery is not without jurisdiction.
Third. — Trotter was in the commissioner’s office for a hearing either August 24 or August 26. There is some uncertainty as to the exact date. A letter written on behalf of the commissioner August 26 begins with the statement: “Within a few moments after you left the office this morning,- Mr. Hardin returned and I took your file to him for investigation. . . .” Thereafter Trotter wrote that he could not supply copies of invoices. Evidence that he was misled into thinking another hearing would be accorded is not sufficient to justify an order upholding the injunction on the ground that he was deceived.
Fourth. — Trotter had thirty days within which to appeal to the chancery court of Pulaski county. Hardin, Commissioner, v. Gautney, Chancellor, ante, p. 723, 164 S. W. 2d 427. The issuance of the certificate of indebtedness’ within that time- was proper. Under Act 386 the amount fixed by the commissioner should have been paid and an action brought for refund of any excess shown to have been collected. This is not a suit against the state. A fund of $2,500 was created by Act 219, approved March 25, 1941, for payment of claims of this character and an unexpended balance was available (and is still available) to satisfy a demand much larger than the one in controversy.
Had an appeal been taken in the manner provided by Act 386, the certificate would have been automatically superseded.
The injunction is dissolved.
Govan v. Jackson, 32 Ark. 553; Minnequa Cooperage Company v. Hendricks, Judge, 130 Ark. 264, 197 S. W. 280, L. R. A. 1918D, 477, Ann. Cas. 1918D, 687. | [
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Kirby, J.
This suit was brought by Warnock Harris, a minor, by next friend, to recover a sum of money deposited by him in the appellee bank.
The undisputed testimony shows that appellant, a minor, 19 years of age, made a deposit of $39 in the appellee bank in August, 1924, for which he was given a deposit slip or ticket; thereafter he returned to the bank and talked with the officials, and desired to draw some of his money out; that the bank teller told him his account was closed and his money had already been drawn out. He inquired “How come?” and stated he had not drawn any money out. An examination of the cheek disclosed that it was a forgery, for which Claude Burton had already been arrested. The bank refused to pay him the money, and pleaded a release from liability executed by him on September 5, reading as follows:
“Magnolia, Arkansas, September 5, 1924.
“Owing to the fact that Claude Burton and his mother has agreed to refund the money that Claude Burton drew from my account at the Columbia County Bank, I agree to release the Columbia 'County Bank from any responsibility in regard to this money.
“Warnock Harris.
“Witness: R. C. Runyan.”
He denied having given any release, and stated that no money had been returned to him by Claude Burton, his mother, or any one else.- He explained the writing by saying, after the boy had drawn the money, he asked the bank for it, and was told that he could not get it until after the trial, and also that the boy’s mother wanted to see him and fix the matter up; that she later saw him, and he went with her to the bank, where she asked the teller if they had told appellant that she wanted to see him, and he .replied “Yes,” “and they told her if she would pay the money back they would release the boy, and the banker asked me if that would be all right, and I said 'Yes, sir, all I want is my money.’ ” He stated he had never received any money; that the bank refused to pay him, and told him that he could not get it until after the trial, and that the boy pleaded guilty.
One of the employees in the bank stated that he had never seen the appellant until he came in the bank and made the deposit of $39; that another boy, Claude Burton, was with him at the time, and that they stood out in front of the window counting the money, and “Warnock Harris brought the money and said that he wanted it in his name, and the witness wrote out 'a deposit slip to Warnock Harris for $39; that he also witnessed the instrument identified as a release; that the money was paid out by the bank during his absence from the bank, and, when Harris came in after his money, he looked in the books and told him that the account was closed,' that he had already got the money, and he replied no, he had not. Several days later he and Claude Burton’s mother came into the bank with George Harris, and the written agreement was made about the release of the bank, as set out above.
Appellant requested a peremptory instruction and three others, all of which were refused, and the court gave a peremptory instruction for appellee, directing a verdict in its favor, and from the judgment this appeal is prosecuted.
The undisputed testimony shows that the appellant deposited his money in the bank, which refused to return it to him on demand, and claimed a release from liability to its payment, upon suit brought, which it insists was valid under the banking laws, notwithstanding appellant was a minor at the time of its execution.
Section 701, 0. & M. Digest of the Statutes, provides: “ * * * when any deposit is made in any bank by a person who is a minor, it may pay to such depositor such sums as may be due him or her, and the receipt or check of such minor shall be in all respects valid in law.” This statute only relieves against the disability of the minor depositor, allowing him to make a valid receipt for return of his money withdrawn from the bank by check, and necessarily does not extend to validating such an instrument as this so-called release purports to be. It is neither a check nor receipt for money due or paid the minor, but at most only an agreement to release the bank from “responsibility in regard to this money,” in view of the fact that Claude Burton and his mother had agreed to refund the money drawn from his account at the bank on the forged check, which admittedly was never done.
The court erred in not directing a verdict upon the undisputed testimony for appellant upon his request for a peremptory instruction, and 'in directing the verdict against him. For these errors the judgment is reversed, and judgment will be entered here in appellant’s favor for the amount of the deposit, with interest. It' is so ordered. | [
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Humphreys, J.
On October 10, 1941, Marcus Fietz, prosecuting attorney within and for the judicial circuit of the state of Arkansas, of which Mississippi county is a part, filed an information against appellant in the circuit court of Mississippi county, Osceola district, charging him with larceny of two mules on the 8th day of June, 1941, in said district and county, of the value of $300, property of Clem Whistle.
The cause was tried by a jury on the 21st day of October, 1941, under correct instructions on the testimony introduced by appellee and appellant, resulting in a conviction as charged in the information and his punishment was fixed at five years in the state penitentiary, from which an appeal has been duly prosecuted to this court.
The testimony introduced by appellee in support of the conviction was circumstantial. Appellant did not testify himself nor introduce any evidence in the trial of the cause and relies for a reversal of the judgment upon the alleged insufficiency of the state’s testimony to support the verdict of conviction.
The applicable rule of law is that this court will not, on appeal, disturb a verdict of a jury if there is any substantial evidence in the record supporting same. It was said by this court in the case of West v. State, 196 Ark. 763, 120 S. W. 2d 26, that: “. . . it is also a well-settled rule that the evidence at the trial will, on appeal, be viewed in the light most favorable to the appellee, and if there is any substantial evidence to support the verdict of the jury, it will be sustained.”
Appellant contends that the testimony in the instant case is not substantial because based upon circumstantial evidence alone. It was said by this court in Scott v. State, 180 Ark. 408, 21 S. W. 2d 186, that; “They [re ferring to the jury] are bound by their oaths to render a verdict upon all the evidence, and the law makes no distinction between direct evidence of a fact and evidence of circumstances from which the existence of the fact may be inferred.”
The record reflects by the undisputed testimony that two mules belonging to Clem Whistle were stolen out of his lot on his farm on the night of June 8, 1941, being taken out of the lot across the farm for about one mile to a highwaju This-was shown by the tracks of the mules and the tracks of the person with them. The tracks were easily followed because they were made after the rain that night. The tracks stopped at the bank adjoining* the highway. At this point truck tracks were made in the bank by a truck with dual rear wheels. One set of the rear wheels did not have any tires on them and they made cut marks on the bank. No mule tracks could be found beyond that point. The reasonable inference is that the mules were loaded into a truck at this point, or bank, which had backed into the bank adjacent to the highway.
Manual Toles, who lived on Whistle’s farm and who worked for him, testified that as he returned to the farm on the night the mules were stolen he met a truck with tandem axles and with tires off of the back set of dual wheels about one'quarter of a mile from the barn where the mules were.
Hayward Hughes testified that he saw appellant on the Sunday afternoon before the mules were stolen Sunt day night in a new Chevrolet truck with a green body; that it had dual wheels and an extra set of dual wheels behind it; that he went to a picture show that Sunday night, and as he was going back home he met this same truck about a quarter of a mile from Whistle’s place coming away from the direction of the mule barn; that the wheels of the-truck he saw that night all had tires on them except one pair; that the truck had sideboards on it which looked to be six or seven feet high and were solid, and there were no cracks in the end gate.
Paul Tucker, a constable in Craighead’ county, testified that he arrested appellant several days after the mules were stolen, and appellant asked him to let him drive his truck down to his father’s home and leave it; that the tires were off of one set of the dual wheels when he attempted to arrest appellant; that instead of taking the truck down to his father’s home he absconded with the truck while he (witness) was putting out a fire that started in his car about the time he was attempting to arrest appellant; that appellant was not found for six or seven weeks when he was finally picked up in Paragould.
Hale Jackson, sheriff of Mississippi county, testified that he wrent to Detroit, Michigan, looking for appellant and sent word to the officers of Paragould to arrest him if found there.
There is no question that the mules were stolen on Sunday night by someone and it is reasonably inferable that they were loaded into a truck about a mile from the barn which had backed up to the bank adjacent to the highway. The positive evidence shows that this truck made indentations on the bank which reflected that two tires were off two of the back wheels. The positive evidence also shows that appellant was seen in a truck of that kind on Sunday afternoon before the mules were stolen on Sunday night with the tires off of two of the back wheels; that a truck of the same description was seen Sunday night about a quarter of a mile from the barn with high sideboards on it and with no cracks in the end gate. The positive evidence also shows that when appellant was first apprehended by the constable he was in a truck of the same kind, that is, one with the tires off of two of the rear wheels. The positive evidence also shows that he asked permission to take the truck to his father’s home, but instead of doing so he absconded with the truck while the constable was putting out a fire in his own car, which prevented him from following appellant, and that appellant could not be found and was not arrested until six or seven weeks thereafter.
We think the circumstances detailed above are substantial and sufficient to connect appellant with the crime charged.
No error appearing, the judgment is affirmed. | [
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Kirby, J.
Appellant brought this suit, after the expiration of the term, to quash, set aside and vacate a judgment for $686 obtained by appellee against it in the Fulton Circuit Court on August 26, 1925.
The petition alleged that the judgment was obtained without proper service, rendered without jurisdiction and without notice to the district of the pendency of the suit until after the expiration of the term at which it was rendered. It was alleged that the district was created by special act 473 of the Acts of 1917.
“That on the 26th of August, 1925, the defendant obtained a judgment in this court against the plaintiff for the sum of $686 in a suit by the defendant against W. I. Davis Construction Company, in which it took judgment over, as it claimed, against the plaintiff, copy of which judgment is hereto attached, marked Exhibit A and made a part of this, complaint. Plaintiff states that said judgment was taken against it without any proper service, and it had no knowledge that same had been taken until recently, when a garnishment was issued on said judg-' ment against the collector of Pulton County, who had in his hands funds of the plaintiff”; that the court had no jurisdiction to render judgment under the pleadings in the case, and was without jurisdiction also, because, under the act of its creation, the district could only be sued in Izard County, and “plaintiff states that it was not indebted to the ~W. I. Davis Construction Company in any sum, nor to the defendant, Home Telephone Company, and it has a complete and full defense to said cause.”
A general demurrer was interposed to this petition by'the appellee compair^, which the court sustained, its judgment reciting that the cause was heard on the judg’„ment and pleadings in the case of Home Telephone Co. et al. v. W. I. Davis Construction Co., heretofore pending in this 'court, and which judgment is sought to he set aside.
The court, after hearing said demurrer and examining said judgment and pleading, is of opinion that plaintiff’s remedy, if any, is by certiorari and not by proceeding under § 6290, C. & M. Digest, to vacate said judgment, and that the demurrer should he sustained. The plaintiff excepted to the ruling of the court, and, declining to plead further, the complaint was dismissed, from which judgment this appeal is prosecuted.
The judgment sought to be quashed or vacated, attached to the petition as an exhibit, recites that on the 26th day of August, 1925, “the plaintiff, Home Telephone Company, appeared in person and by its, attorneys, H. A. Northeutt and Oscar E. Ellis, and announced ready for trial, and the defendant, W. I. Davis Construction Company, appeared by its attorneys, G-. T. Humphries and J. M. Burrow, and the North Arkansas Highway Improvement District No. 2 failed to appear, and made default, although having been legally served with summons for more than 20 days before the convening of this court.”
The pleading’s upon which this judgment was rendered show that the suit was brought by the telephone company against the construction company in the Fulton Circuit Court for damages to the telephone line and poles of the plaintiff by the defendant in the construction of the highway leading from Batesville to Mammoth Spring, on the section thereof leading from Mammoth Spring to Salem, Arkansas; that defendant company was working and building the road or highway under a contract with the North Arkansas Highway Improvement District No. '2, and that the company had negligently and unlawfully destroyed the telephone line in the construction of the highway, to the damage of the plaintiff. On motion the complaint was made more specific.
The defendant, W. I. Davis, Construction Company, moved to have the highway improvement district made a party, alleging that the commissioners in charge of the district had selected the route for the construction of the highway, and, after the survey was made and approved and notice given for all parties owning property along the right-of-way to appear and make their claim for damages, had contracted with the W. I. Davis Construction Company to build the highway, and put it in possession thereof; that, if any wrong was done to plaintiff, it consisted in the action taken by the commissioners of the improvement district, while acting under the authority of the State Highway Department; alleged that, under the above statement and conditions, the defendant should not be liable to the plaintiff in any sum, and, if the commissioners were made parties, “that they can answer and show wherein this defendant is not liable to plaintiff in any sum whatever.”
Thereupon the district filed a response to said motion, alleging that they had fully and completely paid and remunerated the said W. I. Davis for the work alleged to have been done by the plaintiff, Home Telephone Company, as mentioned and set out in said party’s original and amended complaints, and prayed to be discharged, with costs. This response was filed by Oscar E. Ellis and PI. A. Northcutt, the attorneys who brought suit for the telephone company against the Davis Construction Company.
The court was without jurisdiction to bring 'the highway district into court in Fulton County, its domicile being fixed by law in Izard County, and service being required to be had in all suits against it by service had on the commissioner of that county. Section 4, act 473 of the Acts of 1917.
When attorneys of the district,. the same attorneys who represented plaintiff in the action against it, entered the appearance of the district, it was alleged in the response that the district had fully and completely paid and remunerated the contractor “for the work alleged to have been done by the plaintiff, Home Telephone Company, as mentioned and set out in said party’s original and amended complaint.”
Notwithstanding this answer, denying any liability on the part of the district to the contractor or the Home Telephone Company, the judgment recites that the district failed to appear, and made default, and “thereupon the plaintiff and defendant, W. I. Davis Construction Company, agreed in open court that a judgment should be entered in favor of the plaintiff in the sum of $686, and that the said W. I. Davis Construction Company took judgment over against North Arkansas Highway Improvement District No. 2 by default in the sum of $686."
Judgment was then rendered that the plaintiff Home Telephone Company have judgment against the Davis Construction Company in the sum of $686, that W. I. Davis Construction Company should have judgment against the North Arkansas Highway Improvement District No. 2 in the sum of $686, etc.
When the district came into court by its attorneys and filed an answer, showing that it was not liable to the plaintiff for any damage done by the contractor, having already paid him in full for the work done, the court should not have rendered judgment against the district by default.
The commissioners had the right to rely upon their answer and response, which showed a complete defense to any suit against it by the contractor, and certainly to any allegations of the complaint for damages alleged to have been caused by it or its contractor in the construction of the highway. The complaint itself did not allege a cause of action or liability on the part of the district for the damages alleged to have been done by the contractor in the construction of the highway, and the response or answer of the. district showed it was not liable for any such damages. Such being the case, the allegations of the petitions, with the inferences arising from the recitals of the judgment sought to be set aside and the pleadings upon which it was rendered, exhibits thereto, are sufficient to show the judgment was rendered by mistake, or by fraud practiced by the successful party in obtaining it..
If such pleading, with the inferences arising from the allegations, are to be considered as. stating a cause of action defectively, it should have been corrected by motion to make more definite and certain, rather than by sustaining a demurrer holding it insufficient, which was erroneously done.
It can make no difference that the construction company was not made a party to the- proceedings to vacate the 'judgment, since the allegations showed that the judgment had been rendered against the district, which was proceeding to enforce it against the appellant, and that the construction company had no interest therein. Neither could a want of proper verification of the motion or complaint be reached or taken advantage of by demurrer, nor can the question be raised here for the first time.
The court erred in not so holding, and the judgment is reversed, and the cause remanded with directions to overrule the demurrer, and for further proceedings in accordance with law and not inconsistent with this opinion. | [
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Holt, J.
December 6, 1941, appellee, James Bock-man, filed suit for divorce in the Phillips chancery court. Separation without cohabitation for three years, in accordance with the seventh subdivision of § 2 of Act 20 of 1939, was the only ground for divorce alleged by appellee. Appellant answered, specifically denying separation within the meaning of the statute, and asked that appellee’s complaint be dismissed for-want of equity, and for attorney’s fees. From a decree granting appellee a divorce, comes this appeal.
It is undisputed that the parties here were married December 24, 1925, and lived together as husband and wife in the city of New York until May 30, 1937. A son, called Sandy, now about 14 years of age, was born to this union.
Mrs. Bookman testified that her husband, appellee, who is a physician, left New York for Arkansas May 30, 1937, with the understanding that if he were not permitted to practice medicine in Arkansas he would return to New York and enter some other business, but if per mitted to practice his profession in Arkansas he would send for appellant and his son, whom he had left in New York with appellant, just as soon as he had established himself. She further testified that she and the plaintiff corresponded and that it was her intention to follow him to Arkansas and live with appellee when he should send for her after becoming established. Mrs. Bookman was employed in New York City. Five letters which Mrs. Bookman received from appellee after he came to Arkansas were put in evidence as part of her testimony. These letters were .written from West Helena, Arkansas, and dated August 24, 1939, January 10, 1940, June 24, 1940, July 6, 1940, and July 13, 1940, respectively. The letter of January 10, 1940, is as follows: “Dear Mary: Received your most welcome letter, sure I will try my utmost to pay anything of Sandys. Enclosed please find $50 money order, the best I can do at present (things are very slow at present). Say Mary send me some kind of a package containing some kind of good food and delieatesens (if you care to send it, send it special delivery). Boy, this food out here stinks on ice. Kiss Sandy for me, J. P.S. The reason for special delivery is there is no delay on this end,” and the letter of July 13, 1940, is in this language: “Mary: You know why I joined the national guard (medical reserve) I am the only medical examiner in my county (Phillips). Because I have a chance to get nearer to North, under Army requirements. Some of the doctors have been notified, but I don’t think my group has been notified for about 2 weeks. Capt. Coats is trying to get me a furlough. I -will know within a week. Sandy is doing fine, and its a great pleasure for me to have him here. Jim.”
November 22,1940, Mrs. Bookman brought suit in the Phillips chancery court against appellee, her husband, for maintenance of herself and child. Appellee contested this suit, denying Mrs. Bookman’s right to maintenance as prayed, and filed a cross-complaint for a divorce alleging separation of three years under the statute, supra. In that suit the trial court denied appellee, Bock-man, a divorce from appellant on his cross-complaint, awarded the custody of the child to Mrs. Bookman and $80 per month maintenance. On appeal we affirmed the decree of the lower court, denying a divorce to appellee, and after reducing the maintenance allowance from $80 to $30 per month, affirmed that part of the decree as so modified. See Bockman v. Bockman, 202 Ark. 585, 151 S. W. 2d 99.
In the instant case, appellee, Bookman, testified that he and appellant separated May 30, 1937, at which time she deserted him and has remained away from him since; that he has tried to induce her to come to Arkansas and live with him, but that she had consistently refused to do so, and that they have been separated for more than three years.
A young lady employed in the office of appellee testified that Mr. and Mrs. Bookman have not lived together for more than three years. It was the contention of appellee in the court below, and argued here on appeal, that he and the appellant have lived separate and apart for three consecutive years without cohabitation, and that, under the provisions of paragraph seven of § 2 of Act 20 of 1939, he is entitled to a divorce.
Appellant on the other hand contends, that on the evidence presented, she and appellee have not been separated for three years in such sense as would, within the terms of the statute, supra, entitle appellee to a divorce. The section of the statute, supra, involved here is in this language: “Where either husband or wife have lived separate and apart from the other for three consecutive years, without cohabitation, the court shall grant an absolute decree of divorce at the suit of either party, whether such separation was the voluntary act or by the mutual consent of the parties, and the question of who is the injured party shall be considered only in the settlement of the property rights of the parties and the question of alimony. ’ ’ In construing this section of the statute this court in the recent case of Serio v. Serio, 201 Ark. 11, 143 S. W. 2d 1097, said: “Our construction of the statute is that it assumes that the period of living apart without cohabitation for three years must have been the conscious act of both parties in order to entitle one of the parties to a divorce.” Bouvier defines cohabi tation: “It does not necessarily mean living together under the same roof; a man may he absent on business, . . . and yet be cohabiting in the broader sense.”
On the former appeal (Bockman v. Bockman, 202 Ark. 585, 151 S. W. 2d 99) we said: “Appellant assumes and argues that when he left for "West Helena with the understanding that after he established, himself, appellee and his son would come to him, it constituted a separation as of date May 30,1937, by mutual consent or voluntary act, and since they had not actually lived together for more than three years before he filed his cross-complaint, he was entitled to a divorce under § 7 of the act. This would be true if they separated as husband and wife "voluntarily or by mutual consent or for any other reason, when he came to West Helena. According to the testimony of both of them there was no separation as husband and wife at that time. The relationship of husband and wife was to continue and did continue until all of a sudden he ceased to write to her. They regarded themselves as husband and wife until they ceased to correspond with each other. The record does not show when the separation as husband and wife began and that it had continued for three consecutive years from that date prior to filing his cross-complaint. He did not meet this burden ánd thereby bring himself within the terms of the act. ’ ’
We think the preponderance of the testimony supports appellant’s contention that there was no agreement, understanding or conscious, knowledge on the part of appellant, Mrs. Bookman, that she and her husband were separating within the meaning of the statute whén he came to Arkansas in May, 1937, seeking a new location. Her testimony is positive that it was understood, and that her intention was to follow her husband to his new location after he became established and was ready for her to join him. The letters in evidence are of a friendly nature and are not sufficient to inform appellant of any intention in appellee’s mind that he had separated from Mrs. Bookman within the meaning of the statute. While it is true that these parties have lived separate and apart for more than three years, we do not think the legislature, when it enacted the statute in question, intended, under its terms, that all that was necessary to be shown by either party was that they had lived separate and apart for three years. We think the act requires proof not only that they had lived separate and apart for three years, but in addition that they lived separate and apart without cohabitation in its broader sense as defined by Bouvier, supra, and that the living separate and apart without cohabitation for three years, must have been with the understanding of both parties, or their conscious act.
It is our view that appellee has failed to make this showing and that the trial court erred in granting a divorce to him. For the error indicated the decree is reversed and the cause remanded with directions to dismiss appellee’s complaint for want of equity, and that appellee pay appellant $50, attorney’s fee, and to continue the payment of the monthly allowance of $30.
MoHaney, J., dissents. | [
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J. Free Jones, Justice.
This appeal is from a judgment of the Pulaski County Circuit Court and arises from litigation growing out of the construction of the Little Rock Public Library building because of defect in tbe construction of concrete floors. H. C. Enterprise, Inc. was the general contractor for the construction of the building; J. N. Heiskell et al, constituted the Library Board of Trustees, and Guy Swaim and James C. Well-boim, d/b/a Swaim, Allen, Wellborn '& Associates, were the architects for the building.
In order to permit work on the various levels of the building to proceed without damage to finished floors, the plans and specifications prepared by the Architects called for the concrete floors to be poured in two separate slabs or layers. The base slab, containing coarse aggregate, was to be poured in forms and was to be from four to five inches thick. The base slab was designed to have poured on top of it the second layer, containing fine aggregate, and to be one and one-half inches thick. These two slabs or layers will hereafter be referred to as “base slab” and “fill slab.” The fill slab is designated “fill or mortar setting bed” in the specifications, and was to receive a vinyl tile finish floor covering. The defect giving rise to this litigation occurred between the two slabs of concrete.
The base slab was first poured by the Contractor and about 18 months later the fill slab was poured. After both slabs were poured, the fill slab started cracking and separating from the base slab and it was found that the fill slab had not bonded with, or adhered to, the base slab, and it became necessary to remove and replace the fill slab. An intensive investigation was conducted to determine the cause of the difficulty, which included reports by several testing laboratories employed by various parties.
Finally, in August of 1962, the Architects gave specific written instructions to the Contractor describing the manner of removal and replacement of the fill slab in the affected area. The Contractor replied in October of 1962, that a record of all labor, material and equipment costs was being kept on a time and material basis and as the original base slab and fill slab were installed in a workmanlike manner, this constituted a change in the work and requested a written change order under the contract. The Architects responded in November 1962, that in light of the laboratory testing reports, they felt the obligation of replacing the fill was on the Contractor and refused to issue a change order, requesting that the Contractor proceed under Article 19 of the contract whereby the Contractor must replace all work condemned as not in conformance with the contract, and that if this was not proceeded with immediately, an appeal would be made to the Contractor’s bonding company.
The Contractor proceeded with replacement of the fill without further correspondence until August 1965, at which time he requested and was refused payment for the work by the Architects.
Since the litigation involved the pouring and finishing of the two slabs, the specifications pertaining to them are fully set out as follows:
“Interior Slabs to Heceive Fill or Mortar Setting Bed shall be finished by tamping the concrete with special tools to force the coarse aggregate away from the surface, and screeding with straight edges to bring the surface to the required finish plane.
“Interior Slabs — that are to receive a finish floor covering (this -does not include ceramic tile covering) shall be finished by tamping the concrete with special tools to force the coarse aggregate away from the surface, then screeding and floating with straight edges to bring the surface to the required finish level. While the concrete is still green but sufficiently hardened to bear a man’s weight without deep imprint, it shall be wood floated to a true and even plane with no coarse aggregate visible. Sufficient pressure shall be used on the wood floats to bring moisture to the surface. After the surface moisture has disappeared, surfaces shall he steel-trowelled to a smooth, even impervious finish, free from trowel marks. After the cement has set enough to ring the trowel the surface of all slabs shall he given a second steel trowelling to a burnished finish. Where fill is applied and will receive a floor covering (not ceramic tile) fill shall be finished smooth in like manner.”
On January 14, 1966, the Contractor requested arbitration of its right to compensation under the contract, and the Library Board denied the request. The Contractor then brought suit against the directors for the additional cost of labor and materials in taking up and replacing the fill slab and the Architects were made third parties defendant.
Appellants argue that the plans and specifications called for a bonding of the two slabs by implication, and that the failure to secure a bond was the result of improper workmanship and failure of the Contractor to follow the plans and specifications. Appellee contends that the plans and specifications do not call for a bond and that the plans and specifications were followed explicitly in a good workmanship manner. All the parties seem to recognize that the trouble arose from the failure of the two slabs of concrete to bond with each other; that this resulted in the cracking of the fill slab and that it was necessary to remove and replace the fill slab. The Architects contended that the Contractor was negligent in pouring, curing, and finishing the concrete, and the Contractor contended that he poured, cured, and finished the concrete according to the plans and specifications prepared by the Architects and under the visual observation of the Architects. It was the Contractor’s contention that the fault lay in the plans and specifications prepared by the Architects and in the di rect instructions of the Architects during the course of construction.
A jury trial resulted in a judgment in favor of the 'Contractor against the Trustees for $50,201.50 with judgment over in favor of the Trustees against the architects for the same amount.
The Architects and the Trustees are joint appellants here and they rely on the following points for reversal:
“Under the terms of the contract, the contractor cannot recover against the owner.
There is no competent evidence that the plans and specifications were deficient in any manner.
The undisputed evidence shows that the original work was not performed by the contractor in accordance with the plans and specifications.
The contractor is estopped to claim compensation and has waived any claim.
The Court erred in refusing to declare a mistrial when insurance was improperly brought to the attention of the jury.
The Court erred in admitting certain exhibits and testimony concerning change orders.”
As to point one, it is not disputed that the contract provides for changes in the work to be approved in writing prior to their execution. Appellee admits that this provision was not complied with, but argues that strict compliance with this provision was waived by appellants through course of conduct. As to this course of conduct, appellee produced exhibits and testimony tending to prove that on many occasions the Architects gave oral directions to the appellee to do certain work and after the work had been completed, the Architects would have the Library Board to pay for it. Appellants disputed this evidence as not being relevant to remedial work and that in this instance, the Architects specifically stated, prior to the execution of the work, that a change order would not be issued and thereby did not waive, but refused to waive, the written order. In addition to the exhibits and testimony pertaining to waiver, the appellee contends that it proceeded with the work in good faith, relying on the provision in the contract for arbitration of any of the Architects’ decisions.
Thus, a fact question was properly submitted to the jury on this issue and there was substantial evidence from which the jury could have found in favor of the Contractor, especially in light of the desire for completion of this public building as speedily as possible and within the time limit of the contract, and the threat by the Architects of proceeding against appellee’s bonding "company for delay. This court has upheld waiver in similar circumstances in Rivercliff Co., Inc. v. Linebarger, 223 Ark. 105, 264 S. W. 2d 842, when it was stated:
“For a second ground, appellant contends that the Master and the trial court should not have made any allowance to the Contractor because the extra work was not authorized in accordance with the terms of the contract. This contention appears to be supported by the terms of the contract, which provides that extras must be approved in writing prior to execution. This provision was not complied with but it does not constitute a defense available to appellant, because, as we hold, a strict compliance with this provision of the contract was waived by appellant in this instance. It is not disputed that the extra excavation was done with the knowledge and at the direction of Smith who was not only the architect supervising the work for Rivercliff but was also a part owner of the appellant corporation. From his testimony we gather that he refused to approve an allowance for extras mainly because he did not think the Contractor was entitled to anything as a result of the changed method of constructing the foundation. It appears that other changes in construction had been made and paid for where no written change order had been previously issued. Although it was shown that several such changes had been made and paid for during the construction of the four buildings, yet Mr. Smith testified that only one written change order had been made.”
Appellants’ second and third points involve the same problems and will be discussed together. In total effect, their contention is that there is no evidence that the plans and specifications were deficient, but that the evidence shows that they were not followed by the appellee.
The opinion reports from laboratory testing experts were offered in evidence by stipulation. Master Builders reported:
“* * * Any excess water in the concrete exhibited itself as bleeding water since relatively little of it was absorbed by the forms or, lost through it. This caused segregation to occur which in turn resulted in the accumulation of a highly carbonated cement paste layer on the top surface. Insufficient curing also helped in detrimental carbonation of the top layer in the base concrete.
Secondly, the surface of the base concrete was not scarified enough to expose good concrete cmd individual grains of aggregate and cement. * * *
The placement of a lightweight topping over a hardened base concrete is difficult at best since shrinkage stresses in the topping may cause trouble. In replacing the topping, the base slab will have to be physically scarified to sound concrete.” (Emphasis supplied.)
Masters Builders concluded:
“* * * Disruption of the bond between the base slab and the topping resulted from differential shrinkage of the two concretes, the topping being subject to the greater shrinkage subsequent to completion of the floor. * * * [T]he concrete of the base slab was not adequately cured or protected from drying so that a layer of weak, porous mortar exists in the upper 1/8 to 1/4 inch of the base slab. ’ ’
Oklahoma Testing Laboratory found and concluded:
u* * * wbite material was noted on the bottom of the two separate sections of lightweight concrete but none was noted on the interfaces of the sections of the cores. * * * An analysis was made of the white material. From this analysis it was apparently cement. * * * According to our understanding a period of eighteen months elapsed between these pours. According to our examination of the samples it would be our opinion that the lack of bond was due to one or a combination of the following:
1. Lack of proper surface preparation. An examination of the interfaces of the cores, and of the slabs submitted, shows the concrete to have been fairly smooth. On concrete of this age, to insure good bond, we believe the floor should have been, roughened by some method.”
St. Louis Testing Laboratories reported:
“* * * The unsound material at the top of the base concrete is, in our opinion, a major factor for the lack of bond between the base concrete and tbe lightweight concrete on the 1st and 2nd floors.
The canse for the nnsonnd material at the top of the base concrete may be attributed to three factors or a combination of these three factors — excessive water at top surface, excessive vibration, and improper curing.”
After a study of these reports, the appellant Architects advised appellee as follows:
“It is this office’s understanding, after a careful reading of these reports, that the major factor involved in the failure of the topping to bond with the base slab was the presence of a layer of unsound material in the top of the base slab. The laboratories recommended that this unsound material be removed by scarifying the base slab with a Ten-nant machine; cleaning the base slab carefully; saturating the base slab; brooming in a grout coat immediately ahead of placement of topping. * * * You are hereby instructed to proceed with the installation of the lightweight concrete topping throughout the building in accordance with the following procedure :
1. Remove all remaining original topping from the base slab in all areas and rooms. (Test panel on 1st floor to remain.)
2. Remove all laitance and the weak, unsou/ud surface portion of the base slab by scarifying with Tennant machine so as to expose sound mortar and coarse aggregate. Areas of slab adjacent to walls and columns not scarified by machine shall • be scarified by hand.” (Emphasis supplied).
Appellants presented evidence that the appellee did not follow the plans and specifications as designed, and that, according to custom and practice, a bond is called for between sections of concrete in situations such as this, unless it is provided in the contract that a bond is. not desired and positive action to prevent a bond is provided in the contract. On the other hand, appellee pre--sented evidence that the. work was done in accordance with the plans and specifications and in a good workmanlike manner; that the Architects’ representatives were present and inspected the work without complaint; and that the contract specifically called for a bond at construction joints (not a part of the concrete slab or topping in question), but did not call for a bond between the base slab and the fill, or provide for a bonding agent between the two. Appellee presented evidence pointing out that the Architects’ plans and specifications specifically called for the coarse aggregate in the base slab to be tamped away from the surface, leaving a layer of laitance in the surface of the base slab, which together with the slurry coat of cement ordered by the Architects ’ representative, constituted the weak white substance found by the testing laboratories and that this was the cause of the trouble. Suffice it to say, there was ample evidence presented on both sides to present a jury question on the points here involved, and there was substantial evidence from which the jury could have decided in favor of appellee on these points as they did.
