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Donald L. Corbin, Justice.
Appellant Lance R. Craven filed a negligence suit in the Sebastian County Circuit Court against Appellees Fulton Sanitation Service, Inc., d/b/a Sun Ray Services, Inc., d/b/a USA Waste of Arkansas, Inc. (“Fulton”), and Kendale Lloyd Toney. The trial court granted summary judgment to Appellees on the ground that an adverse decision from the Workers’ Compensation Commission barred Appellant’s suit under the doctrine of collateral estoppel. Appellant contends that the trial court’s ruling is erroneous because it violates his constitutional right to a trial by jury and his right to bring suit against a third party under Ark. Code Ann. § ll-9-410(a)(l)(A) (Repl. 2002). The Arkansas Court of Appeals certified this case to us as presenting an issue of first impression as to whether a judgment by an administrative agency may be given preclusive effect in such cases where the litigant has the right to a jury trial. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. l-2(b) (1). We reverse the order of summary judgment and remand for further proceedings in this matter.
The relevant facts are not in dispute, and the parties agree that this appeal presents only questions of law, which this court reviews de novo. See Brown v. Pine Bluff Nursing Home, 359 Ark. 471, 199 S.W.3d 45 (2004); Holt v. McCastlain, 357 Ark. 455, 182 S.W.3d 112 (2004). Suffice it to say that Appellant was involved in an automobile accident on March 10, 1999, wherein the vehicle he was driving was struck from behind by one of Fulton’s trucks that was driven by Toney. Because Appellant was on the job at the time of the accident, he filed a claim against his employer, Cockram Concrete, alleging that he sustained compensable injuries to his neck, upper back, and lower back. His employer accepted the compensability of his neck and upper-back injuries; however, it questioned whether his lower-back injuries had been caused by the accident. The Commission’s Administrative Law Judge (ALJ) concluded that Appellant had failed to prove a causal relationship between his lower-back injuries and the automobile accident. The ALJ’s decision was affirmed by the Commission. Appellant appealed to the court of appeals; however, he abandoned the appeal when he failed to lodge the record with the appellate court.
Appellant filed the instant suit against Appellees in August 2001, seeking damages for his lower-back injuries. Appellees moved for summary judgment on the ground that the ALJ’s determination of the issue of causation precluded Appellant from relitigating it. Appellant argued that giving preclusive effect to the Commission’s judgment on the issue of causation would deprive him of his constitutional right to have that factual issue determined by a jury. He also argued that section 1 l-9-410(a)(1)(A) specifically provides that the making of a claim for workers’ compensation shall not affect the employee’s right to maintain an action in court against a third party. The trial court granted summary judgment, and Appellant appealed.
The sole issue on appeal is whether the doctrine of res judicata may be applied to a final judgment of the Workers’ Compensation Commission so as to bar the employee’s constitutional right to a jury trial against a third-party tortfeasor. The concept of the doctrine of res judicata has two facets: claim preclusion and issue preclusion. See Barclay v. Waters, 357 Ark. 386, 182 S.W.3d 91 (2004); Searcy v. Davenport, 352 Ark. 307, 100 S.W.3d 711 (2003); John Cheeseman Trucking, Inc. v. Pinson, 313 Ark. 632, 855 S.W.2d 941 (1993). Claim preclusion forecloses further litigation on a cause of action, while issue preclusion forecloses further litigation in connection with a certain issue. Id. Issue preclusion is the type of res judicata involved in this case.
Issue preclusion, better known in this state as collateral estoppel, bars relitigation of issues of law or fact previously litigated, provided that the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question and that the issue was essential to the judgment. Beaver v. John Q. Hammons Hotels, 355 Ark. 359, 138 S.W.3d 664 (2003); Zinger v. Terrell, 336 Ark. 423, 985 S.W.2d 737 (1999). To apply collateral estoppel, the following elements must be present: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) the issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. Id. Collateral estoppel may be asserted by a stranger to the first judgment, but the party against whom it is asserted must have been a party to the earlier action and must have had a full and fair opportunity to litigate the issue in that first proceeding. State Office of Child Support Enforcem’t v. Willis, 347 Ark. 6, 59 S.W.3d 438 (2001); Coleman’s Serv. Ctr., Inc. v. FDIC, 55 Ark. App. 275, 935 S.W.2d 289 (1996).
Ordinarily, the doctrine of res judicata, either in the form of claim preclusion or issue preclusion, is applied based on a final judgment issued by a court. Flowever, the doctrine has been applied in this state to issues determined by final judgment or decree of an administrative agency. Significantly, both this court and the court of appeals have held that the doctrine is applicable to decisions of the Workers’ Compensation Commission. See Beaver, 355 Ark. 359, 138 S.W.3d 664; Mohawk Tire & Rubber Co. v. Brider, 259 Ark. 728, 536 S.W.2d 126 (1976); Andrews v. Gross & Janes Tie Co., 214 Ark. 210, 216 S.W.2d 386 (1948); Perry v. Leisure Lodges, Inc., 19 Ark. App. 143, 718 S.W.2d 114 (1986); Tuberville v. International Paper Co., 18 Ark. App. 210, 711 S.W.2d 840 (1986); Gwin v. R.D. Hall Tank Co., 10 Ark. App. 12, 660 S.W.2d 947 (1983). In Andrews, this court explained:
While the compensation commission is not a court, it exercises gwijji-judicial functions in its investigations and determinations and its awards are in the nature of judgments. The doctrine of res judicata which forbids the reopening of matters once judicially determined by competent authority applies as well to decisions of a commission or board administering workmen’s compensation acts as to judg merits of courts having general judicial powers. 50 C.J.S., Judgments, § 690. The rule generally followed is stated in 71 C.J., p. 1195, as follows: “The award in compensation proceedings has the force and effect of the verdict of a jury. Being in the nature of a judgment, it finally and conclusively determines the rights of the parties under the workmen’s compensation acts unless set aside in a proper manner, and is as binding as a judgment of a court and entitled to the same faith and credit as such a judgment.” See, also, Anno. 122 A.L.R. 550.