Appellants’ point four contends that when the Contractor was directed to proceed with the work at its own expense and the work was done without protest, then the Contractor is estopped from later claiming compensation, but it is noted that appellants did not plead es-toppel in its answer. This court has held that estoppel must generally be pleaded to be available as a defense to a claim. In the case of Jewell v. General Air Conditioning Corp., 226 Ark. 304, 289 S. W. 2d 881, it was stated:
“Since neither laches nor estoppel was pleaded as a defense below, the court was not afforded an op portunity to pass on such issues and the attempt to raise them for the first time on appeal comes too late. Gerard B. Lambert Co. v. Rogers, 161 Ark. 307, 255 S. W. 1089; Bell v. Lackie, 210 Ark. 1003, 198 S. W. 2d 725; Steele v. Steele, 214 Ark. 500, 216 S. W. 2d 875.”
Notwithstanding appellants’ failure to plead estop-pel, when the appellee advised that a record would be kept of the additional costs and requested the change order, the appellants were put on notice that appellee expected pay. When the Architects refused to issue the change order, stating that the obligation to replace the fill was on the Contractor, a standoff was presented as to who was responsible, and we are of the opinion that the appellee-was justified in proceeding with the work, not as a waiver of his rights to dispute the Architects’ decision, but in reliance on the contract provisions calling for arbitration of any decision by the Architects, as testified to by Mr. Carty. Appellants contend, however, that the appellee did not make his request for arbitration until three years after the Architects’ decision not to issue a change order, and thus not within a reasonable time as required by the contract. The contract provisions as to notice of arbitration states:
“The demand for arbitration shall be made within a reasonable time after the dispute has arisen; in no case, however, shall the demand be made later than the time of final payment. . .”
It is not disputed here that the demand for arbitration came prior to the final payment. Appellee testified that the delay was due to ascertaining the cost of doing the work, but in any event, the reasonableness of the delay was a question for the jury. It is noted, however, that arbitration was rejected by appellants without prejudice to appellee’s rights to litigate his claims for additional compensation. We are of the opinion that the evidence does not support appellants’ contention that appellee waived its rights to compensation.
Under point five, appellants contend that the trial court erred in refusing to declare a mistrial after the attorney for appellee asked the jurors, on voir dire examination, whether they held stock- in, or had any interest in, a liability insurance company. We have held that it is reversible error to unnecessarily bring to the attention of a jury that insurance is involved and that the issue in questioning, on voir dire, as to interests in insurance companies is one of good faith by the attorney questioning the prospective juror. See DeLong v. Green, 229 Ark. 100, 313 S. W. 2d 370; Dedmon v. Thalheimer, 226 Ark. 402, 290 S. W. 2d 16. In the case at bar, the question was a general one and was not pursued after a negative reply. There were insurance clauses in the contract that would have supported good faith in believing that insurance was involved, and the jury was affirmatively advised that no insurance was involved. Under these circumstances, we agree with the trial court that there was no prejudice involved, and we find no prejudicial error on the part of the trial court in refusing to declare a mistrial.
Under appellants’ sixth point, they contend that the trial court erred in allowing exhibits and testimony to be admitted to show a course of conduct whereby appellants had waived strict compliance with contract provisions calling for a written change order prior to execution of the work, and on several occasions had verbally authorized changes without written order and later had paid for the work. Appellants contend that this evidence was not relevant to remedial work and did not involve situations where the Architects had specifically refused to issue a change order prior to the work being done. The Architects demanded that the appellee scarify the base slab and replace the fill slab. The appellee requested a change order which was refused. The Architects threatened appellee on its bond and we think that the appellee made it plain that it would demand pay when it proceeded with the work. We are of the opinion that the change order requirement of the contract did not go to liability for the costs of the remedial work in this case. There was no dispute as to the amount, necessity, or nature of the work to he done in this case. The question was whether the appellee was liable for redoing work it should have done right in the first place, or whether the Architects had made the error and were liable for the additional costs. The Architects refused to indicate an acceptance of liability by making the change order, and although appellee did the work without the change order, it did so with the appellants under no misapprehensions that demand would be made for the cost of the work and without prejudice to ap-pellee’s right to sue for that amount. We conclude that if error was committed by the admission of the evidence pertaining to prior waiver of written change orders, such error was harmless to the appellants in this case.
To summarize — This entire case simply boils down to pouring a heavy aggregate concrete slab base for a floor in metal forms designed by the Architects under specifications requiring that this base be finished by tamping the concrete with special tools to force the coarse aggregate away from the surface, and screeding with straight edges to bring the surface to the required finish plane. When the coarse aggregate was forced away from the surface, a layer of laitance, referred to by some of the witnesses as “soup,” but actually water, cement and fine sand, was drawn to the surface and after screeding, either with a bull float or some other straight edge, this base slab, laitance and all, was seasoned in use (;as apparently planned) for an approximate period of 18 months. When all the parties were ready to install the fill slab, the hardened laitance was not removed and the surface of the base slab was not scarified to the aggregate or sound concrete. The base slab was swept and mopped, wetted down and applied with a slurry coat of cement and water, under orders and directions of a representative of the Architects, and then a 1% inch slab of light aggregate concrete was poured on top of the base slab and it failed to bond with the base slab.
The evidence is undisputed that it was necessary to remove the hardened laitance from the surface of the base slab and to expose the sound concrete, by scarifying the surface of the slab, in order to pour the fill slab in such manner as to obtain a satisfactory floor in compliance with the contract. It is obvious to us that a jury question was presented by all the evidence in this case and the jury apparently found that the fault lay in the Architects’ plans and specifications. We conclude that there was substantial evidence to support the jury’s verdict and that the judgment must be affirmed.
Affirmed.
Fogleman and BbowN, JJ., dissent. | [
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George Rose Smith, Justice.
Since 1947 Grace Brooks Culver, a mentally incompetent woman, has been almost continuously confined to the State Hospital. In 1966 Mrs. Culver inherited $12,388.03, which was paid to her guardian. The State Hospital then filed a claim in the probate court against Mrs. Culver’s estate for $16,268.74, which is shown to be the sum due the State Hospital for her maintenance and treatment during the years of her confinement, nothing having ever been paid upon the account. This appeal is from a probate court order allowing the claim for three years only, in the amount of $5,280.
Counsel for the guardian concede, with candor, that there is no applicable statute of limitations with respect to the State Hospital’s assertion of a claim of this kind. Cruce v. Ark. State Hospital, 241 Ark. 680, 409 S. W. 2d 342 (1966); Alcorn v. Ark. State Hospital, 236 Ark. 665, 367 S. W. 2d 737 (1963). In fact, counsel’s only argument against a reversal is the forlorn suggestion that the court’s order is not a final judgment, for the reason that the allowance of part of the State Hospital’s claim was not accompanied by an express disallowance of the rest of it. Such a contention does not deserve serious discussion.
Reversed and remanded for the entry of an order allowing the claim. | [
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Conley Byrd, Justice.
Blaine Davis Wilkins appeals from the dismissal of her petition to change custody of her son from his paternal grandmother, Martha Davis. In 1962, she filed her complaint for divorce from appellee Bobby Gene Davis. The chancellor, after hearing a number of witnesses for both parties, granted Davis a divorce on his cross-eoimplaint and awarded custody of their year-old son to his mother, Martha Davis, After appellant remarried, she sought change of custody. On February 4, 1963, after a hearing, the court in' effect denied the petition by continuing the matter for six months. No further action was taken on that petition. The testimony of the first two hearings is not in the record.
In 1966, Mrs. Wilkins filed the petition here appealed from, in which Martha Davis, the grandmother, was named a party defendant. After hearing the testimony of the parties and their witnesses, the court observed that there was no evidence of any change of circumstances, and entered its decree dismissing her petition.
For reversal, Mrs. Wilkins urges that the trial court erred in refusing to change the custody of the minor child to her, the natural mother. Without the transcripts of the 1962 divorce hearing, at which the chancellor refused to give custody of the baby to either parent and awarded it to Mrs. Martha Davis, and the 1963 custody hearing resulting in the court order continuing the matter for six months, we have no inkling of the evidence that prompted the chancellor’s original custody order. However, these were final orders from which no appeals were taken. The general rule in this jurisdiction relative to change of custody is that there must be proof of change of circumstances. Appellant demonstrated that she is making a good home for her husband and two children, but there is no evidence in the record tliat this was a change in circumstances from evidence adduced at the prior hearings, or that the welfare of the child would best be served by a change in custody from the stable home of Mrs. Davis where he has remained for a number of years. Jackson v. Jackson, 151 Ark. 9, 235 S. W. 47 (1921). Under this state of the record, we cannot say the chancellor erred in refusing to change custody.
Appellant next urges that the court erred in refusing to make specific order for overnight and weekend visitation of the boy with his mother. The court order simply stated that “custody should remain vested in Martha Davis subject to the right of reasonable visitations of Elaine Davis Wilkins and her husband, and Bobby Gene Davis and his wife.” The court’s oral findings obviously contemplate overnight and longer visits with his parents, “to be controlled by the way the child develops.” The chancellor, of course, has continuing,jurisdiction to make such further orders as may be needed. However, from a review of the testimony it certainly appears that such visitation can be handled among the parties on a workable, reasonable basis, in a climate of cooperation, without necessity for further court order.
Affirmed. | [
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Kirby, J.
Appellant, Cynthia Edwards, brought this suit in Polk County, for her own benefit as widow and as next friend for her minor children, against George A. Jackson, sheriff of Montgomery County, his deputies, members of his posse and the sureties on his official bond, for damages for the alleged wrongful act of the sheriff, the willful, wanton and negligent killing of her husband, Carl Edwards, in Montgomery County, Arkansas, while he was driving along the public highway in a Ford touring car.
The complaint also alleged that all the defendants were residents of Montgomery County, except that Ed Lewis and Will Faulkner, who were members of the sheriff’s posse at the time Carl Edwards was killed, are residents of Polk County, Arkansas.
A demurrer to the complaint and the jurisdiction of the court was interposed, its allegations showing that neither the cause of action or any part thereof were in Polk County, where the suit was brought, and also that the action was against a public officer, his deputies, members of his posse and the sureties on his official bond for acts done by him in virtue or under color of his office.
The demurrer was sustained, and, appellants declining to plead further, the cause was dismissed, and from the judgment comes this appeal.
Our statutes provide: “Actions for the following-causes must be brought in the county where the cause or some part thereof arose * * *. Second. On actions against a -public officer for an act done by him in virtue or under color of his office, as for a neglect of official duty. Third. On actions upon the official bond of a public officer, except as provided in § 1175.” Section . 1165, C. & M. Digest.
The language and meaning- of the statute on the questions involved herein is so plain as to admit of no construction. It was within the competency of the Legislature to enact it; is not in conflict with the Constitution of the State, and does not deprive appellants of any rights guaranteed by the Constitution of the United States.
The venue of the action, as shown by the allegations of the complaint, was in Montgomery County, where the cause arose, no part of it having- arisen in Polk County, where the suit was brought, and the demurrer was properly sustained. Bledsoe v. Pierce Williams Co., 147 Ark. 51, 226 S. W. 532; Reed v. Williams, 163 Ark. 520, 260 S. W. 438.
No error was committed in dismissing the complaint, and.the judgment is affirmed. | [
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Holt, J.
August 31, 1931, appellee, B. F. Goodrich Rubber Company, sued appellant, W. A. O’Neal, and Tom O’Neal, as partners, doing business under the name of Red Ball Garage, to recover $353.50, balance due on account for merchandise. September 21, 1931, judgment by default was entered against "W. A. O’Neal and Tom O’Neal in accordance with the prayer of the complaint.
September 2, 1941, the two O’Neals (defendants below) filed “Motion to Vacate Judgment,” alleging as grounds therefor: Fraud in procuring the judgment; unavoidable casualty, or misfortune preventing them from appearing or defending (§ 8246, Pope’s Digest); that no summons was ever served upon either of the defendants; that they had no knowledge or information of the suit or of the judgment rendered; that they did not purchase any merchandise from the plaintiff (appellee); that the claim was barred by the statute of limitation; that appellee sold to the defendants automobile tires under a guarantee; that the tires did not meet the appellee’s guarantee; that it became necessary for them to replace used tires with new ones and that if they had been given proper credit on these exchanges of tires, they would owe appellee nothing, and “Each of the defendants specifically denies that they were indebted to the plaintiff in any sum whatever” and “that they had at that time (when the judgement was rendered against them) and have now a meritorious defense to the alleged action.”
November 19, 1941, there was a hearing on this motion to vacate the judgment of September 21, 1931. Quoting from the judgment of the court: “. . . the court finds from the evidence introduced that summons was not served upon W. A. O’Neal or Tom O’Neal, but further finds that W. A. O’Neal had personal knowledge of the judgment being rendered within a short time after September, 1931, and finds that the said W. A. O’Neal is now estopped by his own laches from vacating said judgment. It is,- therefore, by the court . . . decreed that the motion of W. A. O’Neal to vacate judgment is . . . denied, and the . . . judgment is hereby vacated and set aside as to Tom O’Neal.”
W. A. O’Neal has appealed from the judgment as to him and appellee has cross-appealed from the action of the court in sustaining Tom O’Neal’s motion to vacate the judgment as to him.
It is conceded that on September 21, 1931, when the judgment in question was rendered against W. A. O’Neal and Tom O’Neal, they were partners. The record before us reflects not only by the return of the officer, but by the recitals in the judgment of September 21, 1931, that W. A. O’Neal and Tom O’Neal were duly served with summons to appear in the action and this record prima facie must be taken to import absolute verity. Moore v. Price, 101 Ark. 142, 141 S. W. 501.
Before this judgment may be vacated it devolved upon the O’Neals to prove not only that they had not been properly served with summons, but they must allege and prove a meritorious defense, and that they did not know of the proceedings against them in time to make a defense.
In First National Bank v. Dalsheimer, 157 Ark. 464, 248 S. W. 575, this court said: “Conceding . . . that the appellees were not served with process in the original suit, nevertheless appellees have failed to sustain their cause of action because they have utterly failed to show that they did not know of the proceedings in the original action in which judgment was rendered against them in time to make a defense. This was essential. In State v. Hill, 50 Ark. 458, 8 S. W. 401, Judge Coekrill, speaking for the court, said: ‘One who is aggrieved by a judgment rendered in his absence must show not only that he was not summoned, but also that he did not know of the proceeding in time to make a defense.’ This language was also used in the case of Moore v. Price, 101 Ark. 142, 141 S. W. 501.”
And in H. G. Pugh & Co. v. Martin, 164 Ark. 423, 262 S. W. 308, this court said: “Certainly, the court was justified in not vacating his decree unless facts showing fraud in the procurement of the judgment, or some valid defense to the action, were alleged. Section 6293, C. & M. Digest, (now § 8249, Pope’s Digest), provides that a judgment shall not be vacated on motion or complaint until it is adjudged that there is a valid defense to the action in which the judgment was rendered. It is the doctrine of this court that judgments on collateral attack will not be vacated until a meritorious defense is alleged and proved.”
Appellant, W. A. O’Neal, approximately ten years after the rendition of the judgment in question, contends that he had no knowledge of it, is not guilty of laches, and that he has alleged a meritorious defense. We think none of these contentions can be sustained. We agree with the finding of the trial court that W. A. O’Neal had personal knowledge that the judgment in question had been rendered against him shortly after its rendition September 21, 1931. There is in evidence copy of the following letter written by attorney, Jerry Witt, to Lemley & Lemley, attorneys in Hope, Arkansas, who procured the judgment in question for appellee:
“November 17, 1941. Messrs. Lemley & Lemley, Attys., Hope, Arkansas. Gentlemen: Mr. W. A. O’Neal of O’Neal Brothers of Glenwood is in the office and shows me the letter just received from you with reference to a judgment of the Goodrich Rubber Company against his firm. I happen to know both of the brothers and their financial condition. They operate the station at Glenwood and I know that the Bank here at Mount Ida has a mortgage on all of the equipment and fixtures in the garage for around $2,000.
“Mr. W. A. O’Neal tells me that the Louisiana Oil Refining Company is not indebted to his firm, or either of them, but that on the contrary they owe the Louisiana Oil Refining Company. I will say this for these men that they are honest and I believe as quick as they get out from under this mortgage to the bank that they will make you a substantial payment on the judgment, and I trust that you can give them more time. I cannot see how you can collect with a garnishment suit or by an execution at the present time. With best personal regards, I remain Tours Very Truly, Jerry Witt.”
While this letter bears the date of November 17, 1941, we think it clear that by its contents, and other evi-. dence in the record, the court was justified in finding that it was written November 17,1931. W. A. O’Neal testified that at the present time and since 1934 he has been able to pay the judgment if required to do so. We think, therefore, the evidence establishes that W. A. O’Neal knew of this judgment at the time the letter was written and that he is barred by laches.
The textwriter in 34 Corpus Juris 263, § 488, announces the rule in this language: “A party who has knowledge of the judgment against him is required to exercise reasonable diligence in seeking to have it set aside, and his unexcused delay in making the application, amounting to laches, will justify the court in refusing the relief asked . . .” The case of Awbrey v. Hoopes, 145 Ark. 502, 224 S. W. 959, is cited in support of the text.
We are also of the view that neither W. A. O’Neal nor Tom O’Neal alleged and proved a meritorious defense as required. The trial court made no finding that either of these defendants (below) alleged or proved a meritorious defense.- The effect of their allegations in their motion to vacate, the judgment was that they did not owe the debt. While they alleged that they were operating under a guarantee with appellee, they did not set forth nor did they attempt to prove any of the terms of the alleged guarantee and their allegations amount to no more than conclusions of the pleader. No facts were alleged sufficient to show a meritorious defense such as would justify the vacating of this judgment as to W. A. O’Neal or Tom O’Neal, which they now attack collaterally approximately ten years after its rendition.
Accordingly the judgment against W. A. O’Neal on direct appeal is affirmed, and on cross-appeal the judgment in favor of Tom O’Neal is reversed and judgment will be entered here against him.
Smith and Mehaeey, JJ., dissent. | [
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Lyle Brown, Justice.
The appellants here were plaintiffs below. Appellee was one of three defendants. The parties will be referred to as they appeared in the trial court. As the result of a fatal accident Ray Deam and others brought this suit against O. L. Puryear & Sons, Inc., and two individuals. Puryear successfully moved for summary judgment and plaintiffs appeal.
One of the defendants, V. I. Clark Sr., had heen engaged in the public hauling business in the Dumas-Grady-Dermott area for some fifteen years. He operated from two to three dump trucks and hauled sand and gravel. Another defendant, John Yanzandt, was operating one of Clark’s trucks at the time of the accident. The other defendant, O. L. Puryear & Sons, Inc., with headquarters at Dumas, was engaged in the construction business and was a substantial user of sand and gravel. Puryear frequently placed orders with Clark for the delivery of those materials to job sites. Clark’s truck, driven by Yanzandt, was involved in the fatal accident forming the basis of this suit. It is alleged that Yanzandt was then in the course of traveling to Pur-year’s job. site with a load of sand.
Plaintiffs’ theory of liability as against Puryear is based on the assertion that both Clark and Vanzandt were agents of Puryear and that they were acting within the scope of that agency at the time of the collision.
Puryear’s motion for summary judgment was supported by the discovery depositions of Clark and Yanzandt and by four affidavits. We summarize the pertinent assertions found in that evidence.
In his sand and gravel trucking business Clark had in operation three dump-bed trucks. Vanzandt was one of three employees regularly used in the business. Extra help was utilized at odd times. Clark hauled for anyone who needed his services in the trade area. He named some five substantial firms for which he hauled. “There isn’t many around there but what we haven’t hauled some for.” He charged by the cubic yard. He was not the exclusive hauler for any of the named firms, in- eluding Puryear, Inc. A person or firm needing ¡Clark’s services ordinarily called him, giving Mm the yardage of sand or gravel, and stating the point of delivery, usually a job site or a stockpile. Clark gave the information to Vanzandt. The driver would proceed to Pine Bluff Sand and Gravel Company to pick up the materials and they were there charged to the user. If the point of destination was a job site, Vanzandt proceeded there and dumped the load in a particular place shown him by the contractor. On occasions a building contractor would desire delivery of part of a load in one place and the balance at another location. Vanzandt conformed.
Vanzandt had been a regular employee of Clark for over two years. Vanzandt was directed exclusively by Clark as to all details of pickup and delivery excepting the information from the contractor as to the specific point of delivery on the job site. There is no evidence that any contractor supervised or directed the process of unloading.
Our summarization is taken from the depositions of Clark and Vanzandt, together with affidavits of four others, all introduced by Puryear in support of the motion for summary judgment. Plaintiffs responded with two affidavits; however, the content of those responses referred to the single contention that at the time of the accident the load of sand was destined for Puryear’s job site. There was evidence to the effect that the load was to be delivered to another party. We can place that contention at rest by assuming, for purposes of this opinion, that Vanzandt was on his way to defendant Pur-year’s job site at the time of the accident.
In considering a motion for summary judgment the trial court examines the pleadings, and any depositions, admissions, or affidavits, to determine if there is a genuine issue as to the material fact involved. Ark. Stat. Ann. § 29-211 (Repl. 1962). “. . .[T]he theory underlying a motion for summary judgment is the same as that underlying a motion for a directed verdict.” Hence the trial court views the evidence “in the light most favorable to the party resisting the motion, with all doubts and inferences being resolved against the moving party.” Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89 (1963). The opposition to the motion cannot always successfully take his stand on the content of his pleading alone. If the movant makes a case for summary judgment the opponent must come from behind “the shielding cloak of formal allegations and demonstrate a genuine issue.” Mid-South Insurance Co. v. First National Bank of Fort Smith, 241 Ark. 935, 410 S. W. 2d 873 (1967).
The relationship between the tr'uck owner, Clark, and Puryear, Inc., the building, contractor, is so clear that it warrants little discussion. Clark was clearly an independent hauler of sand and gravel. He owned his own equipment and hauled for anyone desiring his services. He operated in the same manner as do hundreds of haulers in this State — local transfer companies, franchised independent haulers of numerous commodities both local and statewide. They all pick up commodities at the request of the owner and deliver those commodities to a location designated by the owner. They bill the owner according to a fixed tariff or by charges otherwise agreed upon. As does Clark, they serve the general public in their area.
In Fordyce Lumber Company v. Wardlaw, 206 Ark. 35, 176 S. W. 2d 241 (1943), we held that Fordyce was entitled to a directed verdict; that Wardlaw was an independent log hauler and not a servant of Fordyce Lumber Company. Wardlaw’s business relations with the lumber company were very similar to those existing between Clark and Puryear. Additionally, Puryear’s witnesses gave evidence to the effect that Clark was not in Puryear’s employment.
Finally, we conclude that reasonable minds would never reach the conclusion that a master-servant rela tionship 'existed between Puiyear, Inc., and Vanzandt The right to control the manner in which work is performed is vital in determining the relationship between the parties. Barr v. Matlock, 222 Ark. 260, 258 S. W. 2d 540 (1953). Vanzandt was in the general employment of Clark. It was Clark who hired and paid Vanzandt, furnished the hauling equipment, gave him instructions to pick up loads, gave him the delivery destination, and no person other than Clark could discharge him from that employment. The only contact between Vanzandt and Puryear, Inc., was at a job site when the contractor would point out the particular place or places to dump the sand. Vanzandt had not arrived at the job site when the collision occurred; he was enroute. To hold that a deliveryman whose general employer directs him to unload the material where the recipient desires it placed— to say that such placement, standing alone, creates a new employer-employee relationship — would toll the end to a service that is so essential to countless numbers of daily recipients of every type of commodity. We say countless because that would encompass deliveries to homes, businesses, and industries.
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James R. Van Dover, Special Justice.
This is the second appeal of two consolidated actions of which a shareholders derivative action, filed by appellants under Rule 23.1, ARCP, remains.
Appellants, led by Dr. Billy Hall, are minority shareholders of Dunhall Pharmaceuticals, Inc. (“Dunhall”), a privately traded Arkansas corporation. Dr. Hall is one of Dunhall’s organizers and the only member of its three man board of directors not involved in its daily management. The appellees/ cross-appellants are Dunhall; Monte J. Staha and Jimmy Hatfield, Dunhall’s President and Sales Manager, respectively; MJS, Inc. and RNI, Inc., corporations they own; and Med-Max Associates Limited Partnership (Med-Max), which they control. Staha and Hatfield are the other board members.
Through MED-MAX, Staha and Hatfield gained control of 50.5% of Dunhall’s stock during the summer of 1987. Control was acquired while they were aware that Jones Medical Industries, Inc. (“JMI”) was interested in acquiring “all or substantially all” of Dunhall’s capital stock and that a JMI acquisition would jeopardize the continuation of their executive positions and compensation. The Chancellor found their compensation to be excessive.
A sufficient history of this case appears in the first opinion. It will not be repeated here, except where required. See Hall v. Staha v. Dunhall Pharmaceuticals, Inc., 303 Ark. 673, 800 S.W.2d 396 (1990). In that earlier opinion, three issues were remanded for further development and decisions. The Chancellor conducted a second hearing in June 1991. His three decisions, together with orders incidental to them, are now here.
I. WAS STAHA AND HATFIELD’S CONDUCT, CONCERNING JMI’S OFFER OF JULY 13,1987, TO PURCHASE “ALL OR SUBSTANTIALLY ALL” OF DUNHALL’S STOCK IN THE BEST INTEREST OF DUNHALL AND IF NOT, TO WHAT EXTENT WERE APPELLANTS DAMAGED?
Appellants sought judgment against appellees for profits lost from being deprived of an opportunity to sell their shares to JMI, pursuant to JMI’s “offer” of July 13, 1987. They attribute that loss to Staha and Hatfield’s failure to actively pursue or become informed about JMI’s proposal and to undertake board action concerning it. Protecting their employment contracts was Staha and Hatfield’s alleged motive. The Chancellor denied the judgment after determining that Staha and Hatfield acted in Dunhall’s best interest regarding the purchase proposal; that no evidence of JMI’s continuing interest had occurred through December 1989; and that appellants failed to prove that Staha and Hatfield’s conduct caused any damages. The Chancellor also found that “the actions of Staha and Hatfield in their continuation to purchase stock through MED-MAX was not, in and by itself, inherently in bad faith to the interest of the corporation or the shareholders and not in conflict with Staha’s efforts to communicate with [JMI’s executive officer].” (Emphasis added.)
JMI conditioned their proposal upon its own representatives obtaining basic information from Dunhall’s financial and business records. That work having not been done, the conditions were not satisfied. The July 13 proposal lacked the formalities of an “offer” to any shareholder and appellants cannot successfully say they suffered deprivation. We therefore affirm the Chancellor’s dismissal of Count IV.
Our acceptance of the Chancellor’s ultimate ruling is not an approval of the activities — imputed to Staha and Hatfield — that preceded and followed receipt of the July 13,1987 letter. The Chancellor’s decision that Staha and Hatfield sustained their heavy burden of proving their conduct was inherently fair and a service to the best interests of Dunhall and all its shareholders is clearly erroneous.
Although both Staha and Hatfield had acquired a substantial number of shares prior to April 1987, having absolute control of Dunhall was not essential. However, their attitudes changed and the need to secure that control became imperative when JMI expressed an interest in purchasing the effective control of Dunhall in April 1987, and it was made known that neither they nor their positions would be retained under JMI ownership. In the face of Hall’s competing efforts, Staha and Hatfield retained New York counsel, and organized MED-MAX under Delaware law, serving as its general partners. They then personally funded a trust account from which Dunhall’s sales staff drew purchase money funds for Dunhall stock. The salesmen traded their shares to MED-MAX to become its limited partners. Immediately after MED-MAX had 50.5% of the shares, Hatfield and Staha directed that no additional shares be purchased, convened a special shareholders meeting and restored their domination of the board by reducing it from seven to three members. Without securing outside review or seeking to determine comparable salaries being paid in the pharmaceutical industry, the salaries were continued at 4 % of net sales after September 30, in spite of the minority’s protests of excessive compensation.
JMI’s letter of July 13, 1987, arrived in the midst of these efforts to gain control of Dunhall. It followed by only six weeks, JMI’s withdrawal of the April 1987 overture. After July 13, Staha made several phone calls in an effort to communicate with JMI. On August 31, 1987, after he had control, he addressed a certified letter to JMI’s chief executive. It documented Staha’s lack of concern. Staha and Hatfield attempted to excuse their failure to take affirmative action by pointing to JMI’s failure to begin the “satisfactory review and inspection of the book and records and the due diligence examination by JMFs accountants and lawyers.” Staha also complained that JMFs chief executive officer was unavailable during the intervening six week period of July 13 — August 31.
Attributing increased corporate profits to the preservation of the Staha and Hatfield management team and equating those profits as serving Dunhall’s best interest, the Chancellor failed to recognize the distinction between the community of shareholders and Dunhall, the corporate entity. Because an acquisition by JMI presented personal adversity to Staha and Hatfield, we cannot naively accept profit, a corporate achievement, as being necessarily beneficial to the shareholders. Corporate profits become beneficial to a shareholder only when they are distributed as dividends or cause appreciation in market value. Neither occurred here.
Deciding the proper reaction to a buy-out or takeover is not a decision routinely made in the normal course of every day business. Its impact on shareholders deserves evaluation. Such an opportunity involves the corporation/shareholder relationship to a greater degree. Here, no ready market for Dunhall stock existed. A shareholder, especially one in disfavor with management, was unable to transfer his risk capital to another investment. Staha and Hatfield owed all shareholders an affirmative duty to investigate thoroughly any buy-out opportunity that was made in apparent good faith, to seek an independent appraisal of its consequences, and to refrain from any conduct designed or allowed to thwart it.
We do not separate the activities of MED-MAX from Staha and Hatfield. Staha and Hatfield were responsible for its formation and enjoyed the fruits of control that it provided. MED-MAX was their alter ego. Its activities are imputed to Staha and Hatfield. MED-MAX’s acknowledged purpose was to gain and exercise control over Dunhall and to assure that it was operated as it had been in the past. It was designed to frustrate appellants’ efforts to achieve change and perpetuate management, and it did so. A MED-MAX accomplishment was a Staha/Hatfield accomplishment. When resisting takeover attempts and dealing with other shareholders, the directors’ sole or primary motivation cannot be to entrench themselves in office. Unocal Corp. v. Mesa Petroleum Co., 493 A.2d 946 (Del. 1985). The facade of MED-MAX will not be allowed to shield Staha and Hatfield’s genuine motives.
In the search for inherent fairness and good faith to a corporation and shareholders, conduct of directors must be subjected to “rigorous scrutiny” when conflicting self-interest is shown. Pepper v. Litton, 308 U.S. 295, 60 S. Ct. 238, 84 L. Ed. 281 (1939). As officers and directors, Staha and Hatfield are held to an even higher than the normal and demanding standards that apply to a fiduciary. Raines v. Toney, 228 Ark. 1170 at 1178, 313 S.W.2d 802 (1958). Applying these stricter standards, we draw a conclusion that is clearly contrary to the Chancellor’s.
II. WAS STAHA AND HATFIELD’S COMPENSATION AFTER OCTOBER 1, 1987, INHERENTLY FAIR TO ALL SHAREHOLDERS AND FIXED IN GOOD FAITH, AND, IF NOT, DETERMINE THE EXTENT OF EXCESSIVENESS.
Throughout their employment with Dunhall, Staha and Hatfield’s annual compensation was fixed with reference to annual net sales. Since October 1982, that level was 4 %, with the contract being renewed annually until the board and the officers failed to agree. No insurance, pension plans or stock options were added. At the May 1987 shareholders’ meeting, Hall made known his resistance to continuing that arrangement. Once in control, Staha and Hatfield continued their pay at 4% of net annual sales. Each one received $248,887 in 1987, $267,841 in 1988, $500,685 in 1989 and $387,450 in 1990.
After hearing the testimony of two compensation experts, the Chancellor held that the compensation was inherently unfair and excessive and set reasonable compensation in 1987 at $230,000 each ($150,000 salary plus $80,000 as compensation for the lack of retirement, health, disability and life insurance plans). Automatic 6% annual increases were ordered. Dunhall was granted judgment for $769,072, against Staha and Hatfield, jointly and severally, plus post-judgment interest from the date of the second hearing.
Appellants complain that the judgment was inadequate. In a cross-appeal, appellees argue that their 4 % compensation should be continued, if not increased.
Each expert carefully chose supporting data to justify his client’s position. Both attempted to quantify the compensation required to persuade other similarly qualified executives to accept Dunhall’s top two management positions.
Because salaries were Staha and Hatfield’s only remuneration, appellants’ expert looked for comparable compensation being paid the top two executives by companies that had annual sales under $30 million. (Dunhall’s were less than one-third of the amount.) His view of the required salary began at $93,000 in 1987 and extended to $139,000 in 1990. He fixed the average cost of supplementary fringe packages at 25 % -30 % of the salaries, while appellees’ expert fixed it at 25%-35%.
The data chosen by appellees’ expert was retrieved from information filed with the Securities and Exchange Commission by twenty-two publicly traded pharmaceutical companies. All had annual sales of less than $100 million, and all but two had stock option plans in effect. His total package was broken into the four categories of cash salary, annual merit bonuses, and health/ other insurance and retirement security plans, plus stock options, the latter intended to encourage management to increase shareholder values. Because Dunhall was not publicly traded, he calculated profits realized by executives as they sold stock acquired under stock option plans and included the annualized result as a part of his compensation he thought was required. Substantial portions — 72% of chief executive officer’s cash compensation and 57 % of the second officer’s — of his total were profits earned in this manner. Removing these profits from his final figures, the average annual direct pay (salary plus merit bonuses) totals were $146,440 (28 % of $523,000) for the twenty-two CEOs and $110,460 (42% of $263,000) for the second officer. Apparently, the Chancellor chose to disregard his view that cash was a logical substitute for stock option profits, as his award consisted of salaries and fringe benefit supplements only. He left consideration of stock option plans to the future and assigned it to the Compensation Committee discussed in Point IV. That delegation being determined to be proper, our review is of the Chancellor’s award of direct pay and fringe benefits.
The Chancellor erred when he fixed the cost of the fringe benefit package at $80,000, or 53% of $150,000. That finding is not supported by the evidence. Neither expert fixed it at greater than 35% of salary, the middle point being 30%.