214 Ark. at 214-15, 216 S.W.2d at 388.
None of the foregoing cases involved the issue of the constitutional right to a jury trial in civil cases. Notwithstanding, Appellees contend that the statement in Andrews that the award in compensation proceedings has the force and effect of a jury verdict implies that the issue has been decided. Appellees also point to the statement by the court of appeals that application of the doctrine of res judicata to administrative actions “is especially appropriate to bar new proceedings when an agency has conducted a trial-type hearing, made findings, and applied the law.” Brandon v. Arkansas Western Gas Co., 76 Ark. App. 201, 210-11, 61 S.W.3d 193, 200 (2001) (citing Fuchs v. Moore, 589 N.W.2d 902 (N.D. 1999)). We do not view these holdings as being dispositive of the issue at hand, and we conclude that the doctrine may not be applied to bar an employee from having a jury determine factual issues in an action at law against a third party.
Article 2, Section 7, of the Arkansas Constitution provides in pertinent part that “[t]he right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy[.]” The right to jury trial under this provision is a fundamental right. Walker v. First Commercial Bank, N.A., 317 Ark. 617, 880 S.W.2d 316 (1994); Bussey v. Bank of Malvern, 270 Ark. 37, 603 S.W.2d 426 (Ark. App. 1980). It extends to all cases that were triable by a jury at common law. Hopper v. Garner, 328 Ark. 516, 944 S.W.2d 540 (1997); McClanahan v. Gibson, 296 Ark. 304, 756 S.W.2d 889 (1988). In other words, the constitutional right to trial by jury extends only to the trial of issues of fact in civil and criminal causes. Jones v. Reed, 267 Ark. 237, 590 S.W.2d 6 (1979). Tort cases, such as the negligence suit present in this case, are civil cases that were triable by juries at common law. See McClanahan, 296 Ark. 304, 756 S.W.2d 889.
Under our current Workers’ Compensation Act, an employee gives up the right to a jury trial in an action against the employer for unintentional work-related injuries. That right was vanquished with the passage of Amendment 26 to the Arkansas Constitution, now found in Article 5, Section 32, which gave the legislature the power to provide the means, method, and forum for adjudicating claims arising under the workers’ compensation law. See Grimmett v. Digby, 267 Ark. 192, 589 S.W.2d 579 (1979) (superseded by statute on other grounds). In exchange for giving up that right, the employee gains a certain and quick resolution of his or her claim against the employer. Arkansas Code Annotated § 11-9-101 (b) (Repl. 2002) provides that one of the primary purposes of workers’ compensation laws is “to pay timely temporary and permanent disability benefits to all legitimately injured workers who suffer an injury or disease arising out of and in the course of their employment^]”
The rights and remedies granted to employees under the Act are exclusive of all other rights and remedies of the employee from the employer. Ark. Code Ann. § ll-9-105(a) (Repl. 2002). The reason for such exclusivity is found in the general purpose behind our workers’ compensation laws, which was to change the common law by shifting the burden of all work-related injuries from individual employers and employees to the consuming public, with the concept of fault being virtually immaterial. Brown v. Finney, 326 Ark. 691, 932 S.W.2d 769 (1996); Simmons First Nat’l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985). With the passage of such statutes, employers gave up the common-law defenses of contributory negligence, fellow servant, and assumption of the risk, while employees gave up the chance of recovering unlimited damages in tort actions in return for certain recovery in all work-related cases. Id. Thus, it has been held that the exclusivity of our workers’ compensation laws favors both the employer and the employee. Brown, 326 Ark. 691, 932 S.W.2d 769.
In contrast, an employee does not forfeit any right to unlimited damages in a civil trial against a third party, regardless of whether the employee has previously made a claim for compen sation against the employer. On the contrary, section 11 — 9— 410(a)(1)(A) specifically provides:
The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his or her dependents, to make a claim or maintain an action in court against any third party for the injury, but the employer or the employer’s carrier shall be entitled to reasonable notice and opportunity to join in the action. [Emphasis added.]
There is no dispute that Appellees in the case at bar are third parties under the Act. Accordingly, Appellant has a right to maintain an action against them in court, despite the fact that he has already pursued a compensation claim against his employer.
Construing section ll-9-410(a)(l)(A) along with the constitutional right to a jury trial in civil cases and considering the purpose of the Workers’ Compensation Act, we conclude that the trial court erred in giving preclusive effect to the Commission’s judgment on the issue of causation. Although this issue is one of first impression in Arkansas, we find guidance in a similar case from Minnesota.
In Heine v. Simon, 674 N.W.2d 411 (Minn. Ct. App. 2004), the Minnesota Court of Appeals held that collateral estoppel did not bar the plaintiffs claim against a third-party tortfeasor where the workers’ compensation determination concluded that the plaintiffs injuries were not caused by the accident with the defendant. There, as in this state, it had previously been held that the principles of res judicata apply to workers’ compensation decisions in certain instances. However, the Heine court concluded that collateral estoppel did not bar the employee’s civil suit because the procedures available in the workers’ compensation proceedings were markedly different from those available in a civil suit. As such, the court held that the plaintiff was deprived of the full and fair opportunity to litigate the issue of causation before the agency. The court explained:
Workers’ compensation hearings are not bound by common law or statutory rules of evidence, nor are the rules of pleading or procedure applicable. Reliable hearsay is admissible. Additionally, there is no right to a jury trial on a workers’ compensation claim. Based on the nature of the proceedings and the record before us, we conclude that the workers’ compensation hearing did not provide a full and fair opportunity to be heard for the purpose of applying the doctrine of collateral estoppel in Heine’s negligence action against a third-party tortfeasor.
Id. at 423 (citations omitted).
Proceedings before our Workers’ Compensation Commission and its hearing officers are informal in that the Commission is not bound by technical or statutory rules of evidence or by technical or formal rules of procedure in conducting a hearing. Ark. Code Ann. § 11-9-705 (a) (Repl. 2002). More importantly, the proceedings before the Commission do not provide for the right to have a jury determine factual issues. Given the nature of these proceedings, especially the lack of a jury trial, we conclude that to give the Commission’s decision preclusive effect would deprive Appellant of a full and fair opportunity to litigate the issue. Article 2, Section 7, of our constitution makes clear that the right to a jury trial in all cases at law, i.e., civil and criminal cases, is inviolate unless it is waived by the litigant. It is due to the constitutional stature of this right, along with the right to redress of wrongs found in Article 2, Section 13, that made it necessary to amend our constitution before the legislature could establish our workers’ compensation laws, as those laws effectively strip employees of these rights in claims against their employers. Grimmett, 267 Ark. 192, 589 S.W.2d 579.
Moreover, section ll-9-410(a)(l)(A) of our Workers’ Compensation Act specifically provides that an employee’s pursuit of a claim for compensation against his or her employer shall not effect the employee’s right to maintain an action in court against a third-party tortfeasor. While an employee gives up the right to a jury trial against the employer, the employee does not give up that right against a third party. Were we to hold that the Commission’s determination precluded Appellant’s suit against Appellees, we would effectively be requiring him to choose between enforcing his rights under the workers’ compensation laws and his constitutional right to a jury trial against the third-party tortfeasor. The Workers’ Compensation Act does not require Appellant to make such a choice, and nor do we.
In sum, under our state constitution and the Workers’ Compensation Act, an employee injured by the negligence of a third party is entitled to have a jury determine the issue of causation, as well as any other factual issues. See also Ark. Code Ann. § 16-64-103(b) (1987) (providing that issues of fact in an action at law for the recovery of money shall be tried by a jury unless a jury trial is waived). We therefore conclude that the trial court erred in giving preclusive effect to the Commission’s determination on the issue of causation, and we reverse the order of summary judgment and remand for further proceedings.
Reversed and remanded.
Imber, J., concurs.
Although Appellant initially sought damages for the injuries to his neck and upper back, in addition to those in his lower back, he later withdrew that claim.
However, our workers’ compensation laws do not preclude an employee from filing a tort action against an employer for the infliction of intentional or willful injuries. See, e.g., Gourley v. Crossett Pub. Sch., 333 Ark. 178, 968 S.W.2d 56 (1998); Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993). | [
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Betty C. Dickey, Justice.
This is a usury case arising from a loan agreement between Shawn Hickman and Chester J. Courtney. Ms. Hickman sued Mr. Courtney in the Ashley County Circuit Court, alleging that the parties’ loan agreement imposed a usurious rate of interest and requesting appropriate relief. On appeal, Ms. Hickman argues that the trial court’s determination that Mr. Courtney lacked the requisite intent to commit usury is clearly erroneous. We agree, and reverse and remand.
Facts
Mr. Courtney had been a Certified Public Accountant for over forty years and, anticipating retirement, decided in 2002 to sell his accounting firm to Ms. Hickman, his employee of three years. Ms. Hickman initially agreed to buy the firm outright for $253,000, but was unable to obtain financing for that amount. The parties then agreed that Ms. Hickman would make a down payment of $40,000 and pay the balance in monthly installments. Mr. Courtney’s lawyer prepared a loan agreement reflecting this arrangement. The agreement specifically provided that, after Ms. Hickman’s down payment had been made, “the remaining balance shall be paid in 120 monthly installments, with each such payment to be made on or before the 10th day of each month beginning on February 10, 2002. The amount of each installment shall be calculated annually by amortizing the balance of the purchase price over ten years at the then prevailing commercial loan rate. The parties agree that the payment shall be $2,640.90 for the first twenty-four (24) months.”
Ms. Hickman made full payments pursuant to the agreement until September of 2002, and then, per the parties’ agreement, made reduced payments of $1,800 from5 October of that year through February of 2003. Ms. Hickman first discovered that she was being charged a usurious rate of interest in January of 2003, when her bank, as part of a loan renewal process, requested that she provide it with an amortization schedule for her loan with Mr. Courtney and a 1099 tax form reflecting the interest she had paid Mr. Courtney during the year. These documents indicated that Ms. Hickman was paying an annual percentage rate of 8.5% on her loan with Mr. Courtney. At the time the agreement was made, the maximum interest rate allowed under Arkansas law was 6.25%. After learning about these rates, Ms. Hickman sued Mr. Courtney, claiming that the contract was usurious and asking the trial court to reform the contract to void the usurious unpaid interest and award her $38,325.24, an amount equal to twice the interest she had already paid on the loan.
The trial court ruled in favor of Mr. Courtney, explaining that Ms. Hickman’s claim had failed because she had not met her burden of clear and convincing proof with respect to Mr. Court ney’s intent to violate the law. The trial court observed that the agreement did not expressly state a rate of interest to be . charged but said that it interpreted the phrase “at the prevailing commercial rate” to mean any rate of interest that does not exceed the maximum lawful rate. The trial court acknowledged that the interest rate reflected in the amortization schedule was a clearly usurious 8.5%, but said that it did not view that rate as controlling, because the evidence did not establish that Mr. Courtney had either created the amortization schedule or that the schedule was consistent with his intent. The trial court reformed the contract to specify that the rate of interest will not exceed the maximum lawful rate and ordered that any interest already paid in excess of this rate be applied to future unpaid interest.