Neither is there any evidence that supports the Chancellor’s finding that 1987 direct pay should be $150,000, or that successive salaries should be increased annually at a fixed rate. In the survey conducted by appellees’ expert, the average direct pay for CEOs was $113,000 in 1987, $134,000 in 1988, $174,000 in 1989 and$173,000in 1990. For thesecond officer, it was $89,000 in 1987, $101,000 in 1988, $120,000 in 1989 and $144,000 in 1990. Appellants’ suggested averages were $93,000 in 1987, $106,000 in 1988, $111,000 in 1989, and $139,000 in 1990 for each officer.
While the record does not support the Chancellor’s findings, it is sufficient to allow us to make findings on which the Chancellor can base an amended judgment. If Staha and Hatfield had called upon the expert they used at trial in 1987, we assume he would have provided them with the same information that he relayed to the Chancellor. Without showing why larger than industry averages should have been paid them, which was not given on record, Staha and Hatfield are entitled to no more than the annual averages assigned by their expert to their respective positions. Staha is entitled to base salaries of $113,000 in 1987, $134,000 in 1988, $174,000 in 1989 and $173,000 in 1990, plus 30% thereof for the absent insurance and retirement supplements. Hatfield is entitled to be paid $89,000 in 1987, $101,000 in 1988, $ 120,000 in 1989 and $ 144,000 in 1990, plus the same 30 % supplement.
The Chancellor did not explain why the judgment was imposed on Staha and Hatfield, jointly and severally, when one served as the superior to the other and was presumably entitled to receive greater remuneration for his services. In each set of executive salaries surveyed, appellees’ expert reported a disparity between the highest paid executive and his immediate subordinate. A liability of one for excessive compensation is not imputed to the other. Their liabilities must be distinguished. One judgement should be entered against Hatfield, RNI, Inc. and MED-MAX and another judgment should be against Staha, MJS, Inc. and MED-MAX. Only MED-MAX has joint and several liability. The amended difference between the amounts of the separate judgments is the extent that the salary paid to one contrasts with the salary paid to the other.
The Chancellor is ordered to enter revised judgments consistent with these conclusions and to award post-judgment interest on the increase from the date of the Mandate.
III. SHOULD THE JUDGMENT FOR EXCESSIVE COMPENSATION BE AWARDED TO DUNHALL OR TO APPELLANTS PRO-RATA?
The whole of the Chancellor’s excessive compensation judgment was awarded to Dunhall. Appellants argue that a pro-rata portion should have been given to them.
This action is not to correct improprieties allowed by a board of directors consisting of independent persons. The absolute control acquired and continued by Staha and Hatfield cannot be ignored. The Dunhall board and its treasury cannot be separated from the will of its management. The board remains insensitive to its responsibilities to all shareholders. While shareholder equity has increased over the course of this litigation, no dividend has been declared and no legitimate corporate reason for retaining the profits was shown. Appellees continue to regard Dunhall as a personally owned company and are operating it for their exclusive gain. A special rule, applicable when a board lacks sufficient independence from management, is proper. That rule diverts to appellants a pro-rata portion of the excessive compensation judgments against Staha and Hatfield.
In Lynch v. Patterson, 701 P.2d 1126 (Wyo. 1985), the court borrowed language from Backus v. Finkelstein, 23 F.2d 357 (D. Minn. 1927) and said:
“*** For obvious reasons, it may be highly improper to direct that the moneys here recovered on behalf of the corporation shall be paid into the treasury thereof. That might be paying the moneys back into the custody and control of those from whom the recovery was had. It might defeat eventually the purpose of the suit and be the beginning of another prolonged cycle of litigation. Unless conditions shall ensue which will materially change the situation, the distribution, so far as possible, should be directly to the individuals who will ultimately be entitled thereto.”
***
Corporate recovery would simply return the funds to the control of the wrongdoers. The three defendant directors in this case constitute the policy-making body of the corporation. They manage the business and affairs of the corporation under statutory authority. Furthermore, two of the directors hold 70 percent of the voting stock in the corporation. Given the family orientation and the small number of shareholders of LCS, any change in control of the corporation is unlikely.
701 P.2d at 1130.
The judgment should be modified accordingly. The minority should receive 49.5 %, if that is its actual pro-rata share, and the balance should be entered for Dunhall.
IV. DID THE CHANCELLOR ERR WHEN HE FIXED A $25,000 FEE FOR APPELLANTS’ ATTORNEYS OR ORDERING STAHA AND HATFIELD TO PAY IT?
We have previously held that a fee award in this case falls within the guidelines of Millsap v. Lane, 288 Ark. 439, 706 S.W.2d 378 (1986). Hall v. Staha, 303 Ark. at 683, 396 S.W.2d at 402. The Chancellor was required to set reasonable compensation for efforts expended by appellants’ attorneys subsequent to the period considered when the $30,000 fee was made following the first hearing. Through June 30, 1991, appellants’ total fees and expenses were $235,467.26, against which the first fee was credited. The residual claim was $204,953.5.6. On the other hand, the billing and expenses of law firms representing the appellees totaled $137,050.32. The Chancellor granted appellants’ attorneys a supplementary fee of $25,000 and entered judgment for that amount against all appellees. On appeal, appellants insist they are entitled to the entire claim of $204,953.56. Appellees contend that Dunhall should be the only judgment debtor.
We find no suggestion that the Chancellor made a deliberate determination of reasonable compensation. Unless the affidavits of appellees’ attorneys were construed to contradict appellants’, no counter-affidavit was filed. Certainly, no hearing was conducted.
While we recognize the Chancellor observed the attorneys’ trial work, he was not adequately apprised about the time requirements or details of the preparation that preceded either trial. Therefore, we remand this matter so the chancellor can set a proper fee for the work performed by appellants. In remanding this cause for determination of reasonable attorney’s fees, we direct the chancellor to the guidelines in Millsap.
In Millsap, the prevailing attorneys’ $422,977 fee request was granted after a hearing where the prevailing attorneys produced their time records, revealed their hourly rates, presented their actual expenses and offered expert testimony to substantiate the reasonableness of their claim. The criteria used to establish reasonableness appear there and should be equally applicable here.
Appellees are correct in their argument on this point. The pool of the “common fund” serves as the source of the payments of fees and expenses. But to order the fund to pay this charge before its division between Dunhall and the appellants would reward those whose conduct required the filing of this action and detract from our intent to discourage director abuse of their fiduciary responsibilities. When determined, the entire amount should be paid by Dunhall and not any other appellee.
V. SHOULD A TOTALLY INDEPENDENT COMPENSATION COMMITTEE BE FORMED TO SET FUTURE EXECUTIVE COMPENSATION PLANS? IF SO, SHOULD THE COURT RETAIN JURISDICTION AND REVIEW ITS OUTPUT?
The court created a three person compensation committee and directed appellees to appoint one member and appellants to appoint the other. The third would be named by the first two. Its membership would exclude all parties, all minority shareholders and any others having either a direct or indirect interest in Dunhall. Its purpose is to establish future compensation plans for management, giving due weight to the performance and responsibilities of the highest paid corporate officers. Consideration of a stock option plan is also a part of its job. All decisions are binding on Dunhall, and Staha and Hatfield are enjoined from voting against them.
Appellants contend that minority shareholders should be allowed to serve on the committee. Appellees’ cross-appeal maintains that the Chancellor must reserve jurisdiction to review Committee findings rather than making them absolute. They argue that the Chancellor’s excessive compensation ruling should have allowed the “cash for stock option profit” substitution, thereby eliminating the need for the Committee to consider stock option plans in the future.
The business judgment rule is a statement of judicial reticence. It flows from the thought that judges are not equipped as well as directors to make business decision. But judges have the duty to correct wrongs, and Chancellors have a special authority to craft remedies to overcome board omissions and to create an environment where fairness can be demonstrated. The directors had ample opportunity to integrate independent directors into their board and failed to do so. Until Dunhall is operated under an umbrella of fairness to all, existing management and the existing board must surrender their authority to set executive compensation.
Setting those salaries is not among the Chancellor’s expected duties. We will not enlarge his responsibilities or require him to supervise such matters that he has elected not to do. Directing the formation of the Committee is a proper solution, and retaining the qualifications of its members will foster fairness. There is no valid reason to include persons that have obvious conflicts of interest. The parties should devote their attention to selecting honorable, diligent individuals who have the requisite business acumen and who will take their responsibilities seriously and not submit to improper influences from any source.
Stock options became important to Staha and Hatfield with the onset of litigation and the realization that appellants strongly opposed the continuation of the compensation arrangements. Shares made available to them now through such a plan would have little, if any, value. Current management is firmly in place and a stock option plan is not necessary to attract their replacements. The Chancellor is not required to indulge appellees’ every request or to speculate on Dunhall’s future needs.
All portions of the Chancellor’s order relating to this point are affirmed.
VI. DID DUNHALL SUSTAIN DAMAGES OR DID STAHA AND HATFIELD PROFIT FROM THE “DOUBLE BILLING” PRACTICE? IF SO, FIX THE AMOUNT THEREOF.
The final remand question required the Chancellor to determine the damages to Dunhall from a practice known here as “double billing.” Appellants concede that neither Staha or Hatfield personally benefited from these moneys. They agree that no customer filed a suit to recover the collected funds. The Chancellor correctly determined that the appellants failed to carry their burden of proof. We affirm.
John E. Pruniski III, for appellants.
Peter G. Ester, Jr., Stephen E. Adams, and Roy E. Stanley, for appellees.
VII. SHOULD THE CHANCELLOR’S ORDER HAVE ENJOINED DUNHALL FROM DISCHARGING STAHA OR HATFIELD OR OTHER EMPLOYEES WITHOUT PRIOR CONSENT OF THE CURRENT MANAGING OFFICERS, EXCEPT FOR GOOD CAUSE.
Another paragraph of the order prevented Dunhall from discharging Staha, Hatfield or any other employee without consent of the managing officer except for good cause. Both sides agree that this relief was never requested and is not supported by current Arkansas law. That part of the order is reversed and shall be deleted.
Corbin and Brown, JJ., not participating. Special Associate Justice David M. Glover joins this opinion.
On April 13,1987, JMI made a non-binding offer to purchase 48% of Dunhall then owned by Staha, Hatfield and Hall collectively.
Whether this withdrawal letter was voluntary or written at Staha’s request is disputed. The Chancellor made no finding on this issue. Holding it to be voluntary is inconsistent with JMI’s July 13, 1987, letter of renewed or continuing interest.
He wrote of unsuccessful efforts “on several occasions ... to make contact. . . concerning [your] interest in Dunhall” and requested a current statement of JMI’s interest.
Earlier we distinguished the formation of MED-MAX from the activities of MED-MAX. Hall v. Staha, 303 Ark. at 681, 800 S.W.2d at 401.
The definition of inherent is “firmly or permanently contained, in-dwelling or intrinsic.” Compton v. Talley, 227 Ark. 491 at 494, 299 S.W.2d 653 (1957); “involved in the constitution or essential character.” Webster’s New International Dictionary (2d Ed. 1957).
The average salary paid by Natural Resources, a company without a stock option plan but with comparable total sales and more rapid sales growth, to their top two officers was $61,750 in 1988, $69,400 in 1989 and $157,191 in 1990.
That Staha permitted the “double billing” practice (see Point V.) to exist detracts from him having any special qualifications.
By adopting the industry annual averages for Staha and Hatfield, we have not meant to imply that such future amounts are necessarily “reasonable.”
We approve the methodology adopted by the Chancellor as set out in paragraph 37 of the Amended and Substituted Order and Judgment. Staha and Hatfield received excessive compensation of $556,172.75 and $714,772.75 respectively during the October 1, 1987 — December 31, 1990, period. | [
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Dale Price, Special Chief Justice.
At issue in this case is whether a decision in a federal court case operates as res judicata to bar the litigant from participating as a passive claimant in a subsequent class action suit brought in state chancery court.
In 1983, appellee Taylor filed a complaint in federal court in the Western District of Arkansas seeking to cancel or reform thirty-one (31) of his oil and gas leases, twelve (12) of which are included in the present suit. Taylor also requested other relief that was substantially the same as that requested in the present litigation.
A thirteenth lease between the parties known as the Stubblefield Lease was in existence at the time of the federal litigation, but was not included in the 1983 federal court suit. It was, however, stipulated that the Stubblefield Lease was not only in existence, but that gas wells located on the existing drilling unit were in production when the federal court suit was litigated. The district court found in favor of the appellants, and the Eight Circuit Court of Appeals affirmed. Taylor v. Arkansas Louisiana Gas Co., 604 F. Supp. 779 (W. D. Ark. 1985), aff'd, 793 F.2d 189 (8th Cir. 1986).
In 1986, several other mineral rights owners of the Cecil Gas Field with identical fixed rate leases filed suit against the appellants in Franklin County Chancery Court. Three separate actions were filed, and all were consolidated into one class action. A representative plaintiff was named, and the court certified the lessors as a class under ARCP Rule 23. Appellee was a member of the class. The class was defined as:
All those persons holding an interest as lessor in “fixed-price” leases in the Cecil Gas Field, located in Franklin, Sebastian and Crawford Counties, Arkansas, and whose interests are affected by “new” wells drilled by any of the Defendants from and since December 31,1982, including wells to be drilled in the future during the pendency of this action.
The issues, grounds, and relief sought in the class action suit were substantially the same as in Taylor’s complaint filed in 1983.
The appellants answered the complaint with various defenses. They specifically pled that Taylor could not participate in the class action because his rights in the leases had been settled by the federal court, and, therefore, Taylor’s claims were barred by res judicata and collateral estoppel.
On December 13, 1989, the trial court entered an interim decree which found that the parties’ actions over the years effectively modified the “fixed-price” leases into “market-value” leases. The parties then voluntarily entered into a class-action settlement which provided that payment to Taylor was subject to his class claim not being barred by res judicata.
Appellants filed a motion for summary judgment to determine whether Taylor’s participation in the class was barred. The chancellor ruled that the federal court’s decision did not involve the three wells located in a drilling unit that was not included in the federal suit. The chancellor also ruled that appellee’s participation in the class action with respect to wells that were not in the 1983 suit was an additional reason why appellee was not barred by res judicata.
The court denied appellants’ motion for summary judgment. Taylor then filed his own motion for summary judgment. The appellants filed a motion to reconsider their own motion for summary judgment. By agreement of the parties, Stephens’s and Arkla’s motion for reconsideration and Taylor’s motion were submitted to the court for decision on stipulated facts. The trial court granted Taylor’s motion for summary judgment and denied Stephens’s and Arkla’s motion for reconsideration. The order was entered on January 21, 1992, and Stephens and Arkla appeal to this court.
Appellants argue that Taylor is precluded from participation in the settlement agreement by the doctrine of res judicata. This court restated the general rules relating to res judicata in Robinson v. Buie, 307 Ark. 112, 114, 817 S.W.2d 431, 432-33 (1991), as follows:
Under the doctrine of res judicata or claim preclusion, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. [Citation omitted.] Privity of parties within the meaning of res judicata means “a person so identified in interest with another that he represents the same legal right.” Spears v. State Farm Fire & Casualty Ins., 291 Ark. 465, 725 S.W.2d 835 (1987). Res judicata bars not only the relitigation of claims which were actually litigated in the first suit, but also those which could have been litigated.
As stated earlier, Taylor owned thirteen (13) “fixed rate” gas leases at issue here. Twelve (12) of the leases were at issue and litigated in the federal court action, while the thirteenth — the Stubblefield Lease — was in existence when that case was litigated. Some wells on the Stubblefield Lease were in production at the time the federal court suit was litigated and could have been included in the federal litigation, but appellee failed to do so.
Appellants take the position that Taylor’s present claim for relief could have been raised by him in Taylor v. Arkansas Louisiana Gas Co., 604 F. Supp. 779 (W.D. Ark. 1985), and the judgment rendered against Taylor in that case constitutes a complete bar to any recovery in this case. We agree.
[T] he test in determining whether res judicata applies is whether matters presented in a subsequent suit were necessarily within the issues of the former suit and might have been litigated therein. . . . [W] hen the case at bar is based on the same events and subject matter as the previous case, and only raises new legal issues and seeks additional remedies, the trial court is correct to find the present case is barred by res judicata.
American Standard v. Miller Eng’g, 299 Ark. 347, 351, 772 S.W.2d 344, 346 (1989).
In Ward v. Davis, 298 Ark. 48, 765 S.W.2d 5 (1989), we set forth the required elements for res judicata to apply. We stated:
The claim preclusion aspect of the doctrine bars relitigation in a subsequent suit when: (1) the first suit resulted in a judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or a cause of action which was litigated or could have been litigated but was not; and (5) both suits involve the same parties or their privies.
Id. at 50, 765 S.W.2d at 6. The chancellor relied upon Harris v. Whitworth, 213 Ark. 480, 211 S.W.2d 101 (1948), in holding that the 1986 federal court decision did not constitute res judicata or collateral estoppel. The chancellor found additional support for his ruling that res judicata did not apply in the fact that this was a class action, that three of the wells had not been drilled at the time of the 1986 federal court decision, and that the three wells were not mentioned in the federal court opinion.
The Harris case, upon which the chancellor relied, was a probate case and is distinguishable on its facts. Those facts were that Ancel Harris sued the administrator of his father’s estate alleging a partnership with his father and asked that he be given possession of the partnership assets to wind up the partnership affairs. Ancel next filed suit against his brother and sister seeking specific performance of one contract between himself and his father that allegedly was an agreement to convey a small farm to him. Both cases were dismissed for failure of proof on February 1, 1986, and were appealed. Ancel thereafter filed a claim against his father’s estate on April 1, 1946, before the affirmance of the decisions by this court. No formal plea of res judicata was interposed, although it was insisted that the affirmance by this court constituted a bar since the witnesses and testimony were substantially the same as in the first two cases.
We held that despite Ancel Harris’s failure to establish an express contract and having been mistaken about the proper action he should have brought, he still had a right to seek to recover from the estate on a quantum meruit basis. The chancellor in this case also cites 46 Am. Jur. 2d Judgments, § 402 (1969), which reads:
The doctrine of res judicata may be said to adhere in legal systems as a rule of justice. Hence, the position has been taken that the doctrine of res judicata is to be applied in particular situations as fairness and justice require and that it is not to be applied so rigidly as to defeat the ends of justice or so as to work an injustice.
We hold that there is no injustice or unfairness involved. Taylor had a full and fair trial in the federal district court and a full and fair appeal of the adverse judgment rendered against him. He also could have litigated the Stubblefield Lease had he so chosen.
There have been no Arkansas cases decided on the issue of whether being certified as a member of a class would in and of itself nullify the application of the doctrine of res judicata. We adopt the position that res judicata can prevent a person from being certified as a class member in a class action. In McDonald v. Heckler, 612 F. Supp. 293 (D.C. Mass. 1985), disability claimants brought an action challenging certain policies of the Secretary of Health and Human Services. The Secretary moved to dismiss the action, and the claimants moved for class certification. One of the Secretary’s arguments for dismissal was that certain claimants who had previously appealed a denial of their benefits to the courts and received a final decision in that proceeding were barred under res judicata from participating in the class action. The federal court held that the claims of those proposed class members who had appealed their denial of benefits to the courts and received a final court decision were barred from participating in the class action by res judicata.
The chancellor should have granted appellant’s motion for summary judgment and dismissed Taylor’s claim.
Reversed and dismissed with prejudice.
Holt, C.J., and Brown, J., not participating.
Dudley, Newbern, and Corbin JJ., concur. | [
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David Newbern, Justice.
William Mac Hufford was convicted of six counts of burglary and five counts of theft of property and sentenced to 60 years in prison. His first point on appeal is that his right to a speedy trial as provided in Ark. R. Crim. P. 28.1(b) was violated. Specifically, Mr. Hufford contends the state’s delay in providing a court-ordered mental examination caused his trial to be delayed beyond the one-year time limit. Second, Mr. Hufford contends the State’s failure to send him to the State Hospital in compliance with the court order and the insufficiency of the examination violated his Fourteenth Amendment right to due process. As the continuance for the examination came at Hufford’s request and the examination was in substantial compliance with the law, we find no merit in either point and affirm.
While on parole resulting from an Arkansas conviction, Hufford was arrested in Neosho, Missouri, September 28,1990. On October 1, 1990, he was transferred to Benton County as a suspect in several thefts there. On October 30, 1990, he was charged with several counts of burglary and theft. His parole was revoked, and between November and January he was transferred at least twice between the Benton County Jail and the Arkansas Department of Correction (ADC).
In January, while at the Benton County Jail, Hufford attempted suicide. On February 12, 1991, the Trial Court granted his motion for a mental evaluation. The order specified he be committed to the State Hospital in Little Rock for a period not to exceed 30 days. The next day, the Benton County Sheriff returned Mr. Hufford to the ADC.
Mr. Hufford was evaluated at the ADC by doctors from the Arkansas State Hospital on October 9, 1991, approximately seven and one-half months after the judge’s order. The evaluation concluded Hufford was capable of assisting in his defense. Hufford was granted a continuance on March 5,1992, until July 22,1992, so he could have additional time to prepare for trial. On July 23, 1992, he was convicted and sentenced.
1. Speedy trial
A defendant charged with an offense and incarcerated pursuant to a conviction for another offense shall be entitled to have the charge dismissed if not brought to trial within twelve months from the time the charge is filed or the time of arrest, whichever occurs first. Ark. R. Crim. P. 28.1(b) and 28.2(b). When a defendant is not brought to trial within this twelve-month period, the State has the burden of showing the delay was legally justified. Brawley v. State, 306 Ark. 609, 816 S.W.2d 598 (1991). Hufford contends the seven and one-half month mental examination delay was due to a lack of good faith and due diligence, and the State is to be charged with that time in calculating the speedy trial period.
The time necessary to complete a mental examination requested by a defendant is excluded from the twelve-month period in the speedy trial rule. Arkansas Rule of Criminal Procedure 28.3(a) states that the twelve month period excludes, “[t]he period of delay . . . including but not limited to an examination and hearing on the competency of the defendant and the period which he is incompetent to stand trial.”
The facts in the Brawley v. State, supra, case were similar to those in this case. The defendant’s mental examination was delayed for nine and three-quarters months. Brawley argued that time should not be excluded as he was not responsible for the delay. We stated “[t]he literal language of Rule 28.3(a) states simply that the period required by a competency examination is excluded. Brawley cites no authority for his assertion that the burden should shift back to the State, and we are not persuaded by his argument.” 306 Ark. at 613, 816 S.W.2d at 601.
2. Due process
Mr. Hufford next contends he was denied due process when the State failed to comply strictly with the Trial Court’s order committing him to the Arkansas State Hospital for evaluation. Although Hufford was not transferred to the State Hospital, he was examined by doctors from the State Hospital. We find this was substantial compliance with the order and with the examination requirements found in Ark. Code Ann. § 5-2-305(b) (Supp. 1991). See Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992).
Hufford also contends his evaluation was insufficient to determine his mental condition. The report to the Trial Court by the doctor conducting the examination stated that many tests could not be completed because of Mr. Hufford’s uncooperative and hostile behavior. Hufford presented nothing to show he was not responsible for the uncooperativeness and hostility described in the report. Under those circumstances, we do not know what more could have been done to comply with his request to be examined.
Affirmed. | [
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Robert H. Dudley, Justice.
In 1992, appellee was arrested and found to be in possession of 4.754 grams of a cocaine based substance. In January of 1993, he pleaded guilty to possession of a controlled substance with intent to deliver. The trial court imposed a sentence of ten years for the crime, but suspended the execution of eight years of the sentence. The State objected to the suspension of part of the sentence and argued that the applicable 1992 statutes, Ark. Code Ann. §§ 5-64-401 (a)(1)(i) (Supp. 1991) & 5-4-301 (a)(1)(f) (Supp. 1991), required the trial court to sentence appellee to serve not less than ten years in the penitentiary and that the applicable statutes provided that the sentence could not be suspended. The trial court overruled the State’s objection, and the State appeals from the ruling. The ruling was in error. We reverse and remand.
Pursuant to A.R.Cr.P. Rule 36.10(c), we will accept appeals by the State when our holding will set a precedent that would be important to the correct and uniform administration of justice. The first question presented is whether this is such a case. Act 192 of 1993, which became effective on August 13,1993, or after the sentence was fixed, amends the applicable 1992 statute to allow a trial judge to do just what the trial court did in this case. The 1993 Act is entitled “An Act To Amend Arkansas Code 5-4-104 and 301 To Allow The Suspension Of Sentences For Certain Drug Offenses; And For Other Purposes.” It is clear that this case would not be important to the uniform administration of justice if the trial court could, upon remand, resentence the defendant in the same manner as was done the first time.
The State argues that the statute in effect on the date of the crime was committed is the statute that must govern sentencing, see Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983), and, at the time this crime was committed, the trial court could not suspend the sentence. The State additionally argues that, in the absence of a provision stating that an act will apply retroactively, the Act will apply prospectively only. See Arkansas Fire and Police Pension Review Bd. v. Stephens, 309 Ark. 537, 832 S.W.2d 239 (1992). The State has correctly stated the general rules that are applicable when punishment is enhanced in any manner. If it were otherwise, a penalty might be increased after a crime had been committed in violation of the ex post facto prohibition. See Ark. Const. art. 2, § 17. However, in this case the General Assembly reduced the penalty after the crime was committed, but before resentencing can be had. In the past we have held that when the General Assembly amends an act to reduce the punishment after the commission of an offense, but before sentencing, the sentence is to be fixed at the reduced punishment in accordance with the amended act. Clark v. State, 246 Ark. 876, 440 S.W.2d 205 (1969). If we hold that the trial court erred in construing the statutes in effect at the time of the commission of the crime, we will remand for resentencing, and, if we follow Clark v. State, and hold that the trial court could impose the very same sentence that it fixed originally, we would do nothing for the uniform administration of justice. We would have only performed a vain and useless act, and the law does not require vain and useless acts. Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989) (supplemental opinion denying rehearing). Thus, the first issue is whether Clark v. State is still controlling.
The Arkansas Criminal Code, enacted in 1975, had, among its purposes, statewide uniformity in sentencing. Ark. Code Ann. § 5-4-104, a part of the criminal code, sets out a comprehensive list of the dispositions available to the sentencing court. Ark. Code Ann. § 5-4- 104(a) (1987) provides that a convicted defendant shall not be “sentenced otherwise than in accordance with this chapter.” By case law we expanded the literal meaning of the quoted language to say that statutes that define a criminal offense and also possess their own sentencing provisions will control over the general code language. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318, rehearing denied, 283 Ark. 434, 678 S.W.2d 318 (1984). Since the enactment of the code, we have consistently held that sentencing shall not be other than in accordance with the statute in effect at the time of the commission of the crime, Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983), and that sentencing is now controlled entirely by statute, Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981). Thus, the criminal code sentencing provisions supplanted the case law of Clark v. State on sentencing. Consequently, the holding in this case will affect the uniform administration of justice since there are other cases in the same posture as this one.
The State’s argument on the merits is valid. At the time the defendant committed the crime, the applicable statutes provided that the trial court was required to sentence him to serve not less than ten years in the penitentiary, and that sentence could not be suspended. The defendant pleaded guilty on January 25, 1993, to possession of cocaine with intent to deliver. The penalty for that crime at the time was set out in Ark. Code Ann. § 5-64-401 (a)(1) (i) (Supp. 1991) as follows:
(a) Except as authorized by subchapters 1-6 of this . chapter, it is unlawful for any person to . . . possess with intent to manufacture or deliver a controlled substance.
(1) Any person who violates this subsection with respect to:
(i) A controlled substance . . . shall be imprisoned for not less than (10) years nor more than forty (40) years, or life, and shall be fined an amount not exceeding twenty-five thousand dollars. . . . [Emphasis added.]
Ark. Code Ann. § 5-4-301 (a)(1)(F) (Supp. 1991), in effect at the time, prohibits suspension of the sentence as follows:
A court shall not suspend imposition of sentence as to a term of imprisonment nor place the defendant on probation for the following offenses:
Drug related offenses under the Uniform Controlled Substances Act. . . .
The defendant was convicted under the provisions of the Uniform Controlled Substances Act. Thus, the trial court erred in suspending a part of the sentence that had been imposed.
The defendant gives a number of arguments for upholding the trial court. We summarily dismiss those arguments by stating that the statute is clear, and there is no need for construction or interpretation of the statute. The statutes in effect at the time provided that the sentence imposed could not be suspended. Resentencing on remand is not prohibited by former jeopardy considerations. See Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985) and Caldwell v. State, 268 Ark. 713, 595 S.W.2d 253 (1980). Thus, we remand for resentencing.
Reversed and remanded. | [
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Steele Hays, Justice.
As a result of an intersection accident, Harold Gilbert brought this action for personal injuries against the other driver, Reginald Shine. The jury returned a verdict for the defendant and Gilbert now appeals from the denial of a new trial on two assertions of error: the verdict was not supported by substantial evidence and the trial court abused its discretion in allowing counsel for the defendant to cross-examine him as to prior misdemeanor convictions for hot checks. Finding no error, we affirm.
When a motion for a new trial is made the test to be applied by the trial court is whether the verdict is against the preponderance of the evidence. ARCP 59(a). But the test on review, where the motion is denied, is whether the verdict is supported by substantial evidence, giving the verdict the benefit of all reasonable inferences permissible under the proof. Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 226 (1982).
The collision in this case occurred on Martin Luther King Boulevard at its juncture with Interstate 630. Gilbert’s pickup truck was behind a van waiting to turn left (south) onto Martin Luther King Boulevard. When the light changed, the van moved forward followed by Gilbert. As Gilbert was turning left his truck was struck by a vehicle driven by Reginald Shine.
Gilbert’s testimony was that the light was green for him and red for Shine, a version confirmed by the driver and a passenger in the van. Shine, however, testified that the light was green for northbound traffic. He said he did not see the van prior to the collision:
Q: Do you have a specific recollection of the light of it being green—
A: I looked up at it and I saw a green you know, I didn’t see red, I saw a green, maybe. . .
Q: How long did you have your foot on the brake?
A: I didn’t have it on very long because I thought the light was green and I was going through it, and when I looked up the truck came.
Gilbert argues that Shine’s testimony proves he wasn’t keeping a proper lookout because he failed to see the van and must have been looking down prior to the collision. This testimony, he argues, is proof that Shine’s version of the accident was not physically possible. But whether the light was red or green was a disputed issue and however implausible Shine’s account of the incident may seem, it was for the jury to resolve. Nicholson v. Century 21, 307 Ark. 161, 818 S.W.2d 254 (1991). It is the sole province of the jury to determine not merely the credibility of the witnesses, but the weight and value of their testimony. Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1989).
As to Gilbert’s contention that the jury’s verdict was unsupported by substantial evidence, there are two answers: first, Shine’s testimony that the light was green suffices, and, second, where the verdict is against the party having the burden of proof, as in this instance, a literal application of the rule would be untenable, as the defendant may have introduced little or no proof, yet the verdict was for the defendant. We. have examined the rule in that context in a number of cases: See Morton v. American Medical International, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985); Schaeffer v. McGhee, 286 Ark. 113, 689 S.W.2d 537 (1985), and Spink v. Mourton, 235 Ark. 919, 362 S.W.2d 665 (1962).
What evidently occurred in this case is that Gilbert failed to convince the jury by a preponderance of the evidence of one or more of the following elements: that Shine was at fault, that Gilbert sustained injuries, or that his injuries were the proximate result of Shine’s negligence. AMI 203.
As to the issue of the checks, Gilbert made a motion in limine to exclude evidence of prior violations of Arkansas hot check laws. The motion was denied and at trial Gilbert testified on direct examination about hot checks. Shine’s counsel then probed the issue on cross-examination and over Gilbert’s objection the trial court permitted the inquiry as touching on deception with an admonition to the jury to consider it for purposes of credibility. A.R.E. 609(a).
On appeal, Gilbert does not question the denial of the motion in limine, rather, he maintains the trial court permitted the defense to go into too much detail and spend an inordinate amount of time, “exceeding all bounds of probative benefit.” However, we find no objections to the trial court on the basis now argued. There were objections based on relevancy and materiality, or because Gilbert was not represented by counsel when the prosecutions occurred, but nothing in keeping with the argument advanced on appeal. Fuller v. Johnson, supra.
Affirmed.
Holt, C.J., not participating. | [
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Per Curiam.
Billy J. Britton, by his attorney, has filed a motion for rule on the clerk.
The motion admits that the record was not timely filed and that it was no fault of the appellant.
However, the motion does not state good cause for granting the motion as discussed in our per curiam issued February 5, 1979, 265 Ark. 964. If the attorney for Billy J. Britton will concede that it was his fault that the record was not filed, or if other good cause is shown, then the motion will be granted. The present motion for rule on the clerk is denied. | [
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Jack Holt, Jr., Chief Justice.
On October 2, 1980, the appellee, Brent Tyrrell, purchased a tract of land by warranty deed from Duo-Fast of Arkansas, Inc. (Duo-Fast). The tract consisted of two parcels of land and was subject to a mortgage in favor of Worthen Bank & Trust Company, N.A., and a second mortgage in favor of Duo-Fast. Tyrrell operated the business of Brent Tyrrell GMC Truck, Inc., on the property.
Duo-Fast received the 1980 tax statement in its name and forwarded the tax statement to Tyrrell, who went to the office of the Pulaski County Assessor (Assessor) to ensure the change of ownership on the tax records. Tyrrell paid $1864.04 for the 1980 taxes.
The Assessor, however, transferred only one of the parcels to reflect the change in ownership on the tax records. As a result, in 1982 Tyrrell received a 1981 tax statement, in the amount of $ 1682.90, for only one of the parcels. The 1981 taxes on the parcel that was not transferred, in the amount of $181.12, became delinquent, and the parcel was certified to the State Land Commissioner for tax sale in June 1985. In June 1988, the property was offered for public sale; however, no acceptable bids were received, and the property was not sold. As a result, on August 18, 1988, the appellants, Marshall and Diana Aldridge (Aldridges), bought the parcel at a negotiated sale. Later that month, the Aldridges notified Tyrrell that they had purchased the parcel and requested the payment of rent.
Prior to the Aldridges’ communication, Tyrrell had not been notified of the tax sale or his ability to redeem the property.