Ms. Hickman appealed, arguing that the trial court’s determination that Mr. Courtney lacked the requisite intent to commit üsury was clearly erroneous. In response, Mr. Courtney argues that Arkansas’ usury provision is either unconstitutional or invalid because the provision bases the maximum lawful rate of interest on the Federal Reserve Discount Rate, and the Federal Reserve Discount Rate no longer exists.
Standard of Review
While a trial court’s conclusions of law are reviewed de novo, we recognize the lower court’s superior position to assess the facts and will not reverse its factual findings unless they are clearly erroneous. A finding of fact made by a trial court sitting in equity is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been made. Carter v. Four Seasons Funding Corp., 351 Ark. 637, 97 S.W.3d 387 (2003). When the intent to commit usury is not apparent on the face of the challenged document, the question of whether a lender possessed the requisite intent is for the finder-of-fact to decide. Id.
Usury
Arkansas’ usury law is set out in our Constitution: “The maximum lawful rate of interest on any contract... shall not exceed five percent (5%) per annum above the Federal Reserve Discount Rate at the time of the contract.” Ark. Const. Art. 19, § 13(a)(i) (1987). Usurious contracts are void as to the amount of unpaid interest in excess of the maximum lawful rate, and a borrower may recover twice the amount of usurious interest already paid on the loan. Ark. Const. Art. 19, § 13(a)(ii). For a contract to be usurious, it must be so at the time it is entered into. Smith v. MRCC Partnership, 302 Ark. 547, 792 S.W.2d 301 (1990). The Federal Discount Rate at the time this contract was entered into was 1.25%, so the maximum lawful rate of interest for Ms. Hickman’s and Mr. Courtney’s loan agreement was 6.25%.
Because the “penalty for a usurious transaction is indeed heavy,” the plaintiff has the burden of proving by clear and convincing evidence that the lender possessed the intent to commit usury. Haley v. Greenhaw, 235 Ark. 481, 360 S.W.2d 753 (1962). Usury will not be presumed, imputed, or inferred where an opposite result can be fairly and reasonably reached. McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991). The intent that is required, however, is not an intent to violate the law, but merely the intent to charge a rate of interest that proves to be usurious. Carter v. Four Seasons Funding Corp., 351 Ark. 637, 97 S.W.3d 387 (2003). In ascertaining intent, the fact-finder must look beyond the four corners, of the challenged agreement “to determine, considering all of the attendant facts and circumstances, if the contract is usurious in effect.” Id.
In this case, Ms. Hickman had the burden of proving by clear and convincing evidence that Mr. Courtney intended to charge an interest rate in excess of 6.25%, the maximum lawful rate at the time this agreement was made. The trial court did not believe that the 8.5% rate in the amortization schedule was reflective of Mr. Courtney’s intent, because the evidence did not prove that the schedule was either created or approved of by Mr. Courtney. The amortization schedule was not, however, the only evidence to indicate that Mr. Courtney was aware that he was charging an 8.5% rate of interest. Mr. Courtney testified on more than one occasion that he intended the interest rate on his loan with Ms. Hickman to exceed the 7% rate that he was paying on another note, saying that Ms. Hickman “agreed to pay a percent and a half more than [the 7%] I was paying at the bank,” and that this was “the only reason I financed.” Mr. Courtney’s wife testified to the same effect.
Ms. Hickman also introduced into evidence a tax return and a 1099 tax form from the year 2002, in which Mr. Courtney represented that he was receiving 8.5% in interest on his loan with Ms. Hickman. An 8.5% rate of interest on this loan would yield an annual total of $16,191, the exact amount that Mr. Courtney reported on his tax return as income paid by Ms. Hickman. On the 1099 form, Mr. Courtney made handwritten corrections amending the amount of interest income to reflect this same amount. These documents were introduced at trial without objection from Mr. Courtney. The way a lender treats a transaction on his tax returns can be an important indicator of whether the lender has the intent to commit usury. See Carter, 351 Ark. at 653; Haley v. Greenhaw, supra, 235 Ark. 481. Mr. Courtney was a C.P.A. with over forty years of experience, holding advanced degrees in both business and accounting. At the time of the trial, he was working as a tax return preparer. Mr. Courtney’s professional experience with tax returns and interest rates suggests that the representations he made on his tax forms were accurate reflections of his intent.
The intent to commit usury is clearly evidenced by these tax forms as well as by Mr. Courtney’s own testimony that he intended to charge 8.5% in interest on Ms. Hickman’s loan. This is especially true in light of Mr. Courtney’s professional background and experience. In fact, the only evidence that Mr. Courtney might not have intended to charge 8.5% is the agreement’s somewhat ambiguous phrase “at the then prevailing commercial rate.” While this language may not, in and of itself, evidence an intent to commit usury, the trial court is obligated to look beyond the four comers of the document at all the attendant circumstances to determine if the contract is usurious in effect. Carter v. Four Seasons Funding Corp., 351 Ark. at 653. The circumstances clearly indicate that Mr. Courtney intended to charge a rate of interest that proved to be usurious. The trial court’s holding to the contrary is clearly erroneous, and we remand for findings consistent with this opinion.
Constitutionality of Arkansas’s Usury Provision
Mr. Courtney argues that Arkansas’ usury provision is either unconstitutional or invalid because the provision is based on the Federal Discount Rate, and the Federal Reserve Discount Rate no longer exists. Mr. Courtney’s argument has no bearing on the outcome of this case, however, because a Federal Reserve Discount Rate was still in existence at the time that the loan agreement was made. See Hartford Fire Insurance Company v. Sauer, 358 Ark. 89, 186 S.W.3d 229 n.2 (2004).
At any rate, this court will not address the merits of this argument on appeal, because the issue was not ruled on by the court below. This court has repeatedly held that the “[fjailure to obtain a ruling, even with respect to a constitutional question, precludes the issue on appeal.” State Farm Fire & Casualty Company v. Ledbetter, 355 Ark. 28, 129 S.W.3d 815 (2003); Technical Services of Arkansas, Inc. v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995). In this case, the trial court’s order did not include a ruling on the constitutionality of Article 19, Section 13, and Mr. Courtney did not seek to set aside the order to obtain a ruling on the issue. See Doe v. Baum, 348 Ark. 259, 72 S.W.3d 476 (2002). Because there was no ruling below, this court is proceduraüy barred from addressing the issue on appeal.
Reversed and remanded.
While the trial court’s order states that Ms. Hickman made reduced payments in the amount of $1,600, it is clear from the record that the actual amount was $1,800.
Ms. Hickman also asserts that the trial court’s holding that Mr. Courtney lacked the intent to commit usury was a mistake of law. Whether the requisite intent exists, however, is a finding of fact and not a legal conclusion. Carter v. Four Seasons Funding Corp., 351 Ark. 637, 97 S.W.3d 387 (2003). Ms. Hickman does not argue that the judge misinterpreted or misapplied the law, but that the court’s ultimate conclusion was wrong because the evidence shows that Mr. Courtney did intend to charge a usurious rate of interest. This is an argument that the court’s finding was clearly erroneous, not that it was a mistake of law. | [
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Per Curiam.
Stark Ligón, Executive Director of the Arkansas Supreme Court Committee on Professional Conduct, has filed a complaint for disbarment against the defendant, Reginald Shelton McCullough. The complaint lists twenty-three violations that constitute grounds for disbarment. Defendant, representing himself, filed a response to the complaint.
Pursuant to Section 13A of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, a special judge shall be appointed to preside over the disbarment proceedings in the case herein. After hearing all evidence relevant to the alleged misconduct, the judge shall make findings of fact, conclusions of law, and recommendations of an appropriate sanction, and shall file them, along with a transcript and the record of the proceedings, with the clerk of the supreme court.
We hereby appoint the Honorable John Cole as special master to hear this matter and provide the court with findings of fact, conclusions of law, and recommendations of an appropriate sanction. Upon receipt of the master’s findings, we will render a decision in this matter. | [
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Per Curiam.
R. Paul Hughes, a foil-time, state-salaried public defender in Sebastian County, Arkansas, was ap pointed by the trial court to represent appellant, Theodore R. Steele, an indigent defendant. A timely notice of appeal was filed with the circuit clerk, pursuant to Ark. R. App. P. - Crim. 10, and the record was timely lodged in this court.
Hughes now asks to be relieved as counsel for appellant in this criminal appeal, based upon the cases of Rushing v. State, 340 Ark. 84, 8 S.W. 484 (2000) (holding that full-time, state-salaried public defenders were ineligible for compensation for their work on appeal), and Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000) (per curiam) (relieving appellant’s court-appointed public defender and appointing new counsel on appeal).
Since the time of those decisions, the law was changed by the General Assembly. Act 1370 of 2001 provides in part: “[Persons employed as full-time public defenders, who are not provided a state-funded secretary, may also seek compensation for appellate work from the Arkansas Supreme Court or the Arkansas Court of Appeals.” That provision is now codified as Ark. Code Ann. § 19-4-1604(b)(2)(B) (Supp. 2001).
Hughes’s motion states that he is provided with a full-time, state-funded secretary. Accordingly, we grant his motion to withdraw as attorney. Mac Golden will be .substituted as attorney for appellant in this matter. The Clerk will establish a new briefing schedule. | [
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Per Curiam.
Appellant Unum Life Insurance Company of America (Unum) appeals the decision of the Pulaski County Circuit Court denying a motion for directed verdict in Unum’s favor on a tort claim for bad faith, refusing to bifurcate or continue the trial, allowing certain testimony, and awarding penalty and attorney’s fees on a disability claim to Ms. Frances Edwards.
We do not reach the merits of Unum’s case because of its failure to comply with our addendum requirements. See Ark. Sup. Ct. R. 4-1 and 4-2 (2004). We may raise issues of deficiencies sua sponte. Ark. Sup. Ct. R. 4-2(b)(3) (2004). The addendum did not contain the numerous pleadings including, but not limited to: Unum’s motion and brief for partial summary judgment; Edwards’s response to Unum’s motion and brief for partial summary judgment; Unum’s reply to Edwards’s response to motion for partial summary judgment; and, Edwards’s supplement to her response to Unum’s motion for partial summary judgment. Again, we emphasize that these pleadings are merely some examples and are not exhaustive of the deficiencies.
It is a practical impossibility for seven justices to examine a single record filed with this court, and we will not do so. City of Dover v. City of Russellville, 351 Ark. 557, 95 S.W.3d 808 (2003). Arkansas Supreme Court Rule 4-2(a)(8) requires that the addendum shall include true and legible photocopies of, among other things, the relevant pleadings, documents, and exhibits that are essential to an understanding of the case and the court’s jurisdiction on appeal. In the absence of the pleadings and motions on which the trial court based its decision, it is impossible for the court to make an informed decision on the merits of this case.
Here, Unum has provided a flagrantly deficient addendum. Because the brief fails to include the relevant documents and pleadings, this court finds it to be deficient such that we cannot reach the merits of the case. Unum has fifteen days from the date of this opinion to file a substituted addendum to conform to Rule 4-2 (a) (8). See In re: Modification of the Abstracting System — Amendments to Supreme Court Rule 2-3, 4-2, 4-3, and 4-4, 345 Ark. Appx. 626 (2001) (per curiam); Ark. Sup. Ct. R. 4-2(b)(3) (2004). If Unum fails to file a complying addendum within the prescribed time, the judgment may be affirmed for noncompliance with the Rule. Id. After service of the substituted brief on the appellee, the appellee shall have an opportunity to file a responsive brief in the time prescribed by the Supreme Court Clerk, or to rely upon the appellee’s brief that was previously filed in this appeal. See Ark. Sup. Ct. R. 4-2(b)(3); Moon v. Holloway, 353 Ark. 520, 110 S.W.3d 250 (2003). | [
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Per Curiam.