Tyrrell instituted this suit to set aside the limited warranty deed issued by the Land Commissioner on the basis of irregularities in the sale. The chancellor issued a decree setting aside the sale and cancelling the Aldridges’ limited warranty deed.
From that decree, the Aldridges appeal and allege five points of error: 1) that Tyrrell failed to state facts upon which relief could be granted because his complaint failed to name the county clerk or collector who were responsible for the tax records, instead of the assessor, 2) that Tyrrell was the proximate cause of any errors on the tax books because he failed to obey the law, 3) that because equity follows the law, and Tyrrell did not obey the law, then equity should not favor Tyrrell, 4) that the Chancellor’s finding of facts was clearly erroneous, and 5) that the chancellor erred when she declared two statutes unconstitutional when that issue had not been pled.
We find no merit to any of the points of error and, therefore, affirm.
FAILURE TO STATE FACTS
The Aldridges initially argue that Tyrrell failed to state facts upon which relief could be granted because his complaint failed to name the county clerk or collector who were responsible for the tax records, instead of the Assessor. We disagree.
The Aldridges argue that the duty of preparing and maintaining the tax books was initially that of the County Clerk, Ark. Code Ann. §§26-28-101 to-113 (1987), and that these responsibilities were transferred to the County Collector in 1983. 1983 Ark. Acts 626 § 2. They assert that the chancellor erred when she found that the Assessor made an error in failing to transfer ownership of the property on the tax books.
The taxation process necessarily involves a close interrelationship among the tax assessor, county clerk, and collector. Ark. Code Ann. §§ 26-26-501, -714, -715, -718 (1987), -716 (Supp. 1989); Ark. Code Ann. §§ 26-35-601, -1001 (1987). Specifically, section 26-26-501 (a)(1) (1987) addresses the general duties of the Assessor, which provides in pertinent part that “[t]he county assessor shall devote his entire time to the duties of his office. The assessor shall maintain an office ... for the purpose of taking a list of all real and personal property for that year required to be listed.”
We noted in Gilley v. Southern Corporation, 194 Ark. 1134, 110 S.W.2d 509 (1937), that an attempt by an owner, in good faith, to pay his taxes or to redeem his land after failure to do so, may not be defeated by the mistake, negligence, or other fault on the part of public officers in the discharge of their official duties.
This rule is dispositive in regard to the facts of this case. The Assessor is a public officer, and Tyrrell went to the Assessor’s office in a good faith attempt to ensure that the taxes on his property would be correctly billed and paid. The Chief Deputy Assessor admitted that his office did not change the ownership of the property. Because of the interrelationship of the tax assessor, county clerk, and collector, notice to the Assessor under these circumstances was sufficient. Tyrrell’s good faith attempt to pay his property taxes is not defeated by the Assessor’s mistake.
PROXIMATE CAUSE
The Aldridges also contend that Tyrrell’s failure to obey the law was the proximate cause of any error on the tax books and that his resultant failure to receive notice would not void the tax sale.
Although section 26-26-501 (a)(2) provides in pertinent part that “[a]ny person owning real or personal property, or both, shall, at the time and place indicated in this section, deliver to the assessor, either in person or by agent, a verified list of his real and personal property . . . ,” the Aldridges’ reliance on Sadler v. Hill, 243 Ark. 247, 419 S.W.2d 298 (1967), and Leonard v. Thompson, 228 Ark. 136, 306 S.W.2d 869 (1957), is misplaced.
The chancellor addressed this point of error in her letter opinion of March 14, 1989:
The Sadler and Leonard cases both involved a situation in which the court determined that the fact that the plaintiff landowners in the two cases were responsible for the land not being assessed in their respective names barred them from attempting to invalidate the tax sale on that basis. In Sadler, a landowner named P.H. Williams paid taxes on the land in the name of “W.T. Williams.” Notice of the sale was published in the name of W.T. Williams, and the court held this to be sufficient compliance with the law.
The court in Sadler, with little discussion of the issue, relied upon the Leonard case in reaching its decision. In Leonard, the landowner failed to comply with the requirement that he deliver a verified list of his real property to the Assessor. Due to this failure to assess, the property continued to appear on the record in the name of the previous owner. The Leonard court stated:
We did not comply with the law: he left the lands assessed in the name of the Dorsey Land & Lumber Company. Now he comes into court and seeks to void an improvement district foreclosure sale because he was not named in the published notice as the owner of the land, when it was his own failure to comply with the statute on the assessing of property . . . that prevented him from being listed as owner.
While it is true that Mr. Tyrrell, like the landowner in Leonard, did not comply with the letter of the statute, in the instant case we have an additional fact — the error on the part of the Assessor. Further, though Mr. Tyrrell did not present a verified list of his real property, he did take steps to assess, and to assure that he was being taxed on the property he owned. There is at least some fault on the part of both Mr. Tyrrell and the Assessor. The case thus boils down to a determination of whose fault was greater.
. . . [Tyrrell’s] purpose in personally visiting the Assessor’s office was to see that he was assessed correctly — to make sure that the land was reflected in the tax records as being owned by him Ark. Code Ann. § 26-26-718 (1987) states that “[i]t is the duty of the several tax assessors of the state to correctly describe according to ownership of each parcel of real property in the county, and every acre of land or town or city lot must be accounted for on the assessment roll.” In this case, the taxpayer substantially complied with the statute on one hand and a public official failed to comply with another statute (through mistake or the like) on the other. . . .
We agree with the chancellor’s finding that Tyrrell substantially complied with his statutory duty to assess his property. This is all that is necessary. Her determination as to the relative fault of the parties was not essential or required.
EQUITY AND FINDING OF FACTS
The Aldridges also contend that equity should not favor Tyrrell because he did not obey the law, in that he failed to provide a verified list of his real property to the Assessor, Section 26-26-501(a)(2), supra, and that the chancellor’s finding of facts was clearly erroneous.
On appeal, we consider the evidence in the light most favorable to the appellee, and, although we try chancery cases de novo on the record, we will not reverse a finding of fact by the chancellor unless it is clearly erroneous. McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988) (citing Constant v. Hodges, 292 Ark. 439, 730 S.W.2d 892 (1987) and Milligan v. General Oil Co., 293 Ark. 401, 738 S.W.2d 404 (1987)).
In Vanderbilt v. Washington, 249 Ark. 1070, 463 S.W.2d 670 (1971), we recognized that “. . .[t]he law in Arkansas is rather clear that where a taxpayer makes an attempt in good faith to pay his taxes and is prevented by the mistake, negligence or other fault on the part of the Collector, the sale of his land for nonpayment of taxes is void.” See Scroggin v. Ridling, 92 Ark. 630, 121 S.W. 1053 (1909); Robertson v. Johnson, 124 Ark. 405, 187 S.W. 439 (1916); Forehand v. Higbee, 133 Ark. 191, 202 S.W. 29 (1918).
Again, although Tyrrell did not literally comply with section 26-26-501 (a)(2), he demonstrated substantial compliance with the statute in that he personally visited the Assessor’s office to ensure that the records reflected the change of ownership for the property, and the Assessor’s office admitted that they did not do so.
The Aldridges’ arguments on this point of error are not persuasive; consequently, the chancellor’s finding that equity favored Tyrrell is not clearly erroneous.
UNCONSTITUTIONAL STATUTES
Finally, the Aldridges assert that the chancellor erred when she declared two statutes unconstitutional when that issue had not been pled. The Aldridges raised Ark. Code Ann. § 26-34-102 (1987) and Ark. Code Ann. § 26-37-208 (1987) as affirmative defenses.
Section 26-34-102 provides as follows:
It shall not be necessary to the validity of an assessment or of a sale of land for taxes that it be assessed to its true owner. Rather, the taxes shall be a charge upon the real and personal property taxed and, when sold, shall vest the title in the purchaser without regard to who owned the land or other property when assessed or when sold.
Section 26-37-208 provides as follows:
No sale of any land or lot for delinquent taxes shall be considered invalid on account of its having been charged on the tax book in any other name than that of the rightful owner if the land or lot is, in other respects, sufficiently described on the tax books and the taxes for which the land or lot is sold are due and unpaid at the time of the sale.
The chancellor’s ruling in regard to this matter stated:
Finally, I need to mention that I do not find that the statutes cited as affirmative defenses by the defendants control the outcome of this case. The statutes, ... , in general, provide that a tax sale is not invalidated by the fact that it was assessed in the name of someone other than the true owner. Both of these statutes were first enacted in 1883. Only one of them has ever been cited in a reported case. I find that these statutes have to be read in light of the case law and other statutes cited earlier. The statutes should apply to a case where the taxpayer can be faulted for the fact that the property is assessed in someone else’s name. To say that the statutes apply in a case such as the present is to say that the state may, through its own error, assess the wrong person for the taxes on a landowner’s property, fail to notify him that the taxes are due, fail to give him notice of the sale, and thereby deprive that person of his ownership rights in the property. If the statutes are actually meant to apply in such a situation, they are almost certainly unconstitutional.
The chancellor’s holding that the Aldridges’ affirmative defenses were not controlling in this case is far different from a holding that the statutes are unconstitutional.
Accordingly, we affirm. | [
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Bill E. Ross, Special Justice.
This is an appeal by the parents (Ramseys) of a juvenile who was admitted to Rivendale Hospital in Benton, pursuant to a Juvenile in Need of Supervision (JINS) order. The appellee, Arkansas Department of Human Services (Department), denied retroactive Medicaid benefits following an administrative hearing. The circuit court reviewed and affirmed. On appeal, the Ramseys argue that the circuit court should have reversed what they claim is the Department’s arbitrary application of its “spend-down” procedure in denying retroactive Medicaid benefits. We do not agree with the argument and affirm.
The Congress, in 1965, established the Medicaid Program, which is a medical assistance program for people “whose income and resources are insufficient to meet the costs of necessary care and services.” 42 U.S.C. § 1396-1396k (Supp. II1982); Atkins v. Rivera, 477 U.S. 154, 156 (1986). Medicaid benefits are provided automatically for the “categorically needy,” persons who receive welfare payments under the Aid for Dependent Children (AFDC) and Supplemental Security Income (SSI) programs. If a state participates in the Medicaid program, it must provide coverage for the “categorically needy.” 42 U.S.C. § 1396a (a)(10)(A) (Supp. II 1982).
Congress also enacted an optional program for the “working poor” who were deemed “medically needy.” The “medically needy” become eligible for medicaid benefits when their income and assets are reduced by incurred medical expenses that reduce their income and assets below certain established levels. This then puts them in roughly the same position as the “categorically needy.” Public Health, 42 C.F.R. §§ 435.301, 435.308 (1987); 42 U.S.C. § 1396a(a)(17) (Supp. II 1982). Arkansas has elected to include this optional plan under its State Medicaid Plan. Therefore, it must comply with the requirements imposed by the federal Medicaid statutes. Atkins v. Rivera, supra; 42 U.S.C. § 1396a, supra.
The Ramseys admitted the juvenile to Rivendale on February 12,1987. The Pulaski County Probate Court entered a JINS order on February 27, 1987, stating that the placement was appropriate and should be continued. Rivendale undertook, with the parents’ consent, the filing of a “medically needy” application for Medicaid. The application showed that the juvenile had no income. It also showed that a resource, in the form of a Merrill-Lynch account containing approximately $5,000.00, existed in Mrs. Ramsey’s maiden name as custodian for the juvenile. The Department’s Saline County office received the application on March 9, 1987, and denied it on March 16, 1987. Denial was based on an initial determination that the Merrill-Lynch account was a resource available to the juvenile in excess of the Medicaid $1,800.00 resource eligibility limit. The parents were notified on March 23, 1987, and they immediately filed an appeal for an administrative hearing challenging the determination that the account was available to the juvenile.
Also on March 23, the Department’s county office, at the Ramseys’ request, made a written inquiry to the Department’s Medicaid Section for further clarification of the resource status of the Merrill-Lynch account. On March 30,1987, the Medicaid Section responded and stated that the account was still considered a resource available to the juvenile. On April 23, 1987, the Department recognized expenses paid from the Merrill-Lynch account that reduced it to the $ 1,800.00 resource eligibility limit. The juvenile’s Medicaid eligibility was established effective as of May 1,1987. Approximately $36,000.00 in medical expenses had been incurred between the juvenile’s hospital admission in February and his effective Medicaid eligibility on May 1.
The Ramseys, in their March 23, 1987, request for an administrative hearing, challenged the availability of the Merrill-Lynch account to the juvenile. However, the principal issue at the July 30, 1987, administrative hearing was whether the Department should have applied the same “spend-down” procedure to the Merrill-Lynch resource account that was used by the Department in determining eligibility for “medically needy” applicants.
Under the “medically needy” procedure, applicants are permitted to “spend down” their excess income for medical expenses. The applicants are considered eligible for Medicaid while spending down their excess income. The policy objective is to assist the working poor by providing some Medicaid assistance after their medical expenses reduce available income to the Medicaid income eligibility limit.
On the other hand, the Department requires applicants with excess resources to reduce their resources to the resource eligibility limit of $ 1,800 by paying qualifying expenses. Eligibility is not established, and Medicaid assistance is not provided at all, until the resource eligibility limit has been reached. The policy objective is to deny benefits to persons with resources until the applicant’s wealth in hand is reduced to a certain eligibility limit by requiring the applicant to pay qualifying expenses.
The Ramseys claim that the Department acted arbitrarily by not establishing Medicaid eligibility and by permitting a “spend-down” of the Merrill-Lynch account to the $1,800.00 resource eligibility limit in the same manner that an applicant with excess income can become eligible by a “spend-down” to the income eligibility limit. Had the Department acted as the Ramseys claim it should have acted, Medicaid eligibility would have been established at the latest on, or shortly after, February 27, 1987, when the probate court entered its JINS order. Medicaid then would have covered all allowable medical expenses after the Merrill-Lynch account had been reduced to the $1,800.00 resource eligibility limit.
The record indicates, however, that on March 23,1987, the Ramseys did contest the initial Department determination that the Merrill-Lynch account was a resource available to the juvenile and that they conceded the point in April 1987 by then making qualifying expenses to reduce the account to the $1,800.00 resource eligibility limit. Thus, the Ramseys, in effect, waived the opportunity to follow the Department’s resource eligibility procedure at the outset by not immediately reducing the account in order to quickly establish Medicaid eligibility. Had they done so, they subsequently could have contested the availability of the Merrill-Lynch account to the juvenile and claimed reimbursement for the expenses made to reach the $1,800.00 resource eligibility limit.
Accordingly, since the Ramseys didn’t reduce the resource account to the qualifying limit, the issue to be resolved is whether the Department is required by law to apply to the Ramseys’ excess resources the same “spend-down” procedure that the Department applies to an applicant’s excess income, which permits Medicaid eligibility during the “spend-down” to the income eligibility limit.
The question of different treatments by a state under the Equal Protection Clause covering “Economics and Social Welfare classifications” turns on whether the state has a reasonable basis for its actions, and the state does not violate the clause simply because the classifications made by its laws are imperfect. Dandridge v. Williams, 397 U.S. 471 (1971).
The federal regulations that undergird the Arkansas Medicaid Plan and its implementing state policies and regulations provide separately for determining “medically needy” income eligibility, codified in Public Health, 42 C.F.R. §§ 435.831, 435.832 (1987), and for determining “medically needy” resource eligibility, codified in Public Health, 42 C.F.R. § 435.845 (1987). Similarly, the federal regulations governing “Optional Coverage of the Medically Needy,” provide in Public Health, 42 C.F.R. § 435.301 (a)(1)(ii) (1987) for the provision ofMedicaid to individuals with excess income provided, “. . . [they] have incurred medical expenses at least equal to the difference between their income and the applicable income standard. . . .” There is no similar “spend-down” provision for resources in the Code immediately following Public Health, 42 C.F.R. § 435.301(a)(2) (1987) and in the sections cross-referenced therein.
There is one exception for a resource “spend-down” under the “Section 1634 Agreement” between Arkansas and the Social Security Administration. Employees’ Benefits, 20 C.F.R. §§ 416.1240—416.1246 (1989). This exception applies only to individuals who meet all but the resource requirements for the receipt of Supplemental Security Income (SSI). These individuals have six months to dispose of non-liquid resources, with all or a portion of the proceeds to be applied to Medicaid assistance rendered during the six month period. 20 C.F.R. §§ 416.1240—416.1246, supra. The Ramseys’ juvenile is not enumerated among the categories targeted for this exception. In any event, the Ramseys’ Merrill-Lynch account is not a non-liquid resource.
The pertinent federal statutes and regulations and their application through the Arkansas State Medicaid Plan establish no authority in any category for a “spend-down” of excess resources that is similar or identical to the expressly authorized “spend-down” of excess income, with the exception of the inapplicable provision noted above.
On appeal, we give the evidence its strongest probative force in favor of the ruling of the administrative agency. Arkansas Dept. of Human Services v. Simes, 281 Ark. 81, 661 S.W.2d 378 (1983).
The construction of a statute by an administrative agency should not be overturned unless it is clearly wrong, and the court will not substitute its judgment for that of an administrative agency unless the administrative agency’s decision is “arbitrary and capricious.” Arkansas Contractors License Bd. v. Butlers Constr. Co., Inc. of Barling, Arkansas, 295 Ark. 223, 748 S.W.2d 129 (1988); Green v. Carder, 282 Ark. 239, 667 S.W.2d 660 (1984).
On appeal, the Ramseys rely on the point that the Department acted arbitrarily in applying its resource “spend-down” policy in denying retroactive medical benefits that it approves in “medically needy” income cases. Administrative action may only be regarded as arbitrary when it is not supportable on any rational basis, and something more than mere error is necessary to meet the test. First Nat’l Bank of Fayetteville v. Smith, 508 F.2d 1371 (8th Cir. 1974), cert. denied, 421 U.S. 930 (1975). The party challenging an action under this standard must prove that it was a willfull and unreasoning action, without consideration and with a disregard of the facts or circumstances of the case. Arkansas State Bd. of Nursing v. Long, 8 Ark. App. 288, 651 S.W.2d 109 (1983).
The rationale behind treating resources and income differently is that income merely restores resources to their previous levels. It is accrued day by day in return for labor. On the other hand, resources in place, or acquired, are viewed as wealth in hand that increases the recipient’s well-being. A rational basis, therefore, can be said to exist for this distinction in treating resources and income differently. See LaMadrid v. Hegstrom, 830 F.2d 1524 (9th Cir. 1987); Dandridge v. Williams, supra.
We find that the Department’s construction of the pertinent authorities precludes a finding that it acted contrary to law. Accordingly, its action is rational and not willfull and unreasoning. Our required review of the entire record, as noted in Alcohol Beverage Control v. R.C. Edwards Distrib. Co., Inc., 284 Ark. 336, 681 S.W. 2d 356 (1984), shows that, with regard to the facts and circumstances of this case, there is substantial evidence, as well as a correct application of the law, to support the Department’s decision to deny retroactive Medicaid benefits to the Ramseys’ minor.
Affirmed.
Hays, J., not participating. | [
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Otis H. Turner, Justice.
This action commenced as a claim filed by appellants with the Arkansas Claims Commission.
Potashnik Corporation and Sajan Construction Corporation contracted with the Arkansas Highway and Transportation Department for certain highway construction. Following default of the original contractors, Fireman’s Insurance Company as surety on the contractor’s performance bond, retained Blattner and Sons, Inc. to complete the projects. During completion of construction, disputes arose between Fireman’s and Blattner on the one hand and the Arkansas Highway and Transportation Department on the other, over costs and damages alleged to have occurred during completion, for which Fireman’s and Blattner claimed entitlement from the department.
A complaint was filed with the Arkansas State Claims Commission and the hearing was held at which Fireman’s and Blattner were afforded an opportunity to prove their claim. A complete transcript of that hearing was made and preserved. The Claims Commission subsequently issued its written order finding no improper action on the part of the Highway and Transportation Department and denied the claim in its entirety.
From that order the appellant petitioned the circuit court for review under the provisions of the Administrative Procedure Act and subsequently filed in circuit court a petition for writ of certiorari seeking a reversal of the Commission’s order and entry of judgment, or in the alternative, a de novo jury trial or oral hearing and written briefs. The appellees moved to dismiss the petition for writ of certiorari and petition for Administrative Procedure Act review. After a hearing the motion was granted and the petitions dismissed. From this order of dismissal, Fireman’s and Blattner bring this appeal.
Though the appellants make compelling arguments, we are persuaded that the sovereign immunity granted by the Constitution of the State of Arkansas bars an action against the state and that the procedure for hearing claims as established by the General Assembly meets due process requirements and that the order of the circuit court should be affirmed.
Six alleged errors are asserted by appellant: (1) the Administrative Procedures Act applies here and judicial review from the Claims Commission should therefore be granted, (2) Arkansas case law dictates a review of the Claim’s Commission decisions by certiorari to the circuit court; (3) sovereign immunity would not be violated by review under either the Administrative Procedure Act or on certiorari; (4) the circuit court was in error in holding that the Claims Commission is an arm of the General Assembly; (5) the Claims Commission’s order and the court’s denial of review is violative of appellant’s due process rights; (6) the Claims Commission’s order and the dismissal by the court of appellant’s petition for review is violative of the doctrine of separation of powers.
In holding that the doctrine of sovereign immunity as dictated by the Arkansas Constitution and interpreted by a long line of case law bars the relief sought by appellants, the first five of appellants’ points will be considered together. The Constitution of Arkansas provides that the state of Arkansas shall never be made a defendant in any of her courts. Arkansas Constitution of 1874, Article 5, Section 20. The completeness of the intent of such immunity is best illustrated by the long and unequivocal line of cases expressly recognizing and protecting the immunity. As early as Pitcock v. State, 91 Ark. 527, 121 S.W. 742 (1913), this court held that the constitutional prohibition was not merely declaratory that the state could not be sued without her consent, but that all suits against the state were expressly forbidden. Further, where the pleadings show that the action is, in effect, one against the state, the trial court acquires no jurisdiction.
Extending this immunity to its next logical step, we held that where a suit is brought against an agency of the state with relation to some matter in which the defendant represents the state in action and liability, and the state, though not a party of record, is the real party in interest so that judgment for plaintiff would operate to control the action of the state or to subject the state to liability, the action is, in effect, one against the state and prohibited by the constitutional bar. Page v. McKinnley, 196 Ark. 331, 118 S.W.2d 235 (1938). See also, Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986).
To further illustrate the intent of the General Assembly to keep and maintain a doctrine of complete sovereign immunity, this court, in 1979, while recognizing the complete immunity enjoyed by the state for the acts of its officers and employees, held that in the absence of specific legislation extending immunity to those officers and employees, they were not individually protected under the umbrella of the state’s immunity. At the very next session of the legislature, a statute was passed extending the state’s immunity to its officers and employees in the absence of malicious acts. Ark. Code Ann. § 19-10-305 (1987).
The only exception to total and complete sovereign immunity from claims which has been recognized by this court occurs when the state is the moving party seeking specific relief. In that instance the state is prohibited from raising the defense of sovereign immunity as a defense to a counterclaim or offset. Parker v. Moore, 222 Ark. 811, 262 S.W.2d 891 (1953).
In addition to Article 5 of the Constitution invoking sovereign immunity in relation to actions against the state, the framers of the Constitution included a subsequent provision stating that the General Assembly shall provide for payment of all just and legal debts of the state. Arkansas Constitution of 1874, Article 16, Section 2. For many years these debts, after processing by the legislature, were paid by special acts of the General Assembly for claimants the legislature deemed deserving. As the state grew and the legislative demands increased, the General Assembly was apparently unable to devote sufficient time to the investigation and action required in handling each individual claim. The answer was passage of the first Claims Commission Act in 1933. A similar act was passed each two years thereafter until Act 53 of the 1945 General Assembly was enacted, creating the Board of Fiscal Control, the first continuing body to consider whether the individual claims against the state were “just and legal debts” which should be honored and worthy of recommendation to the General Assembly for the appropriation of funds for payment.
In 1949 the General Assembly created the State Claims Commission by Act 462 of 1949, which granted to the Commission exclusive jurisdiction over all claims against the state and its agencies, departments and institutions (with certain exceptions not here involved). Section 6 of Act 462 provided that “[t]he action taken by the Commission with respect to the allowance or disallowance of a claim, in whole or in part, shall be final and binding on all parties thereto and shall not be subject to judicial review at their instance.” (Emphasis added.) Further, that “[ajfter the hearing, the Commission shall prepare a finding of fact and make a determination for disposition of the claim, which finding and determination, together with the entire record shall be made available to the General Assembly at its session next succeeding the Commission’s action on the claim.” Thereafter, “the State Comptroller shall submit to [the General Assembly] an appropriation bill covering specifically each claim approved by the Commission prior to that date.” Section 6 of the Act concluded by declaring that the Act shall in no manner be construed as enlarging the liabilities of the state or any of its agencies.
Act373of 1951 amended sections 1,4,7,9,10,and 12of Act 462 of 1949 and repealed sections 8 and 14. Section 6, however, was neither amended nor repealed.
Section 1 of Act 276 of 1955 abolished the “State Claims Commission” established by Act 462 of 1949 and established a new commission, the “Arkansas State Claims Commission,” which was declared in Section 3 to “have all the powers, duties and jurisdiction of the Commission which it replace [d].” Act 276 further directed that the “Commission” thus created “shall be governed by all laws now or hereafter provided for the government of claim proceedings in this State.” Section 4 repealed “[a] 11 laws and parts of laws in conflict herewith.”
The repealer clause, however, did not affect section 6 of Act 462 of 1949. Nothing in the 1955 Act addressed the mechanics of Commission action and review. Instead, Act 276 of 1955 dealt with the composition of the Commission and the compensation of its members.
The legislature has thus created a method by which claims alleged to be “just and legal debts of the state” shall be filed, processed,'and reviewed by the General Assembly while preserving the state’s sovereign immunity as declared in the Constitution.
We are not impressed by appellants’ argument that the dismissal by the circuit court of the petition for certiorari and review under the Administrative Procedure Act constitutes a denial of appellants’ due process rights. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Armstrong v. Manzo, 380 U.S. 545 (1965). The due process requirements of the Constitution are satisfied when an adequate post-deprivation procedure exists. See Parratt v. Taylor, 451 U.S. 524(1981).The Arkansas post-deprivation procedure is through the Claims Commission process.
The Arkansas Administrative Procedure Act, Ark. Code Ann. §§ 25-15-201 to -213 (1987 and Supp. 1989), providing for a review from actions of state commissions and agencies, has no application to the State Claims Commission. The act creating the Claims Commission clearly creates it as an arm of the legislature, reporting solely to that body. Section 25-15-202(1) defining “agency”, states that agency means each board, commission, department, officer or other authority of the government of the state of Arkansas, whether or not within or subject to review by another state agency, except the General Assembly, the courts and the Governor.
Since the act creating the Claims Commission grants the power of review only to the legislature and without question delegated to the Commission duties which are, under the Constitution, solely the duties of the General Assembly, the Claims Commission proceedings are thus proceedings of the General Assembly and not subject to the provisions of the Administrative Procedure Act.
Appellants are thus obliged to seek review by the General Assembly under the Claims Commission rule promulgated by the Commission under the authority of the General Assembly. Appellants have elected to bypass those rules and proceedings and seek direct review by the judicial system without exhausting the remedies provided by the Claims Commission.
Appellants have no standing to argue a denial of due process unless and until they have exhausted their procedural remedies. See Barr v. Arkansas Blue Cross and Blue Shield, Inc., 297 Ark. 262, 761 S.W.2d 174 (1988). In this instance the remaining remedy is a review by the General Assembly.
Since we hold that the Claims Commission is an arm of the General Assembly and the General Assembly has total control over the determination of, and subsequent funding for, payment of the “just debts and obligations of the state” — all other avenues for redress through legal proceedings being barred by the sovereign immunity provision of the Arkansas Constitution — appellants’ argument that the State Claims Commission system, without a provision for judicial review, violates the separation of powers doctrine, is without merit.
Affirmed. | [
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Per Curiam.
The appellees filed separate complaints with the Arkansas Real Estate Commission (Commission) against licensed real estate brokers, Gary Jenkins and John Massey, d/b/a Gary Jenkins & Company. The complaints contained various allegations of fraud and misrepresentation. In November 1988, the Commission conducted hearings and revoked the licenses of Gary Jenkins and John Massey. Prior to the commencement of the proceedings before the Commission, Jenkins received a discharge in bankruptcy for all debts except that of Dwight and Beverly Reeves. In February 1989, the Commission ordered John Massey to repay the appellees and directed Jenkins and Massey jointly to pay $8,700 to Dwight and Beverly Reeves.
When appellees had not been paid after thirty days, they asked the Commission for reimbursement from the Real Estate Recovery Fund (Fund) pursuant to Ark. Code Ann. § 17-35-406 (1987). On April 10,1989, the Commission conducted a hearing and voted unanimously that a total of $58,700 should be paid to the appellees from the Fund. Of the $58,700, Dwight and Beverly Reeves were to receive $8,700, representing payment in full, Edith Raines was to receive the statutory limit of $10,000 and all other appellees were to share the remaining $40,000 on a pro rata basis. The Commission ordered payment of the claims based upon the statutory maximum of $50,000 for the acts of one licensee, Massey, [Ark. Code Ann. § 17-35-406(f)(l) (1989)] and ordered payment in full to the Reeves, the only claim against Jenkins not discharged in bankruptcy.
The appellees appealed the Commission’s decision to the Circuit Court of Craighead County pursuant to Ark. Code Ann. § 17-35-408(a) (1987) and the trial judge reversed the order of the Commission. The circuit court ordered the Commission to pay the appellees $100,000 from the Fund, representing the statutory limit of $50,000 per licensee. The Commission appeals from the order of the circuit court.
The preamble of Act 73 of 1979, now codified as Ark. Code Ann. §§ 17-35-401 to -409 (1987), clearly states that the Arkansas Real Estate Commission is to establish, maintain, and administer the Real Estate Recovery Fund and also that the Commission shall determine the amount of damages suffered by persons as a result of illegal or unethical broker activities. This language reflects the legislature’s intent to vest the Commission alone with the power to determine damages. Ark. Code Ann. § 17-35-407(e) (1987) expressly limits the circuit court’s jurisdiction:
The circuit court shall have no jurisdiction or authority to order payments from the fund in any amount in excess of either: (1) the amount determined by the commission; or (2) the limits set forth in § 17-35-406.
Here, the Commission determined that a total of $58,700 should be paid to the appellees. On appeal, the circuit court reversed the Commission’s ruling and ordered a total of $100,000 to be paid to the appellees, representing the statutory limit of $50,000 for the acts of each licensee. See, Ark. Code Ann. § 17-35-406(f)(1) (Supp. 1989). While$100,000 does not exceed the statutory limit with respect to two licensees, it does exceed the amount the Commission ordered to be paid from the Fund. Therefore, it appears doubtful from reading Ark. Code Ann. § 17-35-407(e)(1) (1987) that the circuit court has jurisdiction to order payment of an amount in excess of the amount allowed by the Commission. Another issue also arises in this respect — while the statute in issue is framed in terms of jurisdiction, some question exists whether the limitation set out in that law is actually a matter of jurisdiction. The parties, however, have discussed neither of these issues and while jurisdiction is a matter we will raise on our own, Arkansas Savings & Loan v. Corning Savings & Loan, 252 Ark. 264, 478 S.W.2d 431 (1972), we are reluctant in this case to decide that question without benefit of briefing. By this per curiam the parties are directed to supplement their briefs on the issues noted above.
Created in 1979, the Real Estate Recovery Fund authorizes payment to victims of unethical and unscrupulous brokers and salesmen not to exceed $10,000 for any one (1) violation, nor $50,000 for the acts of any one (1) licensee. See, Ark. Code Ann. § 17-35-406 (Supp. 1989). | [
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Otis H. Turner, Justice.
The appellant, Thomas Lee Deere, upon conviction of two counts of burglary, was sentenced to consecutive terms of thirty years and ten years. In addition, he was sentenced to thirty years on another burglary count and thirty years for the sale of a controlled substance; both sentences were to run concurrently with the others.
The thirty-seven year old appellant’s educational background consists of eight grades of formal schooling, a General Education Certificate, two years of vocational training, as well as considerable practical education from four previous criminal trials, in one of which he represented himself.
At a pretrial hearing, the appellant expressed a desire to represent himself, although he was offered appointed counsel, and counsel was in fact appointed to assist him at his request. At the pretrial hearing the following exchange occurred between the appellant and the trial court:
THE COURT: Mr. Deere, I understand through your attorney that you wish to represent yourself, is that true?
MR. DEERE: Yes, sir.
THE COURT: Do you feel like you’re competent to do that?
MR. DEERE: Yes, sir.
THE COURT: You have the absolute constitutional right to an attorney, and you have one, but also, you have the absolute constitutional right to represent yourself if you’re competent to do so. I know you’ve been through the criminal justice mill just about every way you probably can. You’ve probably been through several trials haven’t you?
MR. DEERE: Yes, sir.
THE COURT: How many trials would you say you’ve been through?
MR. DEERE: Four.
THE COURT: Did you have lawyers?
MR. DEERE: In all of them but one.
THE COURT: I know one of them you had here; you were acquitted. . . .
MR. DEERE: Yes, sir. I had two jury trials here and one in Texarkana. I represented myself in the Eighth Circuit Court in Pine Bluff.
THE COURT: How about your education, what kind of education do you have?
MR. DEERE: I got a GED, and I got two years of vo-tech.
THE COURT: Do you have any mental problems, learning disabilities, or anything like that?
MR. DEERE: No.
THE COURT: Do you feel comfortable representing yourself?
MR. DEERE: Yes, sir, I do.
THE COURT: Do you understand all the pitfalls? You probably don’t have any understanding of the twenty-eight exceptions of the hearsay rule and all sorts of things like that you wouldn’t know anything about.
MR. DEERE: All I can really ask for at this time is I got a couple of motions to file, but I would like to have a little bit of time to go over the evidence. . . .
THE COURT: Do you want Mr. Cooper to be standby counsel and help you?
MR. DEERE: Yes, sir, I do.
THE COURT: But you don’t want him to represent you, you just want him to be there, is that what you want?
MR. DEERE: Yes, sir, just as a guide.