Appellant and Sandra Burris, his live-in girlfriend, were tried together and represented by Dale Finley. Appellant was convicted of delivery of methamphetamine, conspiracy to deliver methamphetamine, and theft of property. He was sentenced to 420 months’ imprisonment. Burris was convicted of conspiracy to deliver methamphetamine and sentenced to six years’ probation conditioned upon her serving 120 days in the Pope County Detention Center. The Arkansas Court of Appeals affirmed. Cook v. State, 76 Ark. App. 447, 68 S.W.3d 308 (2002). Appellant subsequently sought postconviction relief pursuant to Ark. R. Crim. P. 37, which was denied following a hearing. From that order comes this appeal.
On appeal, appellant makes the following claims: (1) he was denied the effective assistance of counsel due to counsel’s joint representation of appellant and Burris and for counsel’s breach of loyalty to appellant, (2) counsel was ineffective for failing to investigate the granting of a pardon, (3) counsel was ineffective for failing to impeach Tom Alexander using tape recorded conversations, (4) the trial court erred in failing to find that appellant was denied due process because the State failed to disclose evidence of a pardoned conviction, and (5) counsel was ineffective for failing to interview and present the testimony of four witnesses. All other claims raised below but not argued on appeal are abandoned. See Echols v. State, 344 Ark. 513, 519, 42 S.W.3d 467, 471 (2001).
Appellant claims that counsel was ineffective as a result of a conflict of interest stemming from counsel’s joint representation of appellant and Burris, which also breached counsel’s duty of loyalty to appellant. Specifically, appellant claims that this alleged conflict adversely affected counsel’s performance during voir dire, the cross-examination of Tom Alexander, the direct examination of Burris, closing arguments, in his failure to move for directed verdict on behalf of appellant, and during the penalty phase of trial. In denying relief on this claim, the trial court held that appellant failed to show how counsel’s performance was detrimental to the defense or that he was prejudiced.
Prior to trial, counsel filed a motion for severance on behalf of Burris. This motion was the only means by which the dual representation issue was raised. On direct appeal, appellant referenced the closing statement of the motion to claim that it was filed on behalf of both defendants. He claimed that because counsel also represented Burris, his defense was prejudiced by creating a conflict of interest, and he was therefore denied his constitutional right to effective assistance of counsel. The court of appeals ruled that this claim of ineffectiveness was not raised below. Cook, 76 Ark. App. at 453, 68 S.W.3d at 313. According to the court, because appellant raised an ineffectiveness claim instead of an “immediate and egregious trial error,” the court did not believe that the application of the “serious error” exception to the contemporaneous objection rule was proper. Therefore, the court held that the claim was not preserved, and affirmed. Id. at 454, 68 S.W.3d at 313.
Cases involving an alleged conflict of interest due to joint representation are reviewed according to the standard set forth in Cuyler v. Sullivan, 446 U.S. 335 (1980). In Cuyler, the United States Supreme Court held that in order for a defendant, who did not raise an objection at trial, to establish a violation of the Sixth Amendment right to counsel, he must demonstrate that an actual conflict of interest adversely affected counsel’s performance. Id. at 348. Moreover, “a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.” Id. at 349-50. Until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for a claim of ineffective assistance. Id. at 350. Finally, the Court has held that “the possibility of conflict is insufficient to impugn a criminal conviction.” Id.
Specifically, appellant claims that counsel focused on Burris’s status as an accomplice during voir dire, thereby “elevating [appellant’s] role in the charges.” Appellant and Burris were charged as both principals and accomplices. During voir dire, counsel asked the potential jurors about their ability to distinguish between the two. According to appellant, counsel “related” to the venire that Burris was charged as an accomplice, which “created an inference that [appellant] was much more involved with the allegations than Ms. Burris.”
Simply clarifying what it means to be an accomplice and stating that Burris was not an accomplice, did not implicate appellant, considering that in the two counts in which both appellant and Burris were charged, the information stated that they acted as both principals and accomplices. Considering that three of the five counts in the information pertained solely to appellant, it appeared that appellant did play a bigger role in the offenses. Nothing counsel stated in voir dire changed those facts. Accord ingly, appellant has failed to demonstrate that an actual conflict of interest adversely affected counsel’s performance during voir dire.
Appellant goes on to claim that a conflict of interest affected counsel’s cross examination of Alexander, as counsel’s focus during the examination was to “minimize” Burris’s role. Alexander was a confidential informant who worked with law enforcement to arrange the purchase of methamphetamine from appellant. Counsel examined Alexander at length in an effort to diminish his credibility. The tarnishing of Alexander’s credibility in the eyes of the jury benefitted both appellant and Burris. Therefore, appellant has failed to demonstrate that an actual conflict of interest adversely affected counsel’s cross-examination of Alexander.
Appellant also claims that a conflict of interest affected counsel’s direct examination of Burris. At issue appears to be Burris’s testimony regarding appellant’s drug use. Appellant was also called to testify, giving him an opportunity to rebut such testimony. By calling both appellant and Burris to give their stories, counsel displayed no favoritism.