(T. 52-55)
Thereafter, subsequent to a hearing on the motions, the following dialogue ensued:
THE COURT: Now, Mr. Deere, you’ve been through these motions, and you understand how difficult it is for you not having any legal knowledge, but you appear to me to be competent. I’m going to allow you to continue representing yourself if you feel that’s what you want to do.
MR. DEERE: Yes, sir, that is what I want to do.
THE COURT: There’s some advantages. You can bring things out that you probably couldn’t when you weren’t representing yourself through your opening statement and closing argument, but the downside is that you don’t know a whole lot about the rules of evidence.
MR. DEERE: Yes, sir. I just got a book yesterday on the rules of evidence.. . . I’m ready today if they want to go ahead today. I’m ready for them.
THE COURT: Well, I just want to make sure that you know what you’re doing when you represent yourself. I’m going to let you do it, because I think you’re competent to do so. Do you understand all the dangers of representing yourself?
MR. DEERE: I’ll go ahead and wait until Wednesday. I need to do a little reading and research, but I’ll be ready Wednesday.
THE COURT: I find you competent to represent yourself.
(T. 98-99)
After conviction and sentencing, the appellant expressed a desire to appeal, and his present attorney was appointed to prepare this appeal. Four points for reversal are stated but none have merit, and the conviction is affirmed on all counts.
Rule 11 (h) of the Rules of the Supreme Court, dealing with non-meritorious appeals, provides:
Any motion by counsel for a defendant in a criminal case for permission to withdraw made after notice of appeal has been given shall be addressed to this court, shall contain a statement of the reason for the request, and shall be served upon the defendant appealing. A request to withdraw on grounds that the appeal is wholly without merit shall be accompanied by a brief referring to anything in the record that might arguably support the appeal, together with a list of all objections made by the appellant and overruled by the court, and all motions and requests made by the appellant and denied by the court, accompanied by a statement as to the reason counsel considers that the points thus raised would not arguably support the appeal. The brief may be typewritten if counsel is representing an indigent person by appointment, as in other cases. The Clerk of this court shall furnish the appellant with a copy of his counsel’s brief, and advise the appellant that he has 30 days within which to raise any points that he chooses and that this may be done in typewritten or hand-printed form and accompanied by his affidavit that he has not received any assistance from any inmate of the Department of Correction or of any other place of incarceration in the preparation of this response. The Clerk shall see that such responses by an appellant are served on the Attorney General who shall proceed to file his brief on behalf of the state pursuant to sections [subsections] (f) and (g) of this rule within 30 days after such service and to serve a copy of his brief on the appellant as well as on appellant’s counsel. After a reply brief has been filed or after the time for filing such a brief has expired, the motion for withdrawal shall be submitted to the court as other motions are submitted. If, upon consideration of the motion, it shall appear to the court that the judgment of the trial court should be affirmed or reversed, the court may take such action on its own motion, without any supporting opinion.
The appellate counsel on the one hand admits there is no merit to this appeal and moves to withdraw as counsel, but at the same time he fails to comply with the requirements of Rule 11(h). Counsel has stated that he has written his brief “in the spirit of, (if not in actual compliance with), the concept of an Anders brief.” However, he has neglected to refer to anything in the record supportive of an appeal or to supply a list of the appellant’s objections and motions. Instead, he raises two issues not addressed at the trial court level. We are unable to consider them.
It is well-settled law that an accused may make a voluntary, knowing, and intelligent waiver of his constitutional right to the assistance of counsel in his defense. Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986). In order to effectively waive the right to counsel, the accused must be made aware of the dangers and disadvantages of self-representation, must know what he is doing and thus make his choice with “eyes open.” Faretta v. California, 422 U.S. 806 (1975). We are convinced that this thirty-seven year old accused was properly advised not only of his right to counsel, but also of the dangers inherent in self-representation. With such knowledge, the appellant made his own choice. Though counsel was appointed for him and remained present throughout the trial, the appellant elected neither to seek his assistance nor to employ him in the course of the proceedings.
The appellant and his present court-appointed appellate counsel cannot complain that the trial court should have directed the court-appointed trial counsel to be more aggressive in rendering assistance. The state may not force a defendant to accept counsel against his will or deny his request to conduct his own defense. Nichols v. State, 273 Ark. 466, 620 S.W.2d 942 (1981).
The judgment of the lower court is affirmed.
Price, J., not participating. | [
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Otis H. Turner, Justice.
This is an appeal from a decision of the circuit court of St. Francis County dismissing appellants’ challenge of a local option election in the town of Wheatley. Appellants raise five points for reversal, none of which we deem to have merit.
The local option alcohol issue was raised by a petition; a local minister, the Reverend Eugene Hoggatt, was instrumental in securing the necessary signatures. The matter was placed on the November 8, 1988, general election ballot in the town of Wheatley. The “drys” prevailed by a vote of 118 to 55.
Appellants first argue that the petition placing the issue on the ballot was not properly filed with the county clerk within a period “not less than sixty days prior to the election” as required by Ark. Code Ann. § 14-14-915(b) (1987), pursuant to Amend ment 7 of the Arkansas Constitution.
Though the clerk’s filing mark did not appear on the petition, the clerk’s testimony indicated that his office received the petition not less than 60 days prior to the election. The circuit court, as trier of the facts, made a determination that the filing was timely, and we will not disturb its finding on appeal. ARCP Rule 52(a).
The trial court’s ruling is not in conflict with our decision in Glover v. Russell, 260 Ark. 609, 542 S.W.2d 751 (1976), where a chancellor’s decision invalidating petitions filed 55 days before an election was upheld. In this regard, see also Phillips v. Rothrock, 194 Ark. 945, 110 S.W.2d 26 (1937). Further, we have held that though a filing mark is evidence of the filing of the document, the mark in and of itself is not an essential element of the act. Stanislaus v. Austin, 202 Ark. 441, 150 S.W.2d 610 (1941).
Appellants argue for their second point the fact that the county clerk apparently failed to publish a notice of the election as required by Ark. Code Ann. § 14-14-917(c)(1) (1987). That statute calls for notice to be given “through publication by a two-time insertion, at not less than a seven-day interval, in a newspaper of general circulation in the county, or as provided by law.” Further, the notice must state that the measure will be presented to voters at the next regular election “and shall include the full text, the ballot title, and the official numeric designation of the measure.”
In Phillips v. Rothrock, supra, this court noted the failure of the county clerk to publish “the notice required by law” and there stressed the mandatory character of the enabling acts governing initiative and referendum. However, in the recent case of Wurst v. Lowery, 286 Ark. 474, 695 S.W.2d 378 (1985), we emphasized that the public interest dictates that election results should become final without delay and stated:
[T]he failure to publish notice of an election is immaterial if the election is actually held and the electors have not been deprived of the opportunity to express themselves. ‘ [T] he voice of the people is not to be rejected for a defect or want of notice, if they have in truth been called upon and spoken.’ Wheat v.Smith, 50 Ark. 266, 7 S.W. 161 (1887). There is no indication that the voters in the three townships did not express themselves on the wet-dry issue in the 1980 general election.
286 Ark. at 475-476, 695 S.W.2d at 379.
Appellants’ reliance in this regard on Garrett v. Andrews, 294 Ark. 160, 741 S.W.2d 257 (1987), is misplaced. The majority in Garrett referred to Wurst, supra, in a totally different context and said nothing to challenge the language quoted above.
Point three argued by appellants concerns the defects in the preparation, circulation, and filing of the petition and the placement of the issue on the ballot. This argument is without merit and is controlled by our holding in Phillips v. Rothrock, where we stated:
[A] 11 provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after election, all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void.
194 Ark. at 952-53, 110 S.W.2d at 30.
None of the errors argued by appellants meet the exceptions of the above-quoted rule. As we observed in Jones v. Etheridge, 242 Ark. 907, 911, 416 S.W.2d 306, 309 (1967): “An election by the people should not be so lightly impugned by those who only hope to find enough information to change the result of an election.” It must be demonstrated that the outcome would have been different but for the irregularities and such a showing has not been made by appellants.
The fourth issue for reversal actually consists of a list of minor irregularities ranging from the voting by non-residents of Wheatley, to the service as an election official of the Rev. Hoggatt, who assumed the duty upon the absence of another appointed official, to the late opening of the polling place. The trial court noted that when the 13 alleged illegal votes were subtracted from the result, there remained a two to one margin in favor of the “drys.” With regard to the service of the Rev. Hoggatt, there was no showing that his presence at the polling place had any effect on any voter. Nor was there any showing that any voter was disfranchised by the late opening of the polling place.
We said long ago, in Patton v. Coates, 41 Ark. 111 (1883):
The wrong should appear to have been clear and flagrant; and in its nature, diffusive in its influences; calculated to effect more than can be traced; and sufficiently potent to render the results really uncertain. If it be such, it defeats a free election, and every honest voter and intimidated or deceived voter is aggrieved thereby. . . . If it be not so general and serious, the court cannot safely proceed beyond the exclusion of particular illegal votes, or the supply of particular legal votes rejected.
41 Ark. at 126.
This court has said that while we do not condone disregard of the state’s election laws, we are nevertheless reluctant to void an entire election on the basis of a slight deviation from the statutory requirements. “The failure to comply with the letter of the law by election officers, especially in matters over which the voter has no control, and in which no fraud is perpetrated, does not as a general rule render an election void, unless the statute expressly makes it so.” Allen v. Rankin, 269 Ark. 517, 521, 602 S.W.2d 673, 675 (1980) (quoting Goggin v. Ratchford, 217 Ark. 180, 229 S.W.2d 130 (1950)). None of the improprieties alleged by appellants appear to have affected the outcome of this election.
Lastly, appellants make a vague assertion that the Arkansas local option election laws amount to a denial of equal protection guaranteed by the Arkansas and U.S. Constitutions in that the private clubs and restaurant provisions of Ark. Code Ann. § 3-9-201 (1987) and Ark. Code Ann. § 3-8-205 (1987), dealing with the sale and consumption of alcoholic beverages, somehow discriminate in favor of tourists and visitors. No authority is cited for this proposition, and we find the contention to be without merit.
Affirmed.
Glaze, J., concurs. | [
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Robert H. Dudley, Justice.
James Pace, a convicted felon on parole with a history of drug abuse, told his parole officer that he was once again using cocaine. He further stated that appellant, Carl Hamm, was supplying him with the cocaine, and the only way he could break his habit was to get appellant off the streets. Pace agreed to make a controlled purchase of cocaine from appellant. His body was searched, his clothes were searched, he was equipped with a body microphone, and he was given $ 1,500 in cash. His car was searched for drugs and money. Followed by the police, he drove his car to appellant’s residence. Appellant and four (4) other people were in the house. Monitored electronically, Pace went into the house and purchased an ounce of cocaine for the $1,500. Pace was kept under observation until he returned to the police department where he handed the ounce of cocaine to the police. The appellant was charged with, and convicted of, delivery of cocaine and sentenced as an habitual offender to life imprisonment. We affirm the conviction.
Appellant first argues that the trial court erred in refusing to give the jury a written copy of the instructions. Our law is clear that, in a criminal case, upon request by counsel for any party, or by a juror, the trial judge must supply a written copy of the instructions to the jury. A.R.Cr.P. Rule 33.3 and Oliver v. State, 286 Ark. 198, 691 S.W.2d 842 (1985). Here, after oral instructions were completed, the appellant’s counsel asked the question, “Would you give the instructions to the jury?” and the trial court responded, “If they ask for them.” It is not clear that this question was a request that the written instructions be given to the jury, but even if it did constitute such a request, the trial judge did not clearly rule that he would not give the written instructions to the jury. If counsel’s question constituted a request that the written instructions be given to the jury, the judge’s response should have caused him to pursue the matter. There was no clear ruling that the instructions would not be given to the jury upon the defendant’s request. It is up to the movant to obtain a clear ruling in order to preserve an issue for appeal. Dildine v. Clark Equipment Co., 285 Ark. 325, 686 S.W.2d 791 (1985).
The appellant next argues that the trial court abused its discretion in denying appellant’s motion in limine to exclude the recording of the purchase of cocaine. As previously set out, Pace wore a body microphone into appellant’s residence, and the transaction was monitored and recorded. The recording is inaudible for periods, apparently when Pace’s clothing was rubbing against the body microphone, and it is not intelligible at other times because more than one person was talking, but it is understandable the remainder of the time. The conversation about the ounce of cocaine and counting out the $1,500 are understandable, as is a conversation about a pistol.
The general rule is that a recording such as the one at issue is admissible unless the inaudible portions are so substantial as to render the recording as a whole untrustworthy. Harvey v. State, 292 Ark. 267, 729 S.W.2d 406 (1987). Further, the introduction of recordings is a matter within the trial court’s discretion, and the trial court’s decision will not be reversed absent an abuse of that discretion. Harvey v. State, supra. Here, the main parts of the transaction can be understood, and the inaudible parts, or gaps, are not so substantial as to render the recording untrustworthy. The trial court did not abuse its discretion in admitting the recording.
Appellant additionally makes a number of arguments concerning evidentiary rulings. There is no merit in any of the arguments. In cross-examining Pace, the parolee who made the purchase, appellant asked several questions regarding whether Pace had previously falsely implicated someone in a crime. The questions went to Pace’s character for truthfulness or untruthfulness. Pace denied any false swearing. Appellant’s attorney then sought to introduce an opinion of this court which contains a reference to Pace falsely implicating someone else in another case. The trial court refused to admit the opinion into evidence. The ruling was correct. Impeachment related to character for truthfulness or untruthfulness is limited to cross-examination of the witness. A.R.E. Rule 608(b) makes it clear that no extrinsic evidence of prior misconduct is admissible.
The appellant also complains that the trial court refused to allow him to question Pace about an earlier jail escape for which Pace was not convicted. An escape is not probative of truthfulness or untruthfulness, and thus, the inquiry was not admissible under A.R.E. Rule 608(b). Since there was no conviction, it could not come in under A.R.E. Rule 609.
Appellant further argues that the trial court’s above-set-out rulings on his cross-examination of Pace violate appellant’s Sixth Amendment right of confrontation. The short answer to the argument is since the rulings concerning cross-examination of Pace were correct, the appellant was not prohibited from engaging in appropriate cross-examination.
The appellant next contends that the trial court erred in refusing to allow him to ask Pace’s parole officer on direct examination if he were aware that appellant had remained in jail since his arrest. Appellant contends the matter is relevant and argues that since Pace had admitted he purchased drugs during the period appellant was in jail, it meant that some other person sold those drugs to Pace. Pace had already testified that he knew others who were trafficking in drugs, and the fact that he obtained drugs from someone else subsequent to appellant’s arrest is not relevant.
Appellant’s final point of appeal involves a witness and the Fifth Amendment testimonial privilege. The witness had earlier told the prosecutor and appellant’s attorney that he had never sold drugs to Pace. Even so, the appellant wanted to put the witness on the stand and ask him if he had ever sold drugs to Pace. Both parties had been told that the witness would take the Fifth Amendment in response. Such an occurrence would imply to the jury the witness had in fact sold drugs to Pace. The trial judge ruled that he would not allow appellant to flagrantly build his defense out of the use of the testimonial privilege. See Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985). The appellant now argues the ruling violated his Sixth Amendment right of confrontation. Such an argument was not presented below, and we will not consider it for the first time on appeal. Dean v. State, 293 Ark. 75,732 S.W.2d 855 (1987). Further, neither the prosecution nor the defense is permitted to call a witness knowing that the witness will claim his testimonial privilege. See United States v. Crawford, 707 F.2d 447 (10th Cir. 1983); Kiefer v. State, 297 Ark. 464, 762 S.W.2d 800 (1989).
Pursuant to Rule 11 (f) of the Rules of the Supreme Court and the Court of Appeals, an examination has been made of all other rulings adverse to appellant, and none of them constitute prejudicial error.
Affirmed.
Hickman and Turner, JJ., concur. | [
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Jack Holt, Jr.,
Chief Justice. On May 6,1986, the vehicle driven by Earnest M. Jones struck the rear of the vehicle driven by Manuel Johnson. Johnson was stopped to make a left turn and had his left turn signal on. The weather was clear, the road was dry, and the collision occurred during daylight. Johnson suffered back and neck injuries for which he and his wife sued to recover damages. The trial court directed a verdict in favor of Johnson on the issue of Jones’ liability, and the jury awarded $50,000.00 to Johnson and $13,000.00 to his wife. Jones died of illness prior to trial, and the administratix of his estate appeals the judgment on three points of error. We reverse and remand to the trial court.
I. DIRECTED VERDICT
Jones contends that the trial court erred in directing a verdict in favor of Johnson as to Jones’ liability. We agree and rely on Spink v. Mourton, 235 Ark. 919, 362 S.W.2d 665 (1962), to reverse and remand to the trial court.
We have held that in determining on appeal the correctness of the trial court’s action in directing a verdict for either party, evidence is viewed most favorably to the party against whom the verdict is directed; where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury. Hardeman v. Hass Co., 246 Ark. 559, 439 S.W.2d 281 (1969) (citing Barrentine v. The Henry Wrape Co., 120 Ark. 206, 179 S.W. 328 (1915)). The term “any evidence” has long been recognized to mean “evidence legally sufficient to warrant a verdict,” Hardeman, supra (citing Catlett v. Railway Co., 57 Ark. 461, 21 S.W. 1061 (1893)), and to be legally sufficient it must be substantial; substantiality is a question of law. Hardeman, supra (citing St. Louis S.W. Ry. Co. v. Braswell, 198 Ark. 143, 127 S.W.2d 637 (1939)).
Our position on a directed verdict as to negligence has been in place for some time. We held in Spink, supra, that no matter how strong the evidence of a party who has the burden of establishing negligence and proximate cause as facts may comparatively seem to be, he is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially, for a jury to believe otherwise.
More recently, we affirmed this position in Barger v. Farrell, 289 Ark. 252, 711 S.W.2d 773 (1986), when we stated that where the allegations of the petition are denied by the answer, and the plaintiff offers oral evidence tending to support the allegations of the petition, the defendant is entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence. Barger, supra (citing Clark v. Abe, 328 Mo. 81, 40 S.W.2d 558 (1931)).
In this case, the burden was on Johnson, not on Jones, to prove the case stated in the petition. Johnson must show that he sustained an injury, that Jones was negligent, and that Jones’ negligence was the proximate cause of his injuries. Schaeffer v. McGhee, 286 Ark. 113, 689 S.W.2d 537 (1985) (citing AMI 203). Also, the fact that Jones’ vehicle struck Johnson’s vehicle does not create a presumption of negligence. Schaeffer, supra (citing St. Louis-San Francisco Ry. Co. v. Ward, 197 Ark. 520, 124 S.W.2d 975 (1939)).
Furthermore, a verdict upon issues of fact should not be directed in favor of the party having the burden of proof unless such fact is admitted, or is established by undisputed testimony of disinterested witnesses from which different minds cannot reasonably draw different conclusions. Spink, supra (citing Woodmen of the World Life Ins. Soc. v. Reese, 206 Ark. 530, 176 S.W.2d 708 (1944)). The jury is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence is uncontradicted and unimpeached. Barger, supra (citing Clark, supra).
Although Jones had died of illness prior to the trial of this case, he specifically denied, through his pleadings, Johnson’s allegations as to the circumstances surrounding the collision of their vehicles contained in Johnson’s complaint. At trial, Johnson and the investigating police officer testified; consequently, Jones was entitled to have the jury pass upon the credibility of this evidence. Applying the principles of Spink and Barger, we must reverse and remand.
II. VOIR DIRE ON INSURANCE
Jones next contends that the trial court erred in allowing Johnson to voir dire prospective jurors as to whether they believed jury verdicts affected their insurance premiums. It is well settled Arkansas law that if a party’s counsel acts in good faith, he may, in one form or another, question prospective jurors during the voir dire with respect to their interest in, or connection with, liability insurance companies. Dedmon v. Thalheimer, 226 Ark. 402, 290 S.W.2d 16 (1956).
In Dedmon, the trial court’s ruling to prohibit plaintiff’s counsel from questioning the jury panel with respect to insurance was reversed. The proposed question at issue was:
Have you ever been in the employ of any liability insurance company, or do you own any stock in any liability insurance company at the present time, or are you insured with any mutual benefit liability company where your premiums are determined upon the size of judgments given in personal injury actions for the previous year?
Id. at 403, 290 S.W.2d at 16.
Our rationale and standard for allowing this question was succinctly stated:
In cases where the defendant is covered by liability insurance, the plaintiff might want to excuse any one that he suspects may be either biased or prejudiced where insurance is involved; and he would have a perfect right to exercise a peremptory challenge for that reason, if he so desired. The test of whether counsel may ask questions of veniremen in regard to insurance is whether the questions are propounded in good faith. If counsel, in good faith, thinks that liability insurance is involved, then he may ask questions calculated to bring to light any bias or prejudice a venireman may have for or against insurance companies.
Id. at 403-04, 290 S.W.2d at 17.
In King v. Westlake, 264 Ark. 555, 572 S.W.2d 841 (1978), we considered as proper the following questions asked by plaintiffs counsel:
Q It is improper for either side to imply or suggest that the defendant does or does not have insurance, and the questions I will now direct to you have nothing to do with whether or not the defendant has insurance. The questions I will ask concern your insurance premiums, not insurance in this case. How many of you believe that jury verdicts affect insurance premiums?
Q Your insurance premiums may not be affected greatly one way or the other, but will not the verdicts that you render have some effect on your insurance rates?
Q The question I have been building up to is this: Assuming that the verdict you render could cost you a little more or a little less money on your insurance premium, can you listen to the testimony, the statements of counsel, and the instructions and then put aside the financial interest you have in this case because of your insurance premiums and render a verdict?
784 S.W.2d 165
Id. at 559-60, 572 S.W.2d at 844.
Prior to these questions, a foundation had been laid by showing that for some time preceding the trial date a number of liability insurance companies had run advertisements in nationally published periodicals with the purpose of informing jurors in general that they were affected by the verdicts they rendered in that such verdicts resulted in increased premiums.
In this case, Johnson’s counsel, without laying any foundation, read the questions in issue directly from King. This was wrong and contrary to our holding in King. Questions of this nature must be supported by a proper foundation.
III. POLICE OFFICER’S TESTIMONY
Jones also alleges that the trial court erred in allowing the investigating police officer, who was not an eyewitness to the accident, to testify that a contributing factor to the accident was that Jones was “following too close.”
Jones did not object to this statement at the time of trial, and we will not consider this point for the first time on appeal. Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988).
As a result, we reverse and remand to the trial court in accordance with this opinion.
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING FEBRUARY 20, 1990
Matthews, Sanders, Liles & Sayes, by: Marci Talbot Liles, for appellants.
Bobby McDaniel, for appellees.
Jack Holt, Jr.,
Chief Justice. The appellees (Johnsons) request a rehearing for two reasons: 1) that the standard for a directed verdict has been changed by this opinion, and 2) that this court erred in finding that the Johnsons conducted an improper voir dire by holding that King v. Westlake, 264 Ark. 555, 572 5. W.2d 841 (1978), required them to establish an evidentiary foundation before asking the questions in issue concerning insurance.
The Johnsons initially contend that our decision essentially abolishes directed verdicts in favor of a plaintiff in negligence cases by holding that so long as a defendant files an answer denying liability, a directed verdict is not appropriate even though no evidence is presented by the defendant.
In our majority opinion, we relied on Spink v. Mourton, 235 Ark. 919, 362 S.W.2d 665 (1962), and found that the trial court erred in directing a verdict in favor of the Johnsons as to Jones’s liability. The Johnsons point to the rule in Spink and proceed to suggest that we did not follow it. That test is as follows:
A verdict upon an issue of fact should not be directed in favor of the party who has the burden of proof with respect thereto, unless such fact is admitted, or is established by the undisputed testimony of one or more disinterested witnesses and different minds cannot reasonably draw different conclusions from such testimony.
(Emphasis added.)
To the contrary, we followed the dictates of Spink and its progeny. Granted, we did not embellish on the evidentiary aspects of the case, perhaps giving the appearance that we ignored the testimony and merely relied on the fact that Jones filed an answer that contained a denial of the circumstances surrounding the collision as pleaded in Johnson’s complaint.
Such is not the case. In our opinion, we did not mention that the officer, whom Johnson described as a disinterested witness, was not an eyewitness to the accident. Nor did we note that the officer’s claim that Jones had been “following too close” was in conflict with Johnson’s own testimony. Johnson testified that he had looked in his rearview mirror and had seen an eighteen-wheeler in the outside lane, but that he never saw Jones’s car. However, all of these facts were considered in passing judgment.
Additionally, the officer’s testimony, concerning Jones’s remarks about failing to get over far enough, was far from an admission of negligence by Jones. Unquestionably, by Johnson’s own testimony, an eighteen-wheeler was present at the scene immediately before the time of the accident and, had this matter been sent to the jury, the jury may well have surmised that the eighteen-wheeler may have contributed to the accident. In any event, the officer was not an eyewitness to the accident, nor did his testimony establish negligence on Jones’s behalf as a matter of law.
A motion for a directed verdict is a challenge to the sufficiency of the evidence and is proper only when no issue of fact exists. Boren v. State, 297 Ark. 220, 761 S.W.2d 885 (1988).
In this case, there is evidence of record upon which a rational jury could “reasonably” draw different conclusions from the testimony of the various witnesses and, for this reason, the matter should have been submitted to a jury.
The Johnsons also argue that this court erred in finding that their voir dire, concerning the effect of jury verdicts upon insurance premiums, was not proper since it was not supported by a proper foundation.
We resolved this point of error against the Johnsons and clearly stated that:
In this case, Johnson’s counsel, without laying any foundation, read the questions in issue directly from King. This was wrong and contrary to our holding in King. Questions of this nature must be supported by a proper foundation.
The Johnsons’ concerns are repetitive of their original argument on appeal, and we have held that such repetition is an inappropriate subject for a petition for rehearing. Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987).
The petition for rehearing is denied. | [
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Per Curiam.
We have this matter before us on appellant’s motion for belated appeal. On April 15, 1987, appellant pled guilty to three counts of rape and a controlled substance charge for which he received forty years, twenty years to be suspended upon his good behavior. Appellant filed a pro se Rule 37 petition which was denied on September 23, 1987. Appellant and his mother then hired counsel on September 24, 1987. For some reason, appellant did not appeal the denial of his Rule 37 petition. Instead, he filed a petition for writ of habeas corpus in the United States District Court, Eastern District. That court dismissed appellant’s petition without prejudice, and in doing so, recognized that the time for filing a motion for belated appeal had not expired. Appellant subsequently filed his belated appeal motion with this court on March 22,1989, which was one day within the eighteen-month period required for filing such motions under A.R.Cr.P. Rule 36.9.
A motion for belated appeal will be granted if the appellant can demonstrate good cause in not filing a timely notice of appeal. Conley v. State, 286 Ark. 388, 691 S.W.2d 868 (1985). In support of his motion, appellant cites our cases that reflect that, when a Rule 37 motion is denied, the court clerk is required to notify the appellant of the court’s action and if the clerk neglects to do so, the appellate court will grant a belated appeal. See Pennington v. State, 286 Ark. 503, 697 S.W.2d 85 (1985); Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984); see also A.R.Cr.P. Rule 37.3(d). When the record is silent on whether the clerk complied with the rule and the Attorney General in his response to a motion for belated appeal is unable to provide the clerk’s affidavit or some other proof that the order was mailed, it will be assumed that the petitioner was not notified of the denial of his motion. Porter v. State, 287 Ark. 359, 698 S.W.2d 801 (1985).
Here, appellant’s motion and attached affidavit alleged that he had never been notified of the court’s denial of his Rule 37 petition; however, someone, by pen, lined through those assertions denying receipt of notice, so we remanded this matter to the trial court for it to conduct a hearing to determine why the changes or alterations were made and whether notice had been given appellant by the clerk under Rule 37.3(d). Kelly v. State, 298 Ark. 465, 768 S.W.2d 533 (1989). On August 30,1989, the trial court conducted a hearing and the parties stipulated the appellant had been timely notified that his Rule 37 petition had been denied, and he had received notice on the approximate date he had hired his counsel.
In sum, appellant’s original allegations that he had never received notice of the court’s denial of his Rule 37 petition were shown to be untrue. As a consequence, he has failed to show good cause for his having failed to file a timely notice from the trial court’s order entered September 23, 1987.
Alternatively, appellant suggests that the counsel he hired on September 24,1987, should have pursued the appeal and that counsel’s having failed to do so was' ineffective assistance of counsel which should entitle appellant to a belated appeal.
We find no merit to the contention in that the right to effective assistance of counsel under the Sixth Amendment does not extend to collateral attacks on a judgment. See Pennsylvania v. Finley, 481 U.S. 551 (1987); Ross v. Moffitt, 417 U.S. 600 (1974). | [
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Tom Glaze, Justice.
Appellant appeals from the trial court’s denial of his Rule 37 motion to dismiss his rape and kidnapping convictions. He argues that (1) his trial counsel was ineffective for having failed to raise appellant’s right to a speedy trial, (2) the trial court erred in substantially complying with A.R.Cr.P. Rule 24 when accepting his guilty pleas, and (3) the judgment and sentence for both rape and kidnapping violate appellant’s right to be free from double jeopardy. We consider each argument in the order as set out above.
Concerning appellant’s first point, appellant states that he was charged with rape and kidnapping on October 22, 1987 and that, under A.R.Cr.P. Rules 28.1(c) and 28.2(a), he should have been tried no later than October 22, 1988, i.e., twelve months from the time appellant was charged. Although the lower court originally set appellant’s trial for October 6,1988, that trial was continued. In fact, the record reflects a second trial date was set for February 2, 1989. The appellant, however, actually pled guilty to the crime on January 27,1989 — or three months past the date when his case should have been tried.
The state responds that under Rule 28.3 there should be days excluded when computing the time for trial bringing the state within the speedy trial requirements. Over appellant’s objection, the state at the Rule 37 hearing offered evidence that the state attempted to locate appellant after he was charged on October 22, 1987. Appellant’s whereabouts were unknown — even to his attorney — until February 2 or 3,1988, when he was arrested. The state also presented evidence that appellant had orally moved for a continuance in order to obtain scientific tests from a New York laboratory. In sum, the state contended that these two periods were excludable under A.R.Cr.P. Rule 28.3(c) and (e).
The appellant counters the state’s argument by citing Rule 28.3(i), which requires that all excluded periods must be set forth by the court in a written order or docket entry. See Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989); Shaw v. State, 18 Ark. App. 243, 712 S.W.2d 338 (1986). Appellant points out that in the present case the trial court altogether failed to enter any orders or docket entries authorizing the periods claimed by the state. For this reason, appellant claims his attorney should have moved to dismiss his charges when the original speedy trial date expired on October 22, 1988, and that his counsel further was wrong in allowing appellant to plead guilty to the charges three months later. We find no merit to appellant’s contentions.
This appeal is from a Rule 37 proceeding and does not involve a direct appeal regarding the Speedy Trial Rule. Instead, appellant’s contention is that his counsel was ineffective because he failed to file a motion to dismiss. Thus our focus is limited to whether the performance of appellant’s counsel was deficient in that he made an error so serious that he was not functioning as the “counsel” by the sixth amendment to the Constitution, and the deficient performance must have resulted in prejudice so pronounced as to have deprived the appellant of a fair trial whose outcome cannot be relied on as just. Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988). Appellant’s guilty plea was the trial in this case. Cox, 299 Ark. 312, 772 S.W.2d 336.
The law is settled that there is a presumption that counsel is competent, and the burden is on the appellant who must show more than mere errors, omissions, mistakes, improvident strategy or bad tactics. Whisenhunt v. State, 292 Ark. 33, 727 S.W.2d 847 (1987). To prove ineffective assistance of counsel, appellant must establish that his counsel’s advice was not within the range of competence demanded of attorneys in criminal cases, and he must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id.
In the present case, appellant’s counsel testified that he did not move to dismiss the charges against appellant because it was counsel who had orally moved to continue the original trial set on October 6, 1988, so that he could obtain a DNA matching test from a New York laboratory. Counsel had suggested to appellant that such a test could either exonerate or serve to convict him and that appellant encouraged counsel to get the tests. The tests were not received until January 1989.
Counsel testified that if he had raised the speedy trial issue in January 1989, he would have been committing fraud on the court because he knew, and the judge knew, counsel had requested a continuance. Counsel’s action in obtaining a continuance (at appellant’s urgence) was in hopes of exonerating appellant, and his later and additional efforts were directed at obtaining a sentence less than life — the term he could have received for rape. Appellant was sentenced to twenty years for rape and twenty years for kidnapping, to be served consecutively.
We believe counsel’s decision not to raise the speedy trial issue, under these circumstances, was a correct one. We also agree with the state’s assessment that to allow such a challenge by the appellant would violate the spirit of the rule that one cannot agree with a ruling by the trial court and then attack that ruling on appeal. Gilbert v. State, 277 Ark. 61, 639 S.W.2d 346 (1982). Therefore, we reject appellant’s claim that his counsel was ineffective.
In appellant’s second point, he argues several reasons why the trial court erred in conducting the guilty plea hearing in substantial compliance with the requirement listed in A.R.Cr.P. Rule 24; all but one have no merit. Although appellant argues he was not advised of the minimum and possible maximum sentences to the charges against him, the record reflects otherwise. He was present when his counsel, the prosecutor and the trial judge discussed sentencing. He was apprised of the possible life term he could have received for rape and the minimum sentence of twenty years for the crimes was also discussed. Appellant claims he was not advised of his right to confront witnesses, but again the record shows that the trial court fully apprised him that he was entitled to a trial, to be represented by an attorney, to present evidence, to compel attendance of witnesses and to offer any valid defense. Appellant further complains that after he decided to plead guilty, he was forced to appear on January 27,1989 — before the scheduled trial date of February 2, 1989 — to enter his plea. Appellant states he had not violated his release agreement and should have been permitted to enter his plea on February 2. Of course, appellant concedes he had already intended to plead guilty before the state submitted that the appellant should appear on the January 27 date. At the plea hearing, the judge very clearly asked appellant if he was freely and voluntarily entering his pleas, to which appellant stated he was.