Appellant claims that counsel was ineffective in his closing argument. In his petition, appellant makes this assertion, and does nothing more than provide a fist of page references to the transcript in support of his claim. In his brief, appellant simply argues that during closing argument, counsel concentrated on Burris and not appellant. However, appellant’s claim is nothing more than a conclusory allegation with no supporting evidence, which does not provide a basis for postconviction relief. See Nance v. State, 339 Ark. 192, 195, 4 S.W.3d 501, 503 (1999).
Appellant also claims that a conflict was apparent in counsel’s motion for directed verdict on behalf of Burris and not appellant. However, again, he makes no showing of an actual conflict as required by Cuyler for a finding of ineffectiveness. At the Rule 37 hearing, counsel testified that, in his view, there was “plenty of proof’ of appellant’s guilt; therefore, he opted not to move for directed verdict on behalf of appellant. We find no basis for relief due to a conflict of interest, as counsel was using his professional judgment in choosing not to make a frivolous motion. Appellant also claims that counsel’s failure to move for directed verdict on his behalf deprived him of a potential dismissal and the ability to raise certain issues on appeal, including a challenge to the sufficiency of the evidence. This claim appears to be unrelated to any alleged conflict, and is analyzed below using the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).
Finally, appellant claims that counsel’s conflict of interest also affected his performance during the penalty phase of trial. Appellant argues no specific instances of how the conflict actually prejudiced his defense. He alleges only that this was, yet again, an attempt by counsel to “exonerate” Burris at appellant’s expense. According to appellant, the disparity in the sentences is proof that appellant suffered prejudice. However, an allegation with no supporting evidence does not provide a basis for postconviction relief. Nance, supra.
Appellant has failed to establish that counsel actively represented conflicting interests, which is the “constitutional predicate” for a claim of ineffective assistance under Cuyler. Without such a showing, there is no presumption of prejudice. Id. Accordingly, we find no merit to appellant’s claim, and affirm the trial court’s denial of relief.
As stated, appellant’s additional claims of ineffectiveness are analyzed using the Strickland standard, which is as follows:
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is rehable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Id. at 687. Thus, a defendant must first show that counsel’s performance “fell below an objective standard of reasonableness,” id. at 688, and second, that the errors “actually had an adverse effect on the defense.” Id. at 693.
In reviewing a denial of relief under Rule 37, we must indulge in a strong presumption that counsel’s conduct falls within the range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, appellant must show that there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id.
Ineffective assistance of counsel cannot be established by a mere showing of error by counsel or by revealing that counsel’s failure to object prevented an issue from being addressed on appeal. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (1997) (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). We must consider the totality of the evidence before the factfinder, and we will not reverse the denial of postconviction relief unless the lower court’s findings are clearly against the preponderance of the evidence. Noel, supra.
In denying relief as to counsel’s failure to move for directed verdict on appellant’s behalf, the trial court found that counsel moved for directed verdict on behalf of Burris because he felt that the evidence supported the motion and that the evidence would not have supported a directed verdict on behalf of appellant. Counsel’s determination is supported by the following facts noted by the court of appeals:
On June 25, 1999, Tom Alexander (a confidential informant) met with investigators of the Fifth Judicial District Dmg Task Force (DTF) to arrange a controlled purchase of methamphetamine from appellant, Carl “Bubba” Cook. On July 12, 1999, Alexander arranged to purchase one ounce of methamphetamine from Cook. Investigators with the DTF met with Alexander prior to the arranged purchase and installed a body wire, provided him with a tape recorder, and gave him $1,200 in “buy” money. At approximately 10:30 p.m. on July 12, Alexander entered the residence of Carl Cook and Sandra Burris on Atkins Bottom Road in Pope County, Arkansas. In an area outside of the appellants’ home, Alexander gave Cook the $1,200 in exchange for one ounce of methamphetamine. The transaction was recorded on audio tape. Appellant Burris was inside the home during the “buy.” She was monitoring a police scanner and communicated to Cook that she could hear Cook’s conversation with Alexander on the scanner. Cook demanded that Alexander follow him to the house for questioning. While walking to the residence, Alexander discarded the body wire and tape recorder before being questioned by Cook. Once inside the residence, Cook ordered a strip search. When Alexander’s shirt was removed, a piece of tape was discovered. Before Cook released him, Alexander was robbed, threatened, and kept against his will for approximately two hours.
The following day, a search warrant was executed for the Cook residence for the body wire, recorder, and money. The tape recorder was recovered during the search. The following day, a van was stopped that had been seen at the Cook residence during prior surveillance of his property. The driver, David Kidd, was detained on an unrelated chancery court matter. During a routine inventory search of the van, the body wire that Alexander discarded on Cook’s property was discovered.
Cook, 76 Ark. App. at 450, 68 S.W.3d at 310-11. In addition, the jury heard a recording of the drug “buy” between appellant and Alexander. Id. at 452, 68 S.W.3d at 312. The jury also heard Alexander’s testimony regarding the events that followed appellant’s discovery of the recording device.
Given the amount of evidence against appellant, he has failed to show that had counsel moved for directed verdict on his behalf, that it would have been granted. Without a showing of prejudice, appellant is not entitled to postconviction relief.
Appellant also argues that counsel was ineffective for failing to investigate the granting of a pardon. In denying relief on this claim, the trial court held that this matter was addressed on direct appeal and that no prejudice was found.