Finally, appellant contends that no factual basis under A.R.Cr.P. Rule 24.6 was established for his guilty pleas. Concerning the rape charge, appellant, in responding to the judge’s inquiries, admitted that he had raped the victim and had used physical force when doing so. He stated the victim resisted when appellant compelled him to have sex. Clearly, a factual basis was established to support the rape conviction.
Regarding the kidnapping crime, we note that, in circumstances like those before us here, a person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of inflicting physical injury upon him or of engaging in sexual intercourse, deviate sexual activity, or sexual contact with him. See Ark. Code Ann. § 5-11-102(a) (4) (1987); Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988). It is only when the restraint exceeds that normally incidental to the crime that the rapist should also be subject to prosecution for kidnapping. Id.
When discussing the kidnapping charge with the appellant at the plea hearing, the trial court stated the following:
THE COURT: And you’re also charged with the offense of kidnapping and while I do not have the precise allegations in front of me, that would generally mean if you took him against his will and restrained him unlawfully and did you do that in some way?
DEFENDANT: Yes, sir.
THE COURT: And did he object to that in any way?
DEFENDANT: Yes, sir.
THE COURT: And did he resist you in taking him against his will?
DEFENDANT: Yes, sir.
The trial judge apparently was not knowledgeable of the facts concerning the kidnapping charge and failed to ask the appellant, appellant’s counsel or the prosecutor to recite the factual basis for the charge. Nonetheless, based upon the scant recital above, the judge declared a factual basis existed even though no facts were related that reflected that the restraint employed by appellant was no more than that which was required to commit the rape. As a consequence, we must reverse this part of the trial court’s ruling and permit appellant to withdraw his plea as to the kidnapping charge.
Appellant’s last argument is that being convicted of rape and kidnapping violates his right to be free from double jeopardy. He offers no citation of authority. Our decisions reflect that kidnapping is not necessarily a lesser included offense of rape. See Jones v. State, 290 Ark. 113, 717 S.W.2d 200 (1986). As we have demonstrated by case law, rape and kidnapping are separate crimes. Summerlin, 296 Ark. 347, 756 S.W.2d 908; Beed v. State, 271 Ark. 256,609 S.W.2d 898 (1980). We simply find no merit in appellant’s double jeopardy claim.
For the reasons above, we affirm the trial court, but reverse that part of its decision denying the appellant’s withdrawal of his plea to the kidnapping charge.
Hickman, J., would affirm.
A person commits rape if, by forceable compulsion, he engages in sexual intercourse or deviate sexual activity with another person. Ark. Code Ann. § 5-14-103(a)(1) (1987).
Counsel, who represented appellant at the plea hearing, testified at the Rule 37 hearing that a gun was involved in some manner, but it is not clear when this fact was discussed. | [
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McHaney, J.
Appellee is engaged in the life insurance business on the pro rata assessment basis. It had no circles, but had two divisions, one composed of white people and the other of colored. When a death occurred in either division, an assessment was levied against the members of that division up' to one thousand to pay the face of the policy. When another death occurred, it assessed the next one thousand, and so on through the membership of that division. Appellant, Cornelia Young, is the widow of Isaac Young, who carried a policy with appellee in the colored division, by which appellee agreed to pay appellant, as beneficiary, within thirty days after the receipt of satisfactory proof of death of the insured, the sum of $1,000, subject to the rules and regulations of appellee, which were set out in the pulicy, which contains the following provision:
“This company is founded and policy issued upon the assessment plan. The object is to give the members-insurance at the lowest possible cost. It will be the object to hold all members in one class to always insure a full payment of death claims. Upon notice of a death, starting at the head of the list, a sufficient number of members will be called to pay the claim; the next death, another section will be called in like, manner, until the round is made, and no member shall be called twice until all members shall have been called. In case a member should die before the total membership in good standing shall have reached one thousand, or should one member ship he reduced to a number below one thousand, then in that event it is understood that a membership is only-due said member one dollar for each of said members in good standing* at the time of his death.”
At the time of the insured’s death there were only thirty-nine members in good' standing in the colored division, and on receipt of the proof of loss appellee tendered to appellant $39 in full settlement of all claims against it, which was refused. -She thereafter instituted this suit, by which she sought to compel appellee to consolidate the two divisions, whites and colored, and to recover against appellee for $1 per member for both divisions. On a trial of the case the chancellor found that appellant was entitled to recover only $39, * and that, appellee having tendered appellant this sum of money in open court, she was entitled to recover her costs up until the date of such tender, and was liable for the costs thereafter, and entered its decree accordingly, from which is this appeal.
We think the judgment of the trial court is correct and must be sustained. Appellant had always done business on the same plan it is now doing business. It had always kept the records of the two divisions, whites and blacks, separate and distinct. No person in the white division was ever called upon to pay a death claim occurring in the colored division, and neither was a person-in the colored division called upon to pay for a death in the white division. The insured fully- understood this plan, of operation, and the by-law adopted on August 31, 19-25, did not change the policy of the company in this regard. The insured was advised of this plan in the letter of McDowell on September 16, 1925, and continued thereafter to be a member until his death on the 21st day of February, 1926, without ever questioning the policy of the company in this regard.
The principal contention of appellant seems to^ be that, under provisions of act 139 of 1925, sub-section D of § 2, appellant was required to assess all the members, both white and black, up to the face value of the policy to pay for a loss. The last sentence in this sub-section is: “Such association shall combine all groups or circles which are in existence at this time and are not up to the maximum, and all groups or circles shall be kept up to the maximum.” The answer to this contention is that appellee did not have any groups or circles to combine, but had two divisions, according to color, and we do not think the Legislature had in mind any such contemplation as is contended by appellant. The classifications according to color are not unreasonable, and the act in question has no. application to such classification as appellee made.
It is further contended by appellant that, under the terms of the policy, appellee is liable for $784 on account of the language of the policy heretofore quoted. But not so, as that language refers to all the members in a division, and not to the membership as a whole.
It follows that the judgment of the chancery court is correct, and it is therefore affirmed. | [
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Kirby,' J.
The only question for determination is whether the court erred in taking the case from the jury and directing the verdict for appellee.
■ The settled rule for its determination is:
“ In determining on appeal the correctness of the trial court’s action in directing a verdict, the rule is to take that view of the evidence that is most favorable to the party against whom the verdict is directed, and, where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury.” Cruce v. Mo. Pac. Rd. Co., 167 Ark. 88, 266 S. W. 981; Crawford v. Sawyer & Austin Lbr. Co., 91 Ark. 337, 121 S. W. 286; Williams v. St. L. & S. F. R. R. Co., 103 Ark. 401, 147 S. W. 93; Farmers’ Bank v. Johnson, 105 Ark. 136, 150 S. W. 401; Jones v. Lewis, 89 Ark. 368, 117 S. W. 561.
The evidence does not certainly show that appellant’s injury was caused by a piece of steel broken from the hoe which he was using in cutting weeds, upon striking a rock, although the statement that it was withdrawn from his eye by a magnet indicates that it was a piece of metal. No witness examined the hoe after the injury occurred, unless it was one of two hoes inspected by appellee’s foreman, picked up out at the road, in the orchard near where appellant and the Stewart boy were working, and where appellant said he had laid his hoe down. Neither of these hoes was defective or gapped, however.
It is also true that the cane or grubbing hoe was a simple tool, not complex of construction nor difficult of operation, and that appellant was a farmer accustomed for years to the use of such tools. The court has held that, in the selection and use of simple tools, whose defects are patent and obvious and as discoverable to the servant as to the master, the servant assumes the risk of the ordinary use thereof. Fordyce Lbr. Co. v. Lynn, 108 Ark. 377, 158 S. W. 501, 47 L. R. A. (N. S.) 270; Arnold v. Doniphan Lbr. Co., 130 Ark. 486, 198 S. W. 117.
The burden of proof was upon the injured servant to show negligence on the part of the master in the failure to perform some duty owed to him, as such servant, which proximately caused or resulted in his injury. Here the servant, according to his own statement, made selection of the tool or implement which he was to use, a grubbing hoe, for cutting weeds in rocky soil, with the ordinary use of which the servant had been familiar always, and there is no testimony tending to show that the tool selected was defective, nor certainly that the injury resulted from a piece of steel slivering and breaking off from the edge of the hoe, upon its being struck against a rock, in its ordinary use. No witnesses stated that the hoe was gapped or the blade slivered, and the foreman testified that neither of the two hoes left in the road, near where appellant passed and left his hoe, was gapped or showed that a sliver had broken off from the edge of the blade.
It may be that neither of these hoes examined by him was the one which appellant was using when he was injured. The master, in any event, is not an insurer of his servant’s safety, and was only bound to the use of ordinary care proportionate to the danger to he incurred in furnishing proper tools to the servant for the performance of his duty, and his negligence is charged to consist in furnishing a defective hoe, too highly tempered in the sharpening, with which to do the work. Although the simple tool doctrine has never been established in this jurisdiction, there was said about it, in Arnold v. Doniphan Lbr. Co., supra: “The master does not owe the servant the duty of inspecting tools given to the latter with which to work, where the tool furnished is one which requires no special skill or training for its safe use, and when the defect in the tool, if any, is as obvious to the servant as it is to the master, or when the defect arises from the use of the tool, and the servant would naturally be the first person to discover the existence of the defect.”
The undisputed testimony shows that the appellee furnished only skilled and experienced blacksmiths for the sharpening of these hoes, that were dulled twice a day in their ordinary use in the rocky ground of the orchard. Some of the smiths have been at work for as much as 30 years, and all of them are skilled in sharpening and tempering such tools. That the one having the least experience in such work, Bay, a blacksmith for 7 years, the helper of Huddleston, the blacksmith in charge of the shop at division 1, who had been working for appellee for 13 years, knew how to sharpen and temper hoes properly. That he always made an honest effort to see that the hoes were properly tempered, and that, if he discovered one too highly tempered, he retempered it. Neither does the testimony show that Bay had .sharpened the hoe that was being used by the appellant at the time the injury occurred, nor was there any testimony tending to show that any of the hoes sharpened in the blacksmith shop of division 1, nor any of the other shops, had ever before been complained of as having been improperly sharpened and made defective from being too highly tempered.
Assuming that the injury occurred as stated by appellant, the testimony is not legally sufficient to show negligence on the part of appellee in the failure to exercise ordinary care to furnish reasonably safe tools to its employee for the performance of his duty, and, it being necessary for him to show such negligence in order to recover, the court did not err in directing the verdict against him.
The judgment is accordingly affirmed. | [
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Smith, J.
This appeal is from a judgment for the sum of $2,000 to compensate a personal injury alleged to have been sustained by appellee in the pursuit of his employment by appellant. No complaint is made that the verdict is excessive. The reversal of the judgment is prayed upon two grounds, (1) that appellee was not appellant’s servant at the time of his injury, and (2) no negligence was shown upon which liability could be predicated.
L. E. King was employed by appellant under the following contract:
“Hope, Arkansas.
“March 20, 1939'.
“To Standard Oil Co. of La.
“Mr. J. T. Rhodes, Div. Mgr.
“Little Rock, Arkansas. •
‘ ‘ Maintenance of Equipment
‘ ‘ Gentlemen:
“I hereby propose, and, if this proposition is accepted, agree to repair upon receiving specific request from you, your company-owned retail dispensing equipment wherever installed, under the following terms and conditions:
“A. Time actually spent repairing equipment will be charged at 70c per hour. Materials furnished by me will be charged at net cost less discount or allowance. Any materials furnished by you will be properly accounted for and material not accounted for will be paid for. Tools and equipment required for performing the work will be furnished by me.
“B. No charge will he made for time and cost of transportation within a distance of five miles of Hope, Ark. For jobs beyond that area time and cost of transportation will be charged at five (5) cents per mile for total mileage traveled outside such area.
‘ ‘ C. All work will be done in workmanlike manner so as to put the equipment in good operating condition. If, after inspection, I find that any authorized repair of hand operated gasoline equipment will cost over $5, or of kerosene or lubricating oil equipment will cost over $1, I will secure further authorization before performing the work.
“D. Bills for work performed shall be payable within fifteen days after they are rendered.
“E. I hereby agree to indemnify and hold you harmless from any and all loss and damage and from all claims for injury, death, loss and damage of any kind or character, to person or property, and by whomsoever suffered or asserted, occasioned by or in connection with any work performed by me, or any act or default on the part of myself or my agents or employees in connection therewith, either while the work is in progress or as a result of the work done.
‘ ‘F. In performing work hereunder I will act solely as an independent contractor and not as your agent or employee. I will be solely responsible for any persons used or employed by me in connection with such work. I will be responsible for workmen’s compensation and for contributions and taxes under state and federal unemployment compensation and social security laws arising in connection with the work and will hold you harmless from any such liability.
“Gr. Either party hereto may terminate this agreement upon ten days ’ written notice to the other party.
“(Signed) L. E. King.
“Accepted:
“(Signed) E. P. Lyons,
‘ ‘ Assistant Manager. ’ ’
This contract was evidently prepared for the purpose of creating the relation of owner and independent contractor between appellant and King, and, read by itself, without reference to the manner in which it was to be performed, did create that relationship; but the testimony as to the manner in which it was to be performed suffices to make a question for the jury whether that relationship did, in’ fact, exist.
Appellee was injured while assisting King in' the installation of a gasoline pump, and this was the character of work which King was employed to perform. It will be observed that the contract is silent as to the employment and pay of laborers whose service would be required by King in the performance of his own labor, yet it is an undisputed fact that it was contemplated by the parties that King should have assistance in the installation of the pump in question, just as he had been furnished assistance in the installation of other pumps.
Appellee had rendered this assistance on other similar occasions. He was hired by King, that is, King had the right to choose his assistants. At stated intervals King made a report to appellant of the labor he had hired, showing the number of hours and the wage per hour. The laborers signed this report, and it became a voucher. King prepared one voucher showing the labor performed by himself, and another by his assistant, and upon the receipt of the vouchers by. appellant a check would be mailed to King covering his own labor and that of his assistant, and with the proceeds of this check King-paid himself and his assistant. So that the undisputed testimony is that, although King paid appellee his wages, the payment was made with money furnished by appellant for that purpose. This fact, together with certain others, including the fact that appellant paid King’s social security tax, made a question for the jury whether appellee was appellant’s servant at the time of his injury, or was the servant of King as an independent contractor. Among-these other facts was the testimony of appellee to the effect that, while appellee was engaged in the installation of the pump in question and other pumps on other previous occasions, representatives of appellant, who were present while appellee was performing the duties of Ms employment, made suggestions and gave directions to appellee in tlie performance of those duties. One of these circumstances was that during a similar installation appellee was directed by a representative of appellant to cease painting when rain began to fall. The painting was ail under-cover job, and appellee was told to quit work until the following day.
King had been employed by appellant for 23 or 24 years, the first 18 of which was under a fixed salary. In 1939, King began working by the hour, but he performed the same labor under both contracts. Appellant had first call on King for his services, and it was only when appellant had no work to do that King worked for someone else. Appellee testified that while working on a similar job while King was away for several days, and during King’s absence, representatives of appellant gave him his orders and supervised his work, and that on other occasions he took orders both from King and any representative of appellant who chanced to be present.
The law of this subject has been so frequently and recently stated that it would be a work of supererogation to discuss and restate it. The law of the subject as announced, after an extensive review of our own and cases from other jurisdictions, is summarized in the case of Moore and Chicago Mill & Lumber Co. v. Phillips, 197 Ark. 131, 120 S. W. 2d 722, as follows: “The governing distinction is that if control of the work reserved by the employer is control not only of the result, but also of the means and manner of the performance, then the relation of master and servant necessarily follows. On the other hand, if control of the means be lacking, and the owner does not undertake to direct the manner in which the employee shall work in the discharge of his duties, then the relation of independent contractor exists. (Citing a number of Arkansas cases.) ”
In passing upon the sufficiency of the testimony to present this issue to the jury, we cannot be unmindful of the fact that appellant paid appellee his wages.
At § 16 of the chapter on Independent Contractors, 27 Am. Jur., p. 497, it is said: “In the determination of whether the contractor is independent, it is of importance to consider by whom the wages of a contractor’s servants are paid, since the circumstances that wages of workmen hired by a contractor are paid by the principal employer tends, in some degree, to show that the contractor is a mere servant. But such circumstance is not decisive of a master-servant relationship, since the prima facie significance it possesses is rebuttable by proof that the wages are paid by the principal employer merely because the contractor is without necessary funds, or because the principal employer desires to protect his property against liens. Payment by the principal employer becomes an entirely negligible factor where the evidence shows that payment is made with money furnished by the person employed. Analogously, although the fact that wages of workmen employed by a contractor are paid by him tends to prove that the contractor is independent, it does not possess a conclusive significance in this regard.”
There is an exhaustive annotation of this subject in the notes to the case of Chicago, R. I. & P. Ry. Co. v. Bennett, 36 Okla. 358, 128 Pac. 705, 20 A. L. R. 772.
In our own Moore case, supra, Moore, who was held to be an independent contractor, first paid his labor with his own funds. Later the wages were paid “on payrolls made out by Moore and at his direction, and receipts taken from each employee were introduced in evidence showing performance of labor on ‘Arthur Moore’s job.’ ”
Here, appellee’s wages paid, as herein stated, by appellant, were not, at any time, charged to King, the alleged independent contractor, although wages were paid on vouchers prepared by King.
We conclude, therefore, that the issue whether King was an independent contractor was properly submitted to the jury; and this was done under instructions of which no complaint is made.
The remaining question is equally close and of equal difficulty; that is, whether appellant was guilty of any actionable negligence. The testimony upon this issue is to the following effect: The pump which appellee and King were engaged in installing, when appellee was in jurecl, weighed 526 pounds, and it was necessary for them to lift it over a nipple in order to install it. They lifted the pump over this nipple, and lacked about 6 inches of having it at the concrete block on which it was to be placed, when King, without warning or apparent cause, turned loose of the pump and let the weight of the pump fall down upon appellee while he was in a stooped position, thereby inflicting the injury which appellee sustained. Now, King denied this, but this conflict in the testimony was, of course, a question for the jury. Appellee did not know why King released his hold; he only knew that he had done so. King furnished no excuse for this action on his part; indeed, he denies that it' happened.
Appellant cites a number of cases more or less similar, and, among others, the following: Missouri Pacific Ry. Co. v. Medlock, 183 Ark. 955, 39 S. W. 2d 518; St. Louis-S. F. Ry. Co. v. Burns, 186 Ark. 921, 56 S. W. 2d 1027; St. Louis-S. F. Ry. Co. v. Bryan, 195 Ark. 350, 112 S. W. 2d 641; Missouri Pacific R. R. Co. v. Vinson, 196 Ark. 500, 118 S. W. 2d 672; St. Louis-S. F. Ry. Co. v. Ward, 197 Ark. 520, 124 S. W. 2d 975; St. Louis-S. F. Ry. Co. v. Childers, 197 Ark. 527, 124 S. W. 2d 964.
Of these, the first and the last cases cited appear to be chiefly relied upon. In the first of these, it was held that evidence that a fellow-servant accidentally slipped, causing him to release his hold on the end of the handcar which he and the plaintiff were lifting, thereby causing injury, was held not to sustain a cause of action. That holding was quoted and affirmed in the last case, above cited, under similar facts, and it was said there could be no recovery unless it were shown that the servant who released his hold of the object being carried was guilty of some negligence in doing so.
Here, appellee testified as follows: ££Q,. Tell the jury what the custom was before that. A. We always had to ease them down, because we set them with a union. There is half a union on the bottom and if you drop them, you would skin them up to where they would leak. Q. You mean before you eased them down? Mr. Chowning: Let him tell about it. A. I said we eased them down. Q. But this time he turned loose before you got it down? A. He sure did. ’ ’
We think this testimony unexplained made a case for the jury upon the question whether King was negligent in prematurely releasing his hold upon the pump, and that the holding in the case of Public Utilities Corporation v. Carden, 182 Ark. 858, 32 S. W. 2d 1058, is applicable here. It was there held that a case had been made for the jury where it was shown, without explanation, that one of two servants engaged in lifting a heavy rock had released his hold without warning. See, also, St. L. Sw. Ry. Co. v. Smith, 102 Ark. 562, 145 S. W. 218; Great Western Land Co. v. Baker, 164 Ark. 587, 262 S. W. 650; Texas Pipe Line Co. v. Johnson, 169 Ark. 235, 275 S. W. 329; Newark Gravel Co. v. Barber, 179 Ark. 799, 18 S. W. 2d 331; M. P. Rd. Co. v. Simmons, 190 Ark. 876, 81 S. W. 2d 924; C. W. Lewis Lbr. Co. v. Rogers, 199 Ark. 678, 135 S. W. 2d 674.
We conclude, therefore, that the testimony is sufficient to support the verdict, and as no error appears in the trial the judgment must be affirmed, and it is so ordered. | [
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Holt, J.
March 29,1940, appellees, Pay Ward, Way-man Ward, her husband, and Melba Bryant, sued appellants for damages growing out of a collision between a panel-bodied truck owned and operated by Arkansas Amusement Corporation and a. parked sedan automobile in which appellees were sitting at the time. A jury awarded Pay Ward $34,500 for personal injuries, $5,000 to her husband, Wayman Ward, for expenses following his wife’s injuries and damages to his automobile, and $1,000 to Melba Bryant for personal injuries. Prom judgments on these verdicts comes this appeal.
Por reversal appellants urge (1) that the proceedings in the trial court were void; (2) that error was committed in the introduction of certain X-ray pictures; (3) that they were entitled to a reversal on the ground of newly discovered evidence; (4) that the trial court erred in refusing a continuance and in refusing to require witness’, Mrs. Strickland’s, personal attendance at the trial; and (5) that the verdicts are excessive. We proceed to consider these assignments in the order in which they are presented. It is conceded that a case of liability was made for the jury as to each of the appellees.
I
Appellants ’ first argument for a reversal is that the proceedings in the lower court were coram non judice and that, therefore, the judgments against them are null and void. This argument is discussed under three separate headings, (a) that the March, 1941, term of the third division of the Pulaski circuit court lapsed on May 21; (b) that Judge Auten, judge of the second division of said court, had no authority to preside at the trial of this cause in the third division thereof; and (c) that the March, 1941, term of the third division of said court lapsed on May 12. These questions were not raised in the court below and are not mentioned in the motion for a new trial, but we assume that they may be raised here for the first time.
Arguments under headings (a) and (c) relate to an exchange agreement between Judge Waggoner of the Lonoke circuit court and Judge Utley of the third division of the Pulaski circuit court, in which it was agreed that Judge Waggoner should preside over Judge Utley’s court for six days named in the agreement, to-wit: May 12, 13, 14, 15, 19 and 20, 1941. It appears that Judge Wag-goner did not appear and open the third division court on May 12, but that same was opened by Judge Auten of the second division who adjourned the court to May 13, when Judge Waggoner did appear, opened court and held court on the other days named in the agreement, and continued to hold said court on May 21, 22 and 26. Now, the contention is that, because Judge Waggoner did not appear on May 12, the first day of his exchange agreement, the term lapsed for the reason no other judge of the Pulaski circuit court could open said division or adjourn same. Also that because Judge Waggoner held said court on days after May 20, days not covered by his exchange agreement, the proceedings on said extra days are void and the term lapsed. Whether appellants are right or wrong in these contentions is not now decided, because they have not shown any interest in the court proceedings on these days. Their cases were not tried by Judge Waggoner on any of the days named or at all. They were tried before Judge Auten of the second division of said court, and, unless the latter had no power or authority to try these cases, appellants certainly would have no right to question or upset the proceedings had before Judge Waggoner while presiding over the third division of said court.
The record shows that these cases were docketed in the third division and that they were tried before Judge Auten of the second division with the third division jury, and, while the record does not show it, the cases were tried in the second division courtroom. So, it appears to us that the effect of what happened was that the cases were transferred by agreement to the second division for trial, and were there tried and the record thereof made in the third division-records. This action did not render the judgments void, for, by § 8 of Act 64 of the Acts of 1913 which provides for an additional circuit judge of the 6th circuit and regulates the practice in the Pulaski circuit court, it is provided that: “It shall not be reversible error that any case is tried in a division to which it has not been specially assigned.” These cases, having been tried before Judge Auten of the second division, cannot, therefore, be reversed because they were tried in a division to which they had not been specially assigned, regardless of whether the third division may or may not have been in session.
II
Appellants contend that the trial court erred in permitting, over their objection, the introduction of certain X-ray pictures of Pay Ward made at the Baptist Hospital and exhibited and interpreted by Dr. Hayes.
It appears that Dr. Hayes, in the course of his testimony on behalf of appellees, was permitted to place the X-ray pictures in question in a shadow box and testify and interpret from them. While he did not make the pictures himself, he identified them as having been made in his presence and under his direct supervision. In these circumstances, we think no error was committed in their introduction.
In Prescott & Northwestern Railroad Co. v. Franks, 111 Ark. 83, 163 S. W. 180, this court held (quoting headnote No. 3 from the Arkansas Reports) : “An X-ray photograph, showing an injury to plaintiff, is admissible in evidence, when a practicing physician testifies that he was present when the same was taken, and identifies the photograph introduced in evidence as the one taken of plaintiff.”
III
Appellants next argue that they are entitled to a reversal on the ground of newly discovered evidence. The alleged newly discovered evidence consisted of affidavits, and testimony at the hearing on the motion, having for their purpose the impeachment of appellees’ witnesses, Courtney and Montgomery. The affidavits tended to show that neither of these witnesses was near the scene of the accident when it occurred and that they had sworn falsely.
From one of our earliest cases, that of Robins v. Fowler, 2 Ark. 133, the rule has been well established that in order to the success of a motion for a new trial, on the ground of newly discovered evidence: “1. The testimony must have been discovered since the trial. 2. It must appear that the new testimony could not have been obtained with reasonable diligence on the former trial. 3. It must be material to the issue. 4. It must go to the merits of the case, and not impeach the character of a former witness. 5. It must not be cumulative.”
After a careful review of the record on this point, we are convinced that no error was committed in denying the motion, for the reason that the alleged newly discovered evidence was in the nature of impeachment testimony only. The granting or refusing such motion is left to the sound, discretion of the trial court, and unless it appears that this discretion has been abused, we will not reverse here.
In Bradley Limber Co. v. Beasley, 160 Ark. 622, 255 S. W. 18, where the affidavits tended to show that certain witnesses, who testified that they were present when a certain happening occurred, were in fact not present and had sworn falsely at the trial, this court said: “Moreover, the testimony of Johnson and his wife on the matter set out in the affidavits was in the nature of impeachment testimony of the Smiths (§ 4187, C. & M. Digest); and it has been held by this court that newly discovered evidence which goes only to'impeacjh. or discredit a witness is not ground for a new trial. Murphy v. Willis, 143 Ark. 1, 219 S. W. 776; Hayes v. State, 142 Ark. 587, 219 S. W. 312; Plumlee v. St. L.-S. W. Ry. Co., 85 Ark. 488, 109 S. W. 515; Tillar v. Liebke, 78 Ark. 324, 95 S. W. 769; Jones v. State, 72 Ark. 404, 80 S. W. 1088; Minkwitz v. Steen, 36 Ark. 260.”
In Arkansas P. & L. Co. v. Mart, 188 Ark. 202, 65 S. W. 2d 39, this court said: “This court has many times held that motions for a new trial on account of newly discovered evidence are addressed to the sound discretion of the trial court, and that this court will not reverse for failure to grant unless an abuse of such discretion is shown. Forsgren v. Massey, 185 Ark. 90, 46 S. W. 2d 20.”
IV
It is next argued that error was committed in refusing a continuance of the cause and in refusing to require Mrs. Strickland’s personal attendance at the trial. It appears from the record that at the time of the trial Mrs. Strickland resided in Searcy, Arkansas, and was in a delicate condition on account of impending childbirth and physically unable to appear. Her testimony was taken on interrogatories and cross-interrogatories and introduced at the trial.
Appellants rely upon § 5220 of Pope’s Digest which is as follows: “Where it is made to appear, by the affidavit of a party and the written statement of his attorney, that the testimony of a witness is - important, and that the just and proper effect of his testimony cannot, in a reasonable degree, be obtained without an oral examination before the jury, the court may, at its discretion, order the personal attendance of the witness to be compelled, although such witness may otherwise be exempt from personal attendance by law.”
It is made clear under this section that the personal al tendance of a witness, otherwise exempt (§§ 5217, 5219, Pope’s Digest), lies within the sound discretion of the trial court. This appellants frankly concede. We are unable to say in the circumstances here, however, that an abuse of discretion has been shown.
V
Finally appellants urge that the verdicts are excessive, and we think this contention must be sustained.
The record reflects that about eleven a. m., November 8,1939, appellees were driving in a Terraplane sedan north on Cross street in the city of Little Rock, Arkansas, when they reached a point about fifteen feet from Garland avenue (a cross street). Appellees broug'ht their car to a stop about two feet from the right curb of Cross street to permit traffic to clear the intersection immediately ahead. The three appellees were sitting on the front seat of their car, Wayman Ward under the steering wheel, Melba Bryant next to the right front door and Fay Ward sitting between with the gear shift lever between her knees. While in this position appellants’ panel-bodied truck, driven at about forty miles an hour south on Cross, collided with a car driven by Mrs. Strickland near the intersection of Garland avenue and Cross street, causing the Strickland car to run into a telephone pole and the truck to turn over, falling upon and striking the front of the left front fender, radiator grill of appellees’ car, smashing and flattening the tire on the left front wheel and otherwise damaging the front of the car. The evidence does not disclose that appellees’ car was moved perceptibly from its stationary position by the impact from appellants ’ truck.
After the collision, appellees got out of their car through the right door. Melba Bryant testified that she stepped from the. car onto the curb. As to what happened when the impact came, Fay Ward testified: “Q. What happened to you when that truck came into your car? A. I saw and realized that the truck was going to hit us, and I was in the middle Of the car astraddle the gear shift, and I braced my feet for it, to brace myself. When the truck hit our car, it threw us and the car up in the air, but as I started to go up in the air my knees caught the dashboard, and it pushed me suddenly down and forward. I broke the gear shift off with my stomach and my knees, but I stayed down. I didn’t go up very high.”
Melba Bryant testified that the impact caused her forehead to strike, and cause a crack in the upper right corner of the windshield. The windshield was not shattered. A large knot formed on her forehead. She received no broken bones. One of her ribs was made sore, and she had it taped up. Since the collision, she has been nervous and cries at times. When sixteen years of age, she was operated oil for appendicitis and in February, 1939, before the injury which she received in the collision, she was operated on for adhesions resulting from the appendectomy, and at intervals since the latter operation has taken ‘ ‘ shots. ’ ’
Wayman Ward’s injuries were of a minor nature and he did not sue for physical damages.
After appellees got out of their car Fay Ward fainted and was taken to the office of a physician. Shortly thereafter she was removed to a hospital in Little Rock where she was placed in a cast in which she remained for about eight weeks. Since the removal of this cast she has worn a padded steel brace to support her back. At the time of the trial, Fay Ward was twenty-seven years of age. About six years before the trial, she underwent an abdominal operation, but says she had never had any trouble with her back. Since the collision she has undergone much pain and suffering. She was asked: “Q. Can you go to entertainments like you used to? A. Ño, lots of times I go to church on Sunday morning when I am able because I enjoy going to church, and at night my husband always rides me around awhile. It’s the only time I get out. It’s the only way I have to go. . . . Q. Have you tried walking any down town? A. Yes, I walked two or three times, oh, more than that, I would say a dozen times. One time down town I got so bad I just didn’t have any use of my limbs, and if it hadn’t been for my lady friend with me, I would have dropped on the. sidewalk. Q. How long* ago was that? A. About the 10th of last month. ...”
Hr. Donald Hays, who treated Fay Ward in his office and at the hospital, testified from X-ray pictures made of her back in his presence and from a diagnosis. As to her injuries we quote from his testimony: “Q. What do those pictures and your diagnosis disclose to you about the condition of Mrs. Ward? A. That she had a broken back, that is a fracture through the left pedicle of the fifth lumbar vertebra and a partial dislocation of the lumbar sacral point permitting the spine to slide forward on the sacrum. The' sacrum is the large bone in the back of the pelvis. . . . Now, of course, if any of these vertebrae from the head down to the pelvis is broken in any part, we speak of it as a broken back. ’ ’
He further testified from the X-rays that after the cast was removed that the fracture had not healed, but that her condition was worse; that her disability would continue and he considered her to be permanently and totally disabled. He advised a fusion operation and called in Dr. Walter Carruthers, a specialist in this line, who concurred in his view. These specialists testified that these operations which are major in their nature, were not always successful and even though successful she would always have a stiff back.
There was evidence that Fay Ward fell some five or six steps down a stairway at a dance hall in Fayetteville, Arkansas, in 1931 before the injuries complained of here. She testified that no injury to her back resulted from this fall.
Taylor Hannah, a police officer in Fayetteville, Arkansas, and who has lived there about twenty-eight years, testified that he has known Fay Ward since her early childhood and that he knew she had something wrong with her back in 1931; that at that particular time he was wearing a brace himself and was interested in anybody else who might be wearing one and further : “I don’t remember whether I accidentally bumped into Fay or whether I just met her on the street. Anyhow, the conversation came up and Fay was walking rather stooped, and I am under the impression now, and was then, that she either had tape on her back or had some sort of brace on. Either that, or her back was so sore she couldn’t bend it, because she moved in one piece. . . . Q. How do you know her back was stiff? A. By the way she moved. . . . And, of course, she told me that she did have a stiff back; that her back had been hurt,”
Dr. M. D. Ogden, a specialist, testified for appellants that he took X-ray pictures of Fay Ward and that they showed essentially the same condition that was mentioned by Dr. Hayes and Dr. Carruthers, “Q. Doctor, you have heard the medical testimony in this case and from all the facts found by the other doctors, and' from your own examination, are you of the opinion that this slippage existed before the accident? Now, of course, I realize you can’t— A. If I had to guess, I would say that it existed before the accident. There is no way to be positive about that, and that guess would be on the fact that the fracture is together and the slippage is still there. ’ ’
Another specialist for the appellants, Dr. Hollenberg, testified hypothetically, basing his conclusions on the testimony of the other physicians, as to conditions that were shown by X-ray to be present in the back of Mrs. Ward, that Fay Ward’s condition was due to a cause pre-existing the collision of the car and truck in question. He further testified that Fay Ward’s condition, the proper medical term for same being spondylolisthesis, is congenital in about five per cent, of all cases.
The evidence is very voluminous and it would unduly extend this opinion to attempt to abstract it at greater length. That Fay Ward received some injury is conceded. Her injuries were determined by X-ray pictures although she claimed other injuries which were only subjective. At the time of her alleged injuries the undisputed proof is that she was sitting on the front seat of the car cushioned between her husband' and Melba Bryant with the gear shift lever between her knees. The impact caused her to bounce up from her seat, not forward. Melba Bryant was thrown forward, according to her testimony. There is no evidence that the car in which appellees were sitting moved from its position. Photographs in evidence of appellees’ car show that the left front fender and radiator grill were smashed along with the tire on the left front wheel.
Wayman Ward, who sat nearest the left front fender, was not injured and the injuries to Melba Bryant were slight.
In any view of the evidence, as reflected by this record, we think the jury’s verdict of $34,500 in favor of Fay Ward clearly excessive and not within the range of the evidence adduced.
The rule.is well settled in this state that a jury may not be left without some restraint in the matter of assessing damages. In Aluminum Company of North America v. Ramsey, 89 Ark. 522, 117 S. W. 568, this court announced the rule in this language: “It has been frequently said that it is difficult to find a measure of damages for pain, for the obvious reason that none would be an acceptable inducement to suffer it; but when it has occurred the compensation as such must be considered upon a reasonable basis of estimate. Under our system of jurisprudence, the amount of damages must be left largely to the reasonable discretion of the .jury. Again, we may say, it has been repeatedly held that they may not give any amount they please. ’ ’
In the very recent case of Missouri Pacific Trans. Co. v. Simon, et al., 199 Ark. 289, 135 S. W. 2d 336, this court re-affirmed the rule announced in the Ramsey case and said: “When our views are firmly fixed in respect of a miscalculation by jurors, or of a mistake that has been made through sympathy, prejudice, or partiality, and the record sustains our conclusions that the extrinsic elements or considerations referred to have entered into the result, it then becomes our solemn duty either to reverse and remand for another trial, or to give judgment here for a sum we think justified', and to eliminate any excess that is hot sustained by substantial evidence. ’ ’
Quoting further from the opinion: “The rule is stated in Corpus Juris Secundum, vol. 5, § 1650, as follows: ‘A finding of value or the amount of damages is so much a matter within the exclusive province of the jury that it will ordinarily not be disturbed by the reviewing court where the issue has been fairly submitted under proper instructions, unless palpably without support in the evidence presented at the trial, unless the jury have departed for the same reason from the legal measure of damages, or unless the verdict is so palpably excessive or grossly inadequate as to indicate bias, passion, prejudice, corruption, outside influence, or mistake, or shock the conscience or sense of justice, or unless manifest error therein otherwise appears. . . . However, (p. 646) it has been held that an appellate court may or must interfere if the verdict is not reasonably within the range of the evidence, or where there has been an abuse of discretion, or if it appears to be the result of passion and prejudice. . . . Since the duty of guarding against excessive verdicts (§ 1651) rests to a great extent o.n the trial judge, who will presumably not allow excessive verdicts to stand, the authority invested in appellate courts to disturb the verdict of the jury on the ground of excessive damages is one which should be exercised with great caution and discretion. . . .
“ ‘A verdict will be set aside by an appellate court as excessive where there is no evidence on which the amount allowed could properly have been awarded; where the verdict must of necessity be for a smaller sum than that awarded; where the testimony most favorable to the successful party will not sustain the inference of fact on which the damages are estimated; where the amount awarded is so excessive as to lead to the conclusion that the verdict was the result of passion, prejudice . . . or of some error or mistake of principle, or to warrant conclusion that the jury were not governed by the evidence. . . ”
The verdict of $5,000' in favor of Wayman Ward we think clearly excessive under the following instruction which was given at plaintiffs’ request: “You are instructed that if you find for the plaintiff, Wayman'Ward, you will assess his damages at such a sum as will reasonably compensate him for the damages to his automobile, if any, and the amount of money expended for medicine and medical attention for his wife, if any, and the amount of money, if any, that the evidence shows, it will be necessary for him to expend in the future for medicine and medical attention for his wife, if any, and from these as proven by a preponderance of the evidence, assess such damages as will reasonably compensate him for his damages, if any.”
This instruction limited Wayman Ward’s recovery to the damages to his automobile and the present and future medical expenses of his wife. He asked nothing for loss of services and consortium. There is evidence that his total recovery under the above instruction would not be more than $2,709.90, which would include an estimated $1,500 for an operation, hospitalization and attendant expenses. It is our view in the circumstances that a judgment for $5,000 would be excessive.
We are also of the view that the judgment in the amount of $1,000 for Melba. Bryant is excessive on the facts before us. As a result of the impact of the car and truck she received a knot on the forehead, no bones were broken. While she testified that since the accident she is more nervous than before, there is no substantial evidence showing permanent injury.
. ■ Under the rule followed in the Simons case — that a miscalculation by jurors, if materially affecting the verdict, must be corrected — we think error is clearly reflected in the instant appeal. There must have been failure to consider evidence relating to Fay Ward’s former injuries — injuries testified to by Taylor Hannah; and there must have been assumption, amounting to speculation that the relatively slight movements of the automobile in which appellees were sitting at the time of collision produced all the consequences of which Fay Ward complains. The very size of the verdict is conclusive. of the proposition that it was assumed all of the injuries, pain and attending inconvenience resulted from the contact.
On the whole case, we have concluded that a judgment for more than $15,000 for Fay Ward, $3,750 for Wayman Ward, and $750 for Melba Bryant would not be warranted. If, therefore, appellee, Fay Ward, will within 15 days from the date of this opinion, enter a remittitur of the .judgment in her favor to $15,000, and appellees, Wayman Ward and Melba Bryant, will within said time, enter remittiturs in their judgments to $3,750 and $750, respectively, then the judgments will be affirmed as to those accepting the reduction; otherwise, the judgments will be reversed and the cause remanded for a new trial. | [
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Hart, C. J.,
(after stating the facts). It is first earnestly insisted that the court erred in not directing a verdict for the defendant. In making this contention, coun sel claim, that the court should have told the jury as a matter of law, under the evidence introduced, that the plaintiff assumed the risk. This court has so often said that the employee assumes all risks naturally and reasonably incident to the services in which he engages, where the hazards of the service are obvious and within the apprehension of a person of his experience and understanding, that a citation of authority is hardly necessary. In short, by the contract of service, the servant agrees to bear the risk of all the ordinary dangers incident thereto, and he therefore cannot recover for an injury resulting therefrom. C. R. I. & P. Ry. Co. v. Grubbs, 97 Ark. 486, 134 S. W. 636, and oases cited.
In asking for a directed verdict, counsel for the defendant relied expressly upon Arkansas Cotton Oil Co. v. Carr, 89 Ark. 50, 115 S. W. 925, and Francis v. Arkadelphia Milling Co., 153 Ark. 236, 239 S. W. 1067. We do not consider these cases as conclusive that the plaintiff assumed the risk.
In the Carr case the servant was engaged in moving stacks of meal from a pile for the purpose of loading them on railroad cars, and was injured by other bags on the same pile falling on him. He was held to have assumed the risk because the undisputed facts showed that the servant was injured while in the discharge of his duties, which required him to constantly change the condition of the working place. In that case the nature of the work in removing sacks made the working place more or less dangerous, and it was the duty of the plaintiff to make close examination of the place to see that it was safe. In the case at bar, the servant was injured by a sack from a different pile falling upon him. He was not ■ required to make an examination of his working place in order to see that it was safe. He was not changing the condition of the working place at all. The danger was created by the acts of other servants in piling the sacks of meal, and it did not result from the act of the servant in removing a sack from the pile of sacks filled with cottonseed meal which fell upon him.
In the Francis case, the court said that the undisputed facts showed that the danger was so patent and open that it might have been noticed by casual observation. The pile of sacks of meal was not only perpendicular, but was leaning* or bulging out at the top. The plaintiff was familiar with the place where he was working, and the condition in which the sacks were left through the negligence of the employees of the defendant was obvious and evident to .any one working* around the stacks of sacks. We cannot say that this is a matter of law here. According to the evidence of Webber Skinner, the pile of sacks of cottonseed meal which fell and injured the plaintiff was not properly stacked. On the top it looked like the sacks were just thrown up there and were not placed close together as they should have been. The defect was one that was not observable unless a close examination was made. The plaintiff had nothing whatever to 'do with stacking the sacks of cottonseed meal, and it was not his duty to examine his working place to see if it was safe. He was not injured by sacks falling from the pile on which he was working to remove the sacks. Hence there was no occasion for him to have observed the pile of sacks which fell and injured him.
Under the facts and circumstances shown by the plaintiff, we do not think the court was required as a matter of law to have instructed a verdict for the defendant on the ground that the plaintiff assumed the risk. On the other hand, we think the court properly left the question of assumption of risk by the plaintiff to the jury as a matter of fact to be determined by it.
The next assignment of error is that the testimony of Webber Skinner was not competent because it was not shown that he had any knowledge of the matters about which he was testifying, and that his testimony wa.s purely speculative, because it was only expressive of his own opinion. We do not agree with counsel in this contention. This witness made an examination of the scene of the accident immediately after it occurred. He examined the pile of sacks of cottonseed meal, and described their condition. He stated facts as they appeared from the condition of the pile of sacks of cottonseed meal, and the jury had a right to give it such force as might be deemed proper, considering his explanation of the way he found the pile of sacks immediately after the accident occurred. St. L. I. M. & S. Ry. Co. v. Flinn, 88 Ark. 489, 115 S. W. 142; Little Rock Traction & Electric Co. v. Nelson, 66 Ark. 494, 52 S. W. 7, and St. Louis-San Francisco Ry. Co. v. Barron, 166 Ark. 641, 267 S. W. 582.
Counsel for the defendant also contend that the judgment must be reversed because the court erred in giving instructions Nos. 1 and 3, requested by the plaintiff. The instructions complained of read as follows:
“Instruction No. 1. You are instructed that it was the duty of the defendant to use reasonable care to provide the plaintiff, Cordon Skinner, with a reasonably safe place in which to work; and if you find from a preponderance of the evidence in this case that the defendant, Temple Cotton Oil Company, negligently failed to use such care in the stacking of its meal, by which the plaintiff claims to have been injured, and that by reason of such failure the plaintiff was injured as alleged, without fault or carelessness on his part, then it will be your duty to return a verdict for the plaintiff, Cordon Skinner.”
“Instruction No. 3. You are instructed that, while an employee assumes all the risks and hazards usually incident to the employment he undertakes, he does not assume the risk of the negligence of the company for whom he is working or any of its servants. In other words, ho has a right to assume not only that the master will perform its duty, 'but he has a right to assume that each of the other servants will perform their duty, and if, while in the exercise of ordinary care, he was injured, either by the negligence of any other servant, of the master, he has a right to recover; and if you find from a preponderance of the evidence in this case that the plaintfif, Gordon Skinner, while in the exercise of ordiniary care, was injured 'by the negligence of the master for whom he works or by the negligence of any other servant in the stacking of the meal, by which plaintiff claims he was injured, if you find it was negligently stacked, then your verdict should be for the plaintiff.”
At the request of the defendant the court instructed the jury upon the doctrine of assumed risk as a defense to the action. Counsel for the defendant claim that the instructions copied above are erroneous, under the doctrine laid down in Garrison Company v. Lawson, 171 Ark. 1122, 287 S. W. 396, and Natural Gas & Fuel Co. v. Lyles, 74 Ark. 146, 294 S. W. 395.
On the other hand, counsel for the plaintiff seeks /to uphold the action of the circuit court in giving the instructions under the doctrine laid down in St. Louis, Iron Mountain & So. Ry. Co. v. Rogers, 93 Ark. 564, 126 S. W. 375, 1199.
We all agree that an instruction should be complete in itself when it undertakes to tell the jury when a verdict should be returned for the plaintiff, and that the trial court should not instruct the jury that it must find for the plaintiff or the defendant, as the case might be, upon a partial or incomplete statement of the law applicable to the material facts of the case. We also agree that, where the body of the instruction does not contain every material fact proper to be established, what is called in Winter v. Bandel, 30 Ark. 362, p. 376, the stereotyped “find for the plaintiff” had better be left off.
The majority of the court, however, is of the opinion that the Rogers case has no application under the record as presented in the case at bar. ■ In the Rogers case,'while the instruction complained of wound up with the phrase, “then you will find for the plaintiff,” it was immediately followed by an instruction upon contributory negligence; and the court held that, from the language used in the two instructions and their juxtaposition, they were in reality explanatory of each other, instead of being inconsistent and contradictory. The court in that ease reiterated the rule laid down in Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, 123 S. W. 1048, and other cases of this court to the effect that separate and disconnected instructions, each complete and irreconcilable with each other, cannot be read together so as to modify each other and present a harmonious whole. Hence the majority of the court holds that, -while an incomplete instruction may be cured by a subsequent one, as laid down in the Rogers case, the instructions in question are inherently wrong, and cannot be cured by a subsequent instruction, for the reason that the two instructions are inconsistent and only serve to confuse and mislead the jury. The majority is of .the opinion that the two instructions copied above and the instructions given at the request of the defendant on the doctrine of assumed risk contain inconsistent propositions of law which call for a reversal of the judgment.
The writer thinks that the better view is that a general objection was not sufficient, but that a specific objection should have been made, as explained in Arkansas Midland Rd. Co. v. Rambo, 90 Ark. 108, 117 S. W. 784, and St. Louis Southwestern Ry. Co. v. Graham, 83 Ark. 61, 102 S. W. 700, 119 Am. St. Rep. 112. It is true that the instruction complained of in each of these cases does not conclude with the phrase, “you will find for the plaintiff,” but the writer thinks that equivalent words are used, in which the jury was told that, if it should find the' defendant guilty of the negligent acts set out in the instruction, the plaintiff would be entitled to recover.
The result of our view's is that it is established as a settled law of this State by the decision in Garrison Co. v. Lawson, 171 Ark. 1122, 287 S. W. 396, and Natural Gas & Fuel Co. v. Lyles, supra, that an instruction is inherently erroneous, and therefore prejudicial, which leaves out of consideration the plaintiff’s contributory negligence or his assumption of risk, and leaves to the jury the determination of the defendant’s’ conduct, as the sole issue of the jury’s verdict, by concluding with the phrase, “you will find for the plaintiff,” since, under the evidence, the conduct of the jjlaintiff as well as that of the defendant is essential to a proper verdict.
For the error in giving instructions Nos. 1 and 3, at the request of the plaintiff, the judgment will be reversed, and the cause will be remanded for a new trial. | [
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Kirby, J.
Appellants brought this suit against A. M. Berry, a nonresident of the State at the time, and had a garnishment issued against Lucile Hogins, who had been appointed receiver in an insolvency proceeding under the State laws, brought on the 19th day of August, 1926, by the said Berry against the Courier-Democrat et al., in which he had been declared an insolvent, and a receiver appointed to take charge of his assets for the benefit of his creditors. The receiver took charge, made an inventory, and sold the merchandise of the insolvent debtor, and placed the proceeds, in the bank.
All the creditors of the insolvent debtor, Berry, except the appellants, filed their claims with the chancery court for allowance. On September 19, 1926, appellants brought this suit in the circuit court against Berry, who was a nonresident, having left the State after the ¡appointment of the receiver, and had a garnishment issued against said receiver. The receiver filed a demurrer to the complaint, which was sustained, and, upon appel lante declining to plead, further, the suit was dismissed, and. from the judgment this appeal is prosecuted.
It is contended by appellants that the Federal Bankruptcy Act of 1898, in force, suspends and puts in abeyance the insolvency statutes of the State of Arkansas providing for the distribution of the assets of an insolvent debtor among his creditors, §§ 5885-5893, C. & M. Digest of the Statutes, and that the order of the chancery court appointing the receiver was void, and in no wise affected its rights under the law to subject the assets of this insolvent debtor to the payment of their debt, and that the court erred in holding otherwise.
' The court held, in Hickman v. Parlin-Orendorff, 88 Ark. 519, 115 S. W. 371, that the insolvency laws of Arkansas were suspended b3r the Bankruptcy Act of Congress of 1898 and have since that date remained in abe3mn.ce, so far as the3r relate to the same subject-matter and affect the same persons as the ¡act of Congress still in force. This holding* was reaffirmed in Roberts Cotton Oil Co. v. F. E. Morse & Co., 97 Ark. 513, 135 S. W. 334, which was distinguished because it did not affect the same persons as the bankruptcy act.
This court held, however, in a recent case, International Shoe Company v. Pinkus, 173 Ark. 316, 292 S. W. 996, that, in a jn’oceeding by the insolvent debtor for'the disposition of his assets under the laws of the State, through the chancery court, although: it constituted an act of bankruptcy, it would be binding and effective unless and until the jurisdiction of the Federal court was properly invoked, saying:
“Simply because an insolvent debtor nnry go into the bankruptcy court, or may be forced to go b3r a petition of creditors, does not prevent him from disposing of all his property for the benefit of all of his creditors, unless the jurisdiction of the bankrupt court is properly invoked, and we therefore conclude that, unless and until the jurisdiction of the bankrupt court is property invoked, the voluntary agreement of the creditors is binding.”
The present case is ruled by the Pinku-s case, supra, and, under its (authority, the majority i© of opinion that no error was committed in holding the complaint of plaintiff insufficient and dismissing its garnishment and cause of action. The judgment is affirmed. | [
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Humphreys, J.
This action was instituted by appellants against appellee in the chancery court of Wood-ruff County, Southern District, for an injunction to prevent the transfer of the funds derived from the collection of the 3-mill road tax authorized by Amendment No. 3 (so numbered in Crawford & Moses’ Digest) to the Constitution, to one account for use in general road and bridge work throughout the county. The case was disposed of by the trial court on the pleadings, consisting of the complaint and demurrer, which resulted in a decree dismissing the complaint for want of equity, from which is this appeal.
The material allegations of the complaint, according to the abstract of appellants, are as follows
“That appellants are owners of land and taxpayers in Cotton Plant Township, and that appellant, J. T. White, is road overseer of said township, under act No. 370 of the Acts of 1911; that said act No. 370 provides that each township of Woodruff County shall constitute a road district, and a road overseer of each district shall .be elected every two years; that the appellee is treasurer of Woodruff County; that in the general election of 1926, and in each year prior thereto since 1901, a majority of the electors of Woodruff County have' voted a 3-mill road tax under Amendment No. 3 to the Constitution of Arkansas, and that, pursuant to such action, the said tax has been levied and collected; that, under § 5490 of Crawford & Moses ’ Digest, it is the duty of the collector of taxes to keep the 3-mill road tax of each township in a separate account; and that it is the duty of the county treasurer and the county clerk to keep a separate account with each township as to the said 3-mill road tax; and that, under § 5278 of Crawford & Moses.’ Digest, which is a section of the act of 18991 governing the expenditure of the 3-mill road tax under the constitutional amendment, the said taxes cannot be expended in any township or road district except that in which the same are collected; that approximately $4,500 is in the hands of the appellee as treasurer of Woodruff County to the credit of Cotton Plant Township as a road district; that the county judge of Woodruff County has ordered appellee, as treasurer, to transfer, without authority of law, certain funds from the road tax fund of Cotton Plant Township to other accounts, and has ordered and directed the said treasurer to transfer a certain portion of the funds of said road district to a separate account, known as the county highway account, in order that the said funds so transferred may be expended under the direction of the county judge on roads and bridges in other townships; that the county judge has announced his intention of using the road taxes collected in Cotton Plant Township in general road and bridge work in Woodruff County, and contends that he has the authority to expend such funds in work on the roads and bridges of other townships; that the appellee-has in fact made a transfer of certain funds to the credit of Cotton Plant Township, and will make further transfers if not restrained; that appellants are without a remedy at law, and, if not restrained, appellee will transfer funds from the account of Cotton Plant Eoad District, and the same will -be expended illegally.
The prayer of the complaint is that appellee be restrained from making’ a transfer of said funds or from making any illegal expenditure- of said funds, and that he be ordered by mandatory injunction to transfer back to the credit of Cotton Plant Eoad District any funds already illegally transferred.
The demurrer, omitting caption and signatures, is as follows:
“Comes the appellee, by his attorney, J. F. Summers, and demurs to the complaint and motion for a temporary restraining- order, and for his cause of demurrer says: (1) That the court has no jurisdiction of this cause, for the reason that the appellants have an adequate remedy at law, if the facts alleged in the complaint are true; (2) That the facts alleged in the complaint are not sufficient to constitute a cause of action.”
The substance of the decree is as follows:
“Being sufficiently advised, it is by the court considered, ordered, adjudged and decreed that the demurrer of appellee be and the same is hereby sustained, on the ground that the court has no jurisdiction, and that the appellants have an adequate remedy at law. To which action of the court appellants at the time except, and refuse to amend their complaint or to plead further. And it is therefore by the court considered, ordered, adjudged and decreed that the complaint be dismissed for want of equity.”
The first question involved on appeal is whether the chancery court had jurisdiction of the action. It was settled in the case of Sanderson v. Texarkana, 103 Ark. 529, that an improper application of funds collected under the 3-mill road tax amendment would be prevented by injunction; and in the case of School District No. 4 v. School District No. 84, 93 Ark. 109, 124 S. W. 238, that an illegal diversion of school taxes will be restrained by the chancery court. In both of these cases it was contended that the plaintiffs had an adequate remedy at law. If the funds in the two cases cited had been illegally diverted and expended, the funds would have been lost to those entitled thereto. This court said, in the school district case, supra, that:
“We are also of the opinion that a court of equity had jurisdiction to restrain the illegal diversion of the school tax. If the tax should, pursuant to the void order of the county court, be paid over to the credit of the other district and spent, the district to which it belonged would be remediless. The remedy at law is not complete, and a court of equity should interfere to give appropriate relief. ’ ’
In the instant case, if the funds referred to had been transferred and used for general road and bridge work in the county, appellants would be remediless. We think the two oases cited are directly in point on the question of the jurisdiction of the chancery court.
The next and only other question involved on the appeal is whether appellants are entitled to the relief prayed. It is admitted by the demurrer that the county judge of Woodruff County will transfer all funds belonging to the different road districts of the county into a single fund, unless enjoined, for the purpose of using same upon roads and bridges throughout the entire county. The fund in question was voted, levied and collected under Amendment No. 3 to the Constitution, which was adopted at thq election of 1898. A short time after the declaration-of its adoption by the Speaker of the House, on January 13,1899, the Legislature passed an act governing the expenditure of said tax. It was provided in the act that the county clerk and the county treasurer should keep the road funds in separate accounts, and such funds should not be expended for the repairs of roads and bridges in any other district than that in which said money was raised and voted, except to purchase machinery for general use in the county, which might be paid for out of the funds of the different districts pro rata and according to the amount of taxes collected in each district. Appellee argues that this act is in conflict with Amendment No. 3, quoted above, and also with § 28, article 7, of the Constitution, granting to county courts, exclusive original jurisdiction in all matters relating to roads. By reference to Amendment No. 3 it will be seen that the Legislature is not inhibited from providing that the fund 'Shall be expended in the road districts where the taxes raised are voted. The only restriction in the amendment is that the fund shall be used in the respective counties for making and repairing public roads. Just where it is to be spent is left open for the State in its sovereignty to designate.
An inspection of the act, the gist of which is contained in §§ 5278, 5490, 5502 and 5503 of Crawford & Moses’ Digest, shows that no attempt is made to take from the county court its supervision over the expendi lure of the fund. It is merely a regulatory act, providing that the fund shall he expended in the road district in which collected.
The trial court erred in dismissing appellants’ complaint; hence the decree is reversed, and the cause is remanded, with instructions to the trial court to' enjoin appellee from transferring the funds in excess of twenty per cent., heretofore transferred, to huy machinery for use throughout the county, to the county highway account, for use on roads and bridges in other townships than Cotton Plant Township. | [
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McCulloch, C. J.
This is an appeal from a summary judgment entered nunc pro time by the circuit court of Conway County in favor of appellee against appellant as surety, on an appeal bond executed on appeal from a judgment of a justice of the peace to the circuit court.
Appellee instituted before a justice of the peace of Conway County an action against Joe Spooner to recover a debt in the sum of $150, alleged to be due for rent of land. There was an order of attachment issued and levied on crops raised on the leased premises, and defendant Spooner gave a discharging bond, with appellant Ralph Burgner as surety.
Appellee also instituted another action against Joe Spooner, before the same justice of the peace, to recover a lot of personal property. An order of delivery was issued and served, and the defendant Spooner gave a retaining bond, with appellant as surety.
The two cases were consolidated and tried together before a justice of the peace, and the trial resulted in a judgment in favor of the plaintiff, who is the appellee on this appeal. Joe Spooner, the defendant, obtained an appeal to the circuit court, and the two causes were consolidated there and tried together, resulting in a ver diet and judgment in favor of appellee against Joe Spooner, for the sum of $75 as rent and for a portion of the personal property sued for in the action of replevin. The court rendered judgment against Joe Spooner on the verdict, but failed to render any judgment against the surety. At a subsequent term of the court, appellee filed a motion against appellant, as surety on the appeal bond, for judgment to be entered nunc pro tunc. Upon the filing of the motion a summons or notice was issued and served on appellant, and thereafter the court heard the motion, and rendered judgment in accordance with the prayer thereof, against appellant, for' the amount of the original money judgment against the defendant Spooner.
Appellant argues the case as if the summary judgment appealed from was rendered on the attachment bond, and he contends that, inasmuch as there was a verdict of the jury dissolving the attachment, there could be no judgment rendered on that bond. The contention of counsel would be sound if he were correct in stating that the judgment was rendered on the attachment bond. The'statute (Crawford & Moses’ Digest, § 525) was taken from the Civil Code, § 242, and provides for the execution of a discharging bond in attachments. The digester failed, however, to include the amendment to this section by the act of March 6, 1891 (Act 1891, p. 56), adding a proviso as follows: “Provided, that the giving of this bond by the defendant shall not preclude his right to controvert the existence of the ground stated by the plaintiff in his affidavit for the order of attachment.” Another section of the statute (Crawford & Moses’ Digest, § 542) provides that if, in an action where there is an attachment, the plaintiff recover against the defendant, and the attachment shall be discharged upon the execution of a bond, “the court shall render judgment against the defendant and his sureties in said bond for the amount recovered and the cost of the suit.” This section was impliedly amended by the act of 1891, supra, to the extent that judgment can only be rendered against a surety where the attachment is sustained, for the provision permitting the defendant in the action to controvert the ground of attachment, notwithstanding the execution of a bond, necessarily implies that if, on such contest, the attachment is not sustained, the surety is not bound. In this case the attachment was dissolved by the verdict of the jury, and this discharged the surety from any liability on that bond. Appellant was, however, the surety on the appeal bond, and, as before stated, that was the bond on which the court rendered judgment.
The statute provides (Crawford & Moses’ Digest, § 6513) that, on appeal from a judgment of a justice of the peace, the appellant shall give bond conditioned that he will prosecute his appeal with diligence to a decision, and that “if, on such appeal, the judgment of the justice be affirmed, or if, on a trial anew in the circuit court, judgment be given against him, that he will pay such judgment, and, if his appeal be dismissed, that he will pay the judgment of the justice, together with the costs,” etc. The bond was given in accordance with this statute, and another section of the statute (Crawford & Moses’ Digest, § 6531) provides that, in the case of an appeal from a justice of the peace, “if, on a trial anew in the circuit court, the judgment be against the appellant, such judgment shall be rendered against him and his securities in the appeal bond.”
It has been decided by this court that, where the judgment omits the sureties on the appeal bond, a judgment may be rendered nunc pro tunc against the sureties at a subsequent term without notice to them. Freeman v. Mears, 35 Ark. 278. Notice was, however, given in the present case.
The court was correct in rendering the judgment, and the same is affirmed. | [
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Jack Holt, Jr., Chief Justice.
The appellant, Don William Davis, was charged and convicted of the capital murder of Jane Daniel, burglary and theft of property. He was sentenced to death by lethal injection on the capital murder charge and given two forty-year sentences and two $15,000 fines on the burglary and theft of property charges. On appeal, Davis assigns to us the following issues for consideration: sufficiency of the evidence; whether the trial court erred in not granting funds for an independent ballistics expert, sociologist, and psychiatric expert; and whether the trial court erred in not granting a mistrial or an admonishment to the jury when the prosecutor made allegedly prejudicial comments in his closing argument. We affirm the trial court.
The facts before us are these: Sharon Haley, who with her husband Mike were also victims of a burglary and neighbors of the murder victim, testified that at about 4:15 p.m. on October 12, 1990, she returned home and found that her screen door was taped open and the wooden door between the garage and the kitchen standing open. When she entered the house, she noticed that a hand gun that had previously been on the bed table was gone and that a console television was pulled away from the wall and the wires disconnected. Fearful, she called the 911 emergency number from the garage phone and went to a neighbor’s house.
Once the police arrived, they asked her to take an inventory of her property. She noted the following items missing:
several guns and appliances, a videocassette recorder, a large Sharp convection/microwave, a thirteen inch Sharp television set, both of her jewelry boxes, an Amish quilt, an older model Realistic brand stereo component set, her wedding ring, antique locket, a small gold chain, a couple of ladies watches, a Mickey Mouse watch, diamond earrings, a set of sapphire earrings, pearls, pearl earrings, and a couple of costume black onyx earrings; her husband’s two high school class rings and one college rings; a cluster ring with pearls and rubies missing, a couple of silver rings with turquoise stones and a matching silver bracelet; silver herringbone chain; while gold ring with a pink zircon; costume choker; tools from the garage; a crossbow; her husband’s collection of Harley-Davidson t-shirts & leather jacket; Yankee and Penn State t-shirts; special run bottle of Wild Turkey liquor wrapped in a wooden box; and a bottle of Crown Royal.
Mike Haley testified concerning the many firearms and weapons stolen from their home during the burglary. His list included: a 410 shotgun, a .22 rifle, Marlin Model 39-A, with a banner scope, a Ruger M-77 6 mm deer rifle, a Stevens double barrel shotgun, a .44 magnum pistol with a scope and a Winchester Model 50, 20 gauge shotgun. Also missing were a crossbow and crossbow arrows as well as numerous types of ammunition for the firearms.
At about 10:00 p.m., the same day as the Haley burglary, the Haleys’ neighbor, Richard Daniel, returned home from a business trip and noticed the door of his garage into the kitchen hallway was open. As he entered the house, he saw a rice pan and bowl out in the kitchen, and it startled him when he noticed a Kool cigarette butt in the rice bowl (especially since neither he nor his wife smoked). Noting that the storeroom door was ajar, he entered to find his wife, Jane, lying on the floor in a pool of blood. She was lying with her head face down in a cardboard box towards the wall, obviously, dead. Like Mrs. Haley, Mr. Daniel called 911 for help.
Police attempted to trace Mrs. Daniel’s activities during the day. An employee of the Rogers Diagnostic Clinic testified that the victim came into the clinic around lunchtime to get a flu shot. Mrs. Daniel’s beautician, Gaye Tarron, testified that Mrs. Daniel had a standing appointment every Friday at 2:30 p.m. and had never skipped an appointment without calling first. On October 12, 1990, for the first time in ten years, Mrs. Daniel missed her appointment and did not call.
About two weeks after his wife’s death, Daniel and his daughter searched the house for missing items. They found that an expensive Lucien Piccard watch was gone as well as a couple of pearl necklaces, a gold rope necklace, and a matching gold necklace and bracelet. Also missing were a jewelry bag and a Nikon camera.
At the time of the murder, the appellant, Don Davis, was living with three roommates in a house in Bentonville. One of the roommates, Renee Davis, testified that during the time they were living together, Don Davis had been bringing stolen merchandise home. On the day of the murder, the appellant had come home sometime between 1:00 and 2:00 p.m. acting frightened, according to his roommates, telling his girlfriend and roommate, Susan Ferguson, that “somebody got hurt.” Property seen in his possession that day included a Realistic stereo, a number of guns, a black motorcycle jacket, a videocassette recorder, a television, a microwave, numerous t-shirts, and tools. Later that day the appellant allegedly admitted to Renee and Susan that “somebody had gotten killed” but emphasized that he did not do it claiming that he had been next door when the murder occurred. He said that he “didn’t know why he shot her, she was cooperating.” Among the many items of property Davis had in the car was a gun covered by a white towel. He told Renee that if she touched the “towel it would be her death sentence.”
According to Susan, Renee told appellant to get rid of the stolen property because she did not want it in her house; Davis left and returned about thirty minutes later explaining that he had dumped the property in the woods in a remote area. Four days after the murder a number of the items taken in the Haley burglary, as well as Mrs. Daniel’s house and car keys, were found in a remote area of Benton County. Renee told her other roommate, Dwayne, about Davis’s suspicious behavior and the stolen property. He urged her to go to the police.
Ultimately, the police arrived at Davis’s home to question Renee, and she and the other two roommates agreed to let them search the house. Among the many items discovered in the house was a .44 magnum Redhawk revolver, which the State later alleged was the murder weapon that killed Jane Daniel. Also discovered was the Amish quilt taken from the Haley residence. Inquiries at pawn shops in the area revealed that Davis had pawned many items taken from both the Haley and Davis residences.
By this time, Davis had fled the state by taking a bus to Las Vegas, Nevada and ultimately arriving in California. Witnesses from several pawn shops in Las Vegas testified that they had loaned the appellant money on goods he had pawned. These goods matched the description of goods stolen from the Davis and Haley households. Agents with the Federal Bureau of Investigation found the appellant in Albuquerque, New Mexico, and arrested him. While being arrested, Davis asked the agents for the cigarettes that had been in his car; he described them as Kool filter kings, the same brand of cigarette found at Mrs. Daniel’s house. Investigators also found Davis in possession of the black leather jacket stolen from the Haley house. Detective Steven Mark Russell testified that he travelled to Albuquerque to transport Davis back to Rogers, Arkansas, and once they arrived in Rogers, Davis specifically asked for some Kool cigarettes.