On direct appeal, appellant argued that he was entitled to a new trial because a pardoned sentence was introduced during the sentencing phase of his trial. The following is an excerpt from the opinion denying relief:
When the State offered a certified copy of a 1981 conviction for carrying a prohibited weapon, Cook’s attorney informed the court that his client maintained that the conviction had been pardoned. The prosecutor noted that the NCIC printout indicated a pardon for a 1979 conviction but not for the 1981 conviction. The judge asked if the appellant could produce any evidence of the pardon, and counsel noted that the circuit clerk’s office was closed because it was 9:00 p.m. Counsel never requested a continuance to procure the clerk’s record of the alleged pardon. The court asked several times if appellant wanted to offer any testimony, and counsel stated that he would offer appellant’s testimony on the issue of the pardon for the record, but that he did not want to put it before the jury. However, the sentencing continued and the record does not reflect that the appellant ever testified regarding the pardon. The only indication that the appellant was pardoned was the claim of his attorney, and it is well settled that arguments of counsel are not evidence. Once the State offered the certified copy of the conviction, it had established a prima facie case, and the burden shifted to the appellant to establish the pardon. Because no evidence was introduced, the conviction was properly admitted. No motion for new trial or for resentencing was ever filed. Cook attempted to raise the issue of the pardon to the trial court when the case was initially remanded to setde the record on an unrelated issue, but the trial court correctly refused to reconsider the pardon at that time.
The State also argues that the admission of the pardoned offense did not prejudice Cook because he was sentenced to less than the potential maximum sentence, and because he was not charged as an habitual offender. The admission of the prior offense did not change the range of available sentences, nor did Cook receive the maximum sentence available to the jury.
In order to prevail on his claim, Cook must do more than allege prejudice, he must demonstrate it. We will not reverse on the mere potential for prejudice. Therefore, because Cook cannot show that he was prejudiced by the admission of the conviction during the sentencing phase of the trial, his claim of error must fail.
Cook, 76 Ark. App. at 454-55, 68 S.W.3d at 313-14 (internal citations omitted). Accordingly, without a showing of prejudice, appellant cannot succeed on a claim of ineffectiveness. We therefore affirm the denial of relief on this point.
Appellant claims that counsel was ineffective for failing to impeach Alexander regarding alleged inconsistent statements by using the tape recorded conversations. In denying relief, the trial court found that appellant failed to indicate what evidence was on these recorded tapes that could have been used to impeach. According to the court, Alexander was cross-examined by counsel and also called as a defense witness. Moreover, the trial court noted that counsel testified at the hearing that he “knew Mr. Alexander had told a lot of lies and that he did not have a deal with the State.”
We have held that the manner of questioning a witness is a very subjective issue about which different attorneys could have many different approaches. Nelson v. State, 344 Ark. 407, 414, 39 S.W.3d 791, 796 (2001). Even if counsel’s decision proves unwise, matters of trial tactics and strategy are not grounds for postconviction relief. Id. Moreover, it is the sole province of the jury to determine not merely the credibility of a witness, but the weight and value of his or her testimony. Id. In the instant case, there is no evidence that the jury would have resolved the credibility determination in appellant’s favor such that it would have affected the outcome of his trial. We therefore affirm the denial of relief.
Appellant’s next point, which he brings pursuant to Brady v. Maryland, 373 U.S. 83 (1963), is that the trial court erred in failing to find that appellant was denied due process because the State failed to disclose evidence of the pardoned conviction previously addressed. In denying relief, the trial court held that this matter was not subject to postconviction relief. We agree.
In Brady, the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87. In Strickler v. Greene, 527 U.S. 263, 280 (1999), the Court revisited Brady and declared that evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” In Strickler, the Court also set out the three elements of a true Brady violation: (1) that the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) that the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) that prejudice must have ensued.
We have held that Rule 37 does not provide for the discovery of evidence. Weaver v. State, 339 Ark. 97, 103, 3 S.W.3d 323, 328 (1999). Moreover, as stated above, the court of appeals found that appellant suffered no prejudice as a result of the admission of the conviction. We therefore affirm the ruling below.
Appellant’s final claim for relief is that counsel was ineffective for faffing to interview four witnesses and thereafter present the testimony of these witnesses. In denying relief, the trial court found that counsel was aware of the four witnesses whose names were furnished by appellant and who were at appellant’s house on the date of the offense. The court noted counsel’s testimony that he did not subpoena the witnesses because the State had them subpoenaed. According to the trial court, these witnesses had felony convictions or charges pending. The trial court ruled that appellant failed to show how he was prejudiced by counsel’s failure to interview the witnesses or what testimony they could have given that could have changed the outcome of the trial.
According to appellant, Freddie Petty, Dewey Pace, and Bryan Embry were all present at his residence during the time that Alexander was there. Appellant claims that these individuals would have contradicted Alexander’s testimony regarding the drug transaction. Moreover, appellant claims that David Kidd could have testified concerning the suppression of evidence seized from appellant’s van.
At the Rule 37 hearing, counsel testified that he did not subpoena these witnesses because he was “afraid” of them. According to counsel, the problem with Embry and possibly some of the others, was that they already had convictions that were related to methamphetamine. Counsel testified that it is a “balancing act” determining which witness would be best to call. He also testified that he did interview Petty and that Petty never told him that there was no methamphetamine lab. Counsel testified that none of the witnesses could have told him that a methamphetamine lab did not exist; all they could testify to was that they did not see any equipment that was used in the manufacture of methamphetamine. Counsel testified that he did not believe that any of these individuals were present during the “critical time” on the date in question. Moreover, according to counsel, although three of the witnesses denied that a drug transaction occurred between appellant and Alexander, these witnesses were only stating that they did not see a transaction.
The decision of whether or not to call a witness is a matter of trial strategy that is outside the purview of Rule 37. We have held:
Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to his client. When assessing an attorney’s decision not to call a particular witness, it must be taken into account that the decision is largely a matter of professional judgment that experienced advocates could endlessly debate, and the fact that there was a witness or witnesses who could have offered testimony beneficial to the defense is not in itself proof of counsel’s ineffectiveness. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment pursuant to the standards set forth in Strickland.
State v. Goff, 349 Ark. 532, 541, 79 S.W.3d 320, 325-26 (2002) (internal citations omitted). Because counsel’s decision was a matter of trial strategy that did not fall beyond the scope