Violette Hnilica, forensic pathologist with the Little Rock Medical Examiners Office, also testified at the trial. After conducting an autopsy she concluded that Jane Daniel had died from a contact wound resulting from an execution-style murder by a large caliber weapon to the back of her head.
Jeff Beck, a latent prints examiner with the State Crime Laboratory, testified he had tested fingerprints found on the masking tape holding the inner garage door open at the Haley residence and concluded that the prints belonged to Davis.
Berwin Monroe, Chief of the Firearms and Tool Marks section and an explosives analyst with the Arkansas State Crime Lab, also testified for the prosecution. He performed tests on the fragments of a metal jacket bullet removed from the victim and determined that this bullet was shot from the .44 magnum revolver discovered at Davis’s place of residence. State Crime Laboratory Firearms Examiner, Ronald Andrejack, corroborated Monroe’s findings.
I. Sufficiency of the Evidence
For his first argument on appeal, Davis contends that the evidence was insufficient to support his capital murder conviction. We hold to the contrary.
Based on Burks v. United States, 437 U.S. 1 (1978), where the United States Supreme Court held that the double jeopardy clause precludes a second trial when a conviction in a prior trial was reversed solely for lack of evidence, we have held that preservation of an appellant’s right to freedom from double jeopardy requires a review of sufficiency of the evidence prior to a review of trial errors. Luckach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). On appeal, this court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990); Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).
Davis complains that the evidence was insufficient because it was almost all circumstantial. However, circumstantial evidence can be enough to sustain a conviction:
The law makes no distinction between circumstantial and direct evidence. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). For circumstantial evidence to be sufficient, it must exclude every reasonable hypothesis consistent with innocence. It is up to the jury, however, to determine whether the evidence excludes every hypothesis. Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990). The matter of premeditation and deliberation and intent may all be inferred from the circumstances. An instant of premeditation is enough to sustain a conviction.
Cigainero v. State, 310 Ark. 504, 838 S.W.2d 361 (1992).
Our legislature has defined capital murder as:
A person commits capital murder if: (1) Acting alone or with one (1) or more other persons, he commits or attempts to commit rape, kidnapping, arson, vehicular, piracy, burglary, or escape in the first degree, and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to human life.
Ark. Code Ann. § 5-10-101 (a)(1) (1987)(emphasis added).
Here, the evidence is more than sufficient to prove that Davis murdered Jane Daniel while burglarizing her home. The gun, which ballistics experts determined shot the bullet that killed Mrs. Daniel, was found in Davis’s place of residence. Two of his roommates testified that they had seen him with the gun and noticed that he was very agitated. Further, Davis’s roommate, Renee, testified that on the day Davis returned home with property later identified as coming from the Daniel and Haley houses, he had admitted to her that someone had died during the course of a burglary. In fact when she tried to pick up the gun he was carrying in a towel, he threatened, “it would be her death sentence.”
Property taken from both the Haley and Daniel homes was seen in Davis’s possession by his roommates and various pawnbrokers, in and out of state. For example, Renee Davis testified that she had discovered a green and brown drawstring jewelry bag containing pearls. (This was later identified as the victim’s bag and jewelry). A Kool cigarette butt was left at the crime scene and the appellant was known to smoke this specific brand of cigarettes. Equally telling was the fact that the gun used to kill Jane Daniel was identified as having been stolen from the Haley home and was left by appellant in his former residence.
Also incriminating is the fact that Davis fled the scene and went out of state after the murder. This court has held that an appellant’s flight to avoid arrest can be considered as corroboration of evidence tending to establish his guilt. Ferguson v. State, 298 Ark. 600, 769 S.W.2d 418 (1989). In sum the evidence implicating Davis is overwhelming.
II. Ballistics Expert
For his next argument, Davis submits that the trial court erred in refusing his formal motion asking for funds to employ Donald Nittskoff, a ballistics expert, to assist in the preparation of his defense. He contends that it was fundamentally unfair to be denied this expert’s assistance because the State had to prove that the bullet fragments and casing found at the murder scene were shot from a stolen gun in order to prove him guilty beyond a reasonable doubt. We disagree with Davis’s assertions and that the trial court erred.
Prior to trial, Davis petitioned the trial court to furnish funds to provide for the employment of experts in the fields of ballistics, sociology, and psychiatry, as well as funds for an investigator to assist in the preparation of his defense. The trial court ordered the State to fund the employment of the investigator and denied the requests for the funding of the various experts.
Obviously it is impossible to establish a black-letter rule for determining whether an indigent defendant was denied a fundamental right to an effective defense because of the trial court’s refusal to grant public funds to hire an expert. In psychiatric expert defense cases, we have held that in order for an expert to be appointed, the defendant must make a preliminary showing that his sanity at the time of the offense is to be a significant factor at trial. See Day v. State, 306 Ark. 520, 816 S.W.2d 852 (1991); Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991); Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985). This is understandable as the defendant has a presumption of sanity to overcome in cases where sanity is an issue.
However, in other situations involving experts, where there is no presumption to overcome, this court has not employed the significant factor requirement. Instead, we have provided examples of insufficient grounds for obtaining an expert but have not, thus far, specified what would constitute an adequate basis. Cessor v. State, 282 Ark. 330, 668 S.W.2d 525 (1984); Pickens v. State, 279 Ark. 457, 652 S.W.2d 626 (1983); and Adams v. State, 276 Ark. 18, 631 S.W.2d 828 (1982).
In Cessor we noted that the trial court did not err in denying appellant’s motion for an additional ballistics expert when the defendant did not name the ballistics expert he wished to employ or support his contention by showing what, if anything, an additional ballistics expert could offer on his behalf. Our holding in Cessor suggested that, if a defendant furnished the trial court with these specifics, his request for an expert should be granted.
Here, Davis, in his motion for employment of the firearms expert, named his expert, asked the State to expend some $4,000 in funds for his expert’s employment, and explained to the court that his expert would test and help analyze the bullet fragments and shell casings and would help analyze, interpret, and assist him in understanding the State’s ballistic evidence for all purposes, including effective cross-examination of the State’s two ballistic experts, Berwin Monroe and Ronald Andrejack of the State Crime Lab. Yet, Davis failed to make a showing of an ascertainable need in his motion or at the hearing on the motion. At the hearing, it was apparent to the trial court that counsel had not interviewed or had any discussions with the State’s experts, as the following exchange between counsel and the court reveals:
Court. All right. Well, the Court’s position in regard to these two matters is that — and I gather, Mr. Morris and Mr. Martin, that you-all have not as of yet interviewed or had any discussion with the experts from the State Crime Lab in regard to either one of these issues.
Defense. No, sir, that’s correct, your Honor.
Court. Well, at the state that this is in at this point in time to authorize that to the Court would simply — there simply seems to be a financing of a fishing expedition and I deny the motion.
Davis’s counsel and his investigator subsequently interviewed Monroe and Andrejack, and Davis elected not to renew his motion or to show to the court the defense’s specific need for utilization of a ballistics expert. In that light, we hold that there was no error in the trial court’s decision to deny the request for a ballistics expert. Simply put, the request was premature. To hold otherwise would be to grant license to defense attorneys to obtain experts for their indigent clients without a showing of an ascertainable need.
III. Sociologist Expert
As mentioned previously, prior to trial, Davis’s counsel filed a motion asking the trial court to authorize funds so that he could employ a sociologist to conduct a study to determine whether death-qualified juries are constitutional, but, at a hearing on this motion, the court refused. On appeal, Davis claims that this refusal was a violation of his Sixth and Fourteenth Amendment rights under the United States Constitution.
Clearly, as Davis points out, fundamental fairness entitles indigent defendants to “an adequate opportunity to present their claims fairly within the adversary system.” Ross v. Moffitt, 417 U.S. 600, 612 (1974). However, Davis wanted the funds to pay for the sociologist to pursue a moot point.
This court has on numerous occasions rejected the notion that death-qualified juries are unconstitutional. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993); Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986); Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), cert. denied 466 U.S. 988 (1984). The United States Supreme Court has also rejected this argument, holding that death-qualified juries are constitutional. Lockhart v. McCree, 476 U.S. 162 (1986).
Citing McCree for support, Davis has based his argument that the trial court erred on the premise that the United States Supreme Court in McCree reached its decision that death-qualified juries are constitutional because the sociological studies with which it was presented were deficient. The Court noted, in this regard:
Having identified some of the more serious problems with McCree’s studies, however, we will assume for purposes of this opinion that the studies are both methodologically valid and adequate to establish that ‘death qualification’ in fact produces juries somewhat more conviction prone than non-death qualified juries. We hold, nevertheless, that the constitution does not prohibit the states from death qualifying juries in capital cases.
McCree, 476 U.S. at 173.
It is evident that the United States Supreme Court was not basing its opinion on the presumption that the studies were deficient. The court enumerated the fifteen studies presented, pointed out the problems with each study, and then determined that even if the studies had not been deficient, death-qualified juries would still be deemed constitutional.
Thus, the conclusion cannot be made from Davis’s argument that his proposed sociological study would have unearthed a new result. As a result, this argument is meritless.
IV. Psychiatric Expert
Davis also claims that the trial court erred in not granting funds for a psychiatric expert arguing that, although State Hospital psychiatrists examined him, these examinations were deficient because doctor/patient communications were not privileged.
Davis received a psychiatric evaluation at state expense from the Ozark Guidance Center. The psychiatrist there concluded that there was a lack of psychosis but that David did have attention-deficit hyperactivity disorder residual, which could have contributed to the commission of the offenses.
Subsequently, Davis, joined by the State, filed a motion for psychiatric evaluation at the Arkansas State Hospital, which was granted. The resulting medical report revealed no psychoses but did indicate a psychoactive substance abuse and antisocial personality disorder.
Next, Davis asked the court for funds to employ an independent psychiatric examiner, which the court refused to do. Case law supports the trial court’s decision. This court has held that it is not error for the trial court to refuse to grant an appellant’s motion for a psychiatric examination by a private psychiatrist at state expense. Love v. State, 281 Ark. 379, 664 S.W.2d 457 (1984). Perhaps most persuasive is the recent case of Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992):
With respect to the question of a defendant’s sanity at the time an offense was committed and competency to stand trial, this court has held that the statutorily provided review by a state hospital is sufficient. Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991). As previously stated, the appellant was examined by such a facility and found to have no problems with his sanity. The appellant is in fact arguing that he should have been allowed the “opportunity to have a second opinion.” Again, the Supreme Court did not hold in Ake that a defendant has the constitutional right to choose a psychiatrist of his personal liking or to shop around to find one who will support his insanity defense.
Sanders, 308 Ark. at 183, 824 S.W.2d 353, 356.
In light of these cases, we conclude that the trial court did not err in refusing to approve funding of a private psychiatric evaluation for Davis after approving two previous evaluations.
V. Allegation of Prosecutorial Misconduct
This final issue arises from comments that the prosecuting attorney made to the jury during his closing arguments in the penalty phase of the trial:
I would suggest to you that the murder, the crime that the Defendant did in this case — his actions represent one of civilized society’s worst nightmares, a situation in which in broad light of day, in the middle of the day, in a peaceful neighborhood here in Northwest Arkansas, with a housewife/grandmother coming home to fix her lunch, feeling totally safe in the sanctuary of home that she instead was faced with an armed and bold, calculating and ruthless criminal who saw her cross the street and decided this was a chance for some quick easy money and grabbed up his gun and drove over there and went in specifically looking for her. This wasn’t one of those deals where they were trying to burglarize a house and accidentally stumbled upon somebody that’s in there, or even that they came home, which is another reason to consider the seriousness of the burglary of Mike and Sharon [Haley], What if Sharon had come home? What then?
The trial judge’s control of such remarks during closing arguments is discretionary and will not be reversed in the absence of an abuse of discretion. For example, in Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988), the prosecutor asked the jurors to impose the death penalty and to “tell Ron Wilson he will never commit another murder.” Wilson, 295 Ark. at 690, 751 S.W.2d at 739. The trial court refused to do anything about the remark, and this court agreed with its decision explaining that “The court’s ruling. . .about the remark was discretionary, and in the absence of an abuse of discretion, will not be reversed.” Id. We found no abuse of discretion, having determined that the request was made in the context of urging the jurors to “act as a group in imposing the sentence. In context, it did not suggest that there was evidence from which it could be determined that Wilson would kill again.” Wilson, 295 Ark. at 690, 751 S.W.2d at 739. This analysis applies to the facts at hand, for the prosecutor’s remarks about Davis are similar to the prosecutor’s statements in Wilson.
Other jurisdictions have held that, in the penalty phase of a capital murder case, both parties should be given wide latitude in arguing the matter of punishment. State v. Feltrop, 803 S.W.2d 1 (Mo.banc 1991); State v. McDonald, 661 S.W.2d 497 (Mo.banc 1983). Although this court has never specifically adopted this rule, we have held that counsel should be allowed some leeway with respect to opening and closing remarks. Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981). The trial court has wide latitude of discretion in controlling the arguments of counsel, and its ruling in that regard will not be overturned in the absence of abuse. Cobbs v. State, 292 Ark. 188, 728 S.W.2d 957; Shaw v. State, 271 Ark. 926, 611 S.W.2d 522 (1981). We have also held that improper statements by a prosecutor in his opening argument are cured by an instruction to the jury that remarks of counsel are not evidence and, unless supported by evidence, should be disregarded. Miller v. State, 309 Ark. 117, 827 S.W.2d 149 (1992). Under the circumstances, we hold that the trial court did not abuse its discretion.
Lastly, we undertake a proportionality review of all death penalty cases to insure that the sentence is not imposed in a freakish, capricious, or whimsical manner. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993); Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992), cert. denied, 112 S.Ct. 3043 (1992). Here, the victim, while in her home in the middle of the day, was shot execution-style in the back of the head with a large-caliber weapon. Numerous items were taken from her home. The robbery-murder in this case is similar to the robbery-murders in Johnson v. State, 308 Ark. 1, 823 S.W.2d 800 (1992); Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988); and Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986) that were punished with the death penalty. The death penalty in this case was not freakishly or arbitrarily applied.
Pursuant to Ark. Sup. Ct. R. 4-3(h), the record has been examined, and this review has uncovered no prejudicial errors warranting reversal.
Affirmed.
Glaze, J., concurs. | [
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Jack Holt, Jr., Chief Justice.
This case presents the novel issue of whether an exclusionary clause in a will lacking a residuary clause controls intestate property held by the testatrix. We hold that it does not and reverse the findings of the Probate Court.
On May 7, 1987, the decedent, Ruby Seeman, executed a will distributing her assets to her husband, brother and three surviving children. The will, which does not have a residuary clause, fails to dispose of her residence, but it does explicitly exclude the widow and children of her late son, Marion Seeman, from inheriting any part of her estate: “Whereas, my son, Marion Seeman, has preceded me in death, I direct that no part of my estate shall go to his Widow, Darlene Seeman, or to their children Deborah Seeman Jones and Keith Seeman.”
Mrs. Ruby Seeman died on March 10, 1992, and proof of will documents were filed by the two witnesses. The Executrix for the Estate petitioned the court for authority to sell the decedent’s residence and asked the court to determine to whom the proceeds of the sale should be distributed. After a hearing the Arkansas County Probate Court determined:
That the decedent’s residence was not disposed of by her will, and the decedent’s will did not contain a residuary clause.
As it was the Testatrix’s specific intent to exclude Deborah Seeman Jones and Keith Seeman from sharing in her estate, the will should be construed so that the proceeds from the sale of the house are distributed to the decedent’s three surviving children, Jeanette Seeman Tuthill, Margaret Seeman Schafer and Harold Seeman, Jr.
IT IS, THEREFORE, BY THE COURT, CONSIDERED, ORDERED ADJUDGED AND DECREED that the proceeds from the sale of the decedent’s residence are to be distributed to the decedent’s three surviving children, Jeanette Seeman Tuthill, Margaret Seeman Schafer and Harold Seeman, Jr.
It is from this order that Debra (Seeman Jones) Cook and Keith Seeman bring this appeal.
This is a case of first impression for this court. Clearly, the decedent’s residence was not disposed of through her will; it is also apparent that Mrs. Seeman intended to prevent her two grandchildren from inheriting from her estate. Traditionally, the cardinal principle of will interpretation is that the testator’s intent governs and that intention is to be gathered from the four corners of the instrument, Gifford v. Gifford, 305 Ark. 46, 805 S.W.2d 71 (1991), and if at all possible, we will broaden or enlarge a residuary clause to avoid intestacy. Kidd v. Sparks, 276 Ark. 85, 633 S.W.2d 13 (1982). Yet, here, there is no residuary clause disposing of the balance of the decedent’s estate so intestacy as to the residence is unavoidable. Our statutes provide that any part of the estate “not disposed of by will shall be distributed as provided by law with respect to the estates of intestates.” Ark. Code Ann. § 28-26-103 (1987).
Although there are no Arkansas cases deciding whether the intent to disinherit should affect distribution of intestate property, we have mentioned this issue on one occasion. In Quattlebaum v. Simmons Nat’l Bank, 208 Ark. 66, 184 S.W.2d 911 (1945), a case involving questions of whether certain bequests had lapsed and, if so, whether certain legatees could also share in the residual intestate property, we stated in obiter dictum, “The fact that a person is disinherited by the will does not prevent his sharing, as heir at law or distributee, in property, a legacy or devise of which has failed by lapse.” Quattlebaum, 208 Ark. at 69, 184 S.W.2d at 913 (citation omitted).
In other jurisdictions it is well settled that although the testator’s intent to disinherit is clearly and unambiguously expressed in the will, such exclusionary language will not be given effect as against the distribution of intestate property. Estate of Stroble, 636 P.2d 236 (Kan. 1981); In Re Estate of Stewart, 304 A.2d 361 (N.H. 1973); Kimley v. Whittaker, 306 A.2d 443 (N.J. 1973); In Re Smith’s Estate, 353 S.W.2d 721 (Mo. 1962);In Re Dunn’s Estate, 260 P.2d 964 (Cal. App. 2d 1953). A good reason given for this rule, expressed by the court of appeals of a sister state, is that because the intestate property passes by law rather than by will, the statute and not the testator controls the distribution of this property. Estate of Baxter, 827 P.2d 184, 187 (Okla. App. 1992).
The estate relies on In Re Fellman’s Estate, 99 N.Y.S.2d 259 (1944) in its argument, but we do not find it persuasive. There, the testator devised a gift to his brother which lapsed because he predeceased the testator. The court denied the testator’s sister, who had been left $3,000 in “lieu of all interest in my estate,” a share of the lapsed devise but offered no explanation for its decision.
We hold that although the will excluded the appellants from the estate, it did not alter their entitlement under the laws of intestate succession, provided in Ark. Code Ann. § 28-26-103 (1987). Accordingly, we reverse the decision of the Probate Court. Reversed and remanded. | [
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Steele Hays, Justice.
The State of Arkansas brings this appeal pursuant to Ark. R. Crim. P. 36.10(c). Appellant, Samuel Lee Whale, was charged with two felony offenses: possession of less than twenty-eight grams of cocaine with intent to deliver and conspiracy to deliver cocaine. In a bench trial Whale was convicted of possession and acquitted of conspiracy.
At sentencing, over the specific objection of counsel for the state, the circuit judge sentenced appellant pursuant to the provisions of the Alternative Service Act, Ark. Code Ann. § 16-93-501-10 (Supp. 1991), by suspending imposition of sentence for three years and levying a fine of $2,000.
The state Objected to this disposition of the case on the ground that intent to deliver a Schedule II controlled substance (cocaine) is a Class Y felony and a minimum sentence of ten years was obligatory under Ark. Code Ann. §§ 5-4-301(a)(l)(F) (Supp. 1991) and 5-4-104(e)(l)(F) (Supp. 1991).
In its brief the state points out, as it did in State v. Townsend, CR93-317, decided October 18,1993, that Act 192 of 1993 amends § 5-4-301(a)(l)(F) and § 5-4-104(e)(1)(F) so as to remove language from the two statutes which prohibits trial courts from imposing suspended imposition of sentence or probation on controlled substance offenders. The state further points out that Act 192 does not apply in this case because it does not provide for retroactive application and thus its operation is prospective only. See Redmon v. State, 265 Ark. 774, 580 S.W.2d 945 (1975); Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974).
The state’s contention must be sustained. We addressed this identical issue just two weeks ago in State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993), and, for the reasons there stated, the case is remanded for resentencing.
Reversed and remanded. | [
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Jack Holt, Jr., Chief Justice.
The appellant, Dewayne R. Littlepage, was convicted of possession of methamphetamine with intent to deliver and sentenced to a term of forty years and a fine of $25,000; possession of drug paraphernalia and sentenced to ten years and a $ 10,000 fine; and being a felon in possession of a firearm and sentenced to six years imprisonment and $10,000. Littlepage was also found guilty of possession of marijuana and sentenced to one year imprisonment and fined $1,000. All the sentences are to run consecutively. He raises four issues on appeal, none of which has any merit.
Dewayne R. Littlepage, along with a passenger, Fred McCaslin, was driving a rented, white Cadillac car bearing Texas tags in Malvern, Arkansas. While on patrol, Officer Ron Ball with the Arkansas State Police followed the automobile through a traffic light as the car made a right turn out of the center lane without a turn signal. Officer Ball followed and called for a registration check to determine the ownership of the car and learned that it was a rental car out of Dallas.
As Officer Ball followed the car further, he observed it hit the fog line, the white line on the right-hand side of the road, at least twice from the time it turned onto Main Street. He stopped the car and asked the driver, Littlepage, for his driver’s license, which had expired about two years earlier. Littlepage produced the rental agreement, which revealed that neither Littlepage nor his passenger was the legal driver.
Officer Ball placed Littlepage under arrest for the expired driver’s license, patted him down, and placed him in the back seat of his police car. Officer Ball then walked to the right side of the Cadillac and shined his flashlight inside the car while watching the passenger in the front seat. The officer observed a nylon holster with what appeared to be the butt of a pistol sticking out from under the driver’s seat. He removed the weapon, which was fully loaded, and got the passenger out of the car. Informed by Littlepage that he was on probation for a felony, Officer Ball gave him his Miranda warnings and arrested him for being a felon in possession of a firearm. The officer then looked under the front seat for any additional weapons and found drugs and drug paraphernalia.
Although no drugs were found on Littlepage’s person or under his seat in the car, his fingerprints were found on an Arkansas Bank & Trust envelope containing three plastic bags with a powder residue. Tests by the Crime Lab revealed that the items seized from the car contained cocaine, methamphetamine and marijuana.
Prior to trial, Littlepage filed a motion to suppress the articles found in the car arguing that the search and stop had been pretextual. In support of this motion, Littlepage revealed that Officer Ball had received a phone call earlier in the week from a confidential informant, relating that a white Cadillac with Texas tags might be used in the course of some kind of drug activity. Littlepage also emphasized that, in Officer Ball’s reports on the arrest, he stated that one reason he stopped Littlepage was because he hit the fog line at least twice and had crossed the solid white line. The court denied the motion to suppress.
I. Sufficiency of the Evidence
For his first argument on appeal, Littlepage contends that the evidence was insufficient to prove that he was in constructive possession of the drugs, drug paraphernalia, and two guns discovered in the vehicle. We disagree.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). On appeal, this court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990); Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).
Evidence of Littlepage’s possession of drugs, drug paraphernalia, and weapons is more than sufficient. Officer Ball testified at trial that during the search incident to Littlepage’s arrest for the expired driver’s license, he noticed in plain view a black nylon-style holster, that appeared to contain a pistol, sticking out from under the driver’s seat. After opening the driver’s door, he examined the pistol and found it contained a fully loaded clip. In continuing his search of the car, ostensibly for other weapons, Officer Ball discovered marijuana and a Liquid Wrench can. Noticing that the bottom of the Liquid Wrench can unscrewed, he opened it and found four Ziplock bags containing white powder, two more Ziplock bags with white powder, one Ziplock bag with a hand rolled cigarette, three Ziplock bags containing vegetable material, one vial containing a liquid, four “rocks,” and four syringes.
Thereafter, an inventory search of the car was conducted, and the police found a loaded .45-caliber weapon and a fake battery with a storage compartment in the trunk. Another bag containing white powder was found next to the gas cap. Police also found a pharmacy bag containing some syringes in the console next to the driver’s seat; as well, a bank envelope holding three Baggies covered in white powder residue was also found. Littlepage’s fingerprints matched those found on the envelope.
Jerry Buck, a chemist from the State Crime Lab, testified that the white powdery substance found in the many containers in the vehicle was cocaine. Also found were several pill bottles which contained methamphetamine, codeine, and valium. Marijuana was identified, as well.
On appeal, Littlepage submits that the evidence at trial was insufficient to connect him with ownership of the drugs, drug paraphernalia, and guns. We disagree.
In order to prove a defendant is in possession of a controlled substance, constructive possession is sufficient. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Neither are exclusive nor actual, physical possession of a controlled substance necessary to sustain a charge. Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976). Constructive possession can be implied when it is in the joint control of the accused and another. Osborne, supra. However, joint occupancy alone is not sufficient to establish possession or joint possession. There must be some additional factor linking the accused to the contraband. Id. In Plotts v. State, 297 Ark. 66, 729 S.W.2d 793 (1988), we enumerated factors that sufficiently link an accused to contraband found in a car jointly occupied by more than one person, including the contraband’s being (1) in plain view; (2) on the defendant’s person or with his personal effects; (3) found on the same side of the car seat as the defendant or in immediate proximity to him; or that the accused (4) owned the vehicle in question or exercised dominion and control over it; and (5) acted suspiciously before or during arrest. Plotts, supra; See also Bailey v. State, 307 Ark. 448, 821 S.W.2d 28 (1991)
Applying these elements to the facts at hand, it is clear that Littlepage was in constructive possession of the drugs, drug paraphernalia, and firearms. First of all, the illicit articles were found in the immediate proximity of its driver, Littlepage, at the time of the arrest. Secondly, Littlepage exercised dominion and control of the car as its driver, his fingerprints were found on an envelope containing cocaine residue, and the loaded pistol was found underneath his seat. Drug paraphernalia, specifically syringes, was found in the console next to him. Taken together, these facts specifically link him to the contraband and prove that he was in constructive possession of the drugs, paraphernalia and firearms.
In sum, we have no hesitancy in holding that the evidence was sufficient to convict on all charges.
II. Legality of Search
In a motion to suppress the results of the search of the car, Littlepage contended that the officer stopped him because of the confidential informant’s tip and not because he had violated a traffic law; therefore, he claims, the stop was pretextual, rendering the search and its results invalid. Since Littlepage has failed to show that he had an expectation of privacy in the rental car, we do not reach the issue of the constitutionality of the search.
After hearing the testimony of Officer Ball, the trial court denied the motion to suppress, explaining:
The motion is denied. There was probable cause for the stop and the arrest. The information received by the officer from the confidential informant had nothing to do with the stop and nothing to do with the arrest. It was based on an illegal turn. This was standard procedure for the State Police. This was a car from out of state, one with which the officer was not familiar so he called in for an identification on that, which he got. The driver’s license of the defendant was expired and there was a gun in plain sight. The officer was aware at this time that Littlepage was on probation. That constitutes a violation. A limited search was then done incident to arrest. All of those things were valid and allowable under the Fourth Amendment. An inventory search was then done at that time after the officer knew that the vehicle was going to be taken into custody. All of the regular procedures were followed, as practiced by the State Police. These items obtained in the search are therefore admissible into evidence if they are relevant to the case.
The Fourth Amendment of the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers and effects and against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The rights secured by the Fourth Amendment are personal in nature. Rakas v. Illinois, 439 U.S. 128 (1978). Accordingly, before an appellant can challenge a search on Fourth Amendment grounds, he must have standing. Whether an appellant has standing depends upon whether he manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. See United States v. Erwin, 875 F.2d 268 (10th Cir. 1989).
Here, Officer Ball admitted that he received information a few days prior to the arrest that there was a white Cadillac with a Texas license plate whose occupant, Littlepage, was connected with drugs and might be coming to the Malvern area. Nevertheless, Officer Ball stated under oath that he had stopped Littlepage on the night in question because of the traffic violation and not as a result of the informant’s tip.
In response, the State argues that Littlepage did not have an expectation of privacy in the Cadillac because it was not his car, and, therefore, he could not have a Fourth Amendment right to challenge the search. This argument is correct.
In order to assert his Fourth Amendment rights, Littlepage must at least show that he gained possession from the owner or someone with authority to grant possession. See State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992). In Barter, the appellant was stopped while driving a rental car contracted to another individual. When Barter failed to show that he lawfully possessed the car, we held that he had failed to establish a legitimate expectation of privacy in the car searched by the police.
Similarly, in Fernandez v. State, 303 Ark. 230, 233, 795 S.W.2d 52 (1990), we said that the appellant had failed to show that he had a legitimate expectation of privacy in a car when he could not show that either he or his passenger owned or lawfully possessed the car in which the search was conducted.
In this matter, Littlepage bore the burden of proving not only that the search of the car he drove was illegal, but also that.he had a legitimate expectation of privacy in that car. Fernandez, supra, citing Rawlings v. Kentucky, 448 U.S. 98 (1980). The proof revealed that the car Littlepage was driving was rented to Rebecca Jones, who was not present at the time of the arrest. Ms. Jones was the only authorized driver in the rental agreement. Littlepage claimed that Ms. Jones had rented the car for him in Dallas for his use when his own car had broken down, but there was no showing that this assertion had any validity. Besides, the rental agreement authorizing Ms. Jones to drive the car had expired two days prior to Littlepage’s traffic stop and arrest. Clearly, Littlepage failed to establish his expectation of privacy in the searched automobile. Accordingly, we conclude that Littlepage had no standing to challenge the officer’s search as unconstitutional. Because Littlepage had no expectation of privacy in the car, the issue of whether or not this was a pretextual search is of no moment.
III. Severance of Offenses
Prior to trial, Littlepage requested that the offenses be severed on the grounds that to try all of them together would be confusing to the jury and that evidence of some offenses, particularly the felon in possession of a firearm count, would be used as evidence against him on other counts. The trial court denied the motion but agreed, at the State’s suggestion, to bifurcate the firearm possession charge, keeping evidence of the prior conviction from the jury until the sentencing phase. Nevertheless, Littlepage claims that to refuse to sever completely the felon in possession of a firearm charge from the other charges was error.
Littlepage’s argument is based on the fact that, even though the felon in possession charge was not mentioned to the jury during the guilt/innocence phase, the jury still heard evidence concerning the two weapons found in the car along with the drugs.
This argument is meritless. Denial of a motion to sever is proper if the offenses are part of a single scheme or plan or if the same body of evidence would be offered to prove each offense. Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992). Clearly, the judge sought to protect Littlepage from prejudice by bifurcating the proceedings. This adequately protected him.
IV. Alleged Prosecutoridl Misconduct
For his last argument, Littlepage claims that some of the prosecutor’s remarks during closing argument require that the conviction be reversed. Littlepage’s attorney did make objections to the prosecutor’s remarks, but he neither asked for an admonition to the jury nor for a mistrial. Under the circumstances, Littlepage has no grounds to complain on this issue.
The basis of this issue is the prosecutor’s closing argument in which he stated, in pertinent part:
Prosecutor: Everything in this case points to Dewayne Littlepage’s having been a drug dealer. I have no doubt that Dewayne Littlepage also used some of those drugs but that does not absolve him of the fact that he is also a drug dealer. They had this can for the concealment, they had the battery for concealment. If you want Malvern, Arkansas to be a cruising place for all the drug dealers from Hot Springs, Little Rock and Pine Bluff, all you have to do -
Defense - Your Honor, I object to that. I don’t think the statement is based on any evidence that’s in and he’s trying to inflame the jury.
Court: Ladies and gentlemen, the only thing I can tell you is that if either attorney says anything to you having no real basis in the evidence, disregard it.
The prosecutor then stated again that “[i]f you want Malvern. . .to be the cruising place for the drug dealers from Hot Springs, Little Rock and Pine Bluff, just give him a little tap on the wrist, about 10 years.” Littlepage failed to object to this second reference to out-of-town drug dealers.
Littlepage also objected when the prosecutor said, “What did Ron Ball tell you? He said that two or three days before he had received information about a white Cadillac being driven by somebody named Littlepage.” At that point, the defense asked for a mistrial stating that this was information that had not been presented to the jury during the course of the trial. The trial court disagreed but again admonished the jury that “anything that either attorney says which you find has no basis in the evidence, you should disregard if it’s during their opening statement or their argument.”
As for the first statement that allegedly constituted prosecutorial misconduct, it was harmless, and Littlepage failed to ask for either an admonition or a mistrial when he objected. The court, in response to his objection, reminded the jury that remarks of counsel are not evidence and unless supported by evidence should be disregarded. This admonition cured any possible error. See Miller v. State, 309 Ark. 117, 827 S.W.2d 149 (1992). Besides, this court has said that counsel is to be given some leeway in opening and closing remarks, and counsel are free to argue every plausible inference which can be drawn from the testimony. Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981). The trial court has a wide latitude of discretion in controlling the arguments of counsel, and its rulings in this regard are not overturned in the absence of clear abuse. Cobbs v. State, 292 Ark. 188, 728 S.W.2d 957 (1987). The test on appellate review is whether there was a manifest abuse of discretion by the judge in failing to properly act on an objection to improper remarks. Shaw v. State, 271 Ark. 926, 611 S.W.2d 522 (1981).
As for the second instance of alleged prosecutorial misconduct, Littlepage did actually ask for a mistrial. Yet, a mistrial is an extreme remedy which should be granted only where an error is so prejudicial that justice cannot be served by continuation of the trial. Combs v. State, 270 Ark. 496, 606 S.W.2d 61 (1980). Although the prosecutor’s statement in this regard, i.e. that Ron Ball had received information prior to the arrest that Littlepage was coming to Arkansas, was outside the evidence presented to the jury during the trial, the judge’s admonition cured any possible error.
Accordingly, Littlepage’s conviction is affirmed. | [
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Per Curiam.
Appellant’s attorney Robert L. Scull, III is directed to appear before this court at 9:00 a.m. on September 7, 1993, to show cause why he should not be held in contempt of court for failure to file a brief in the case. | [
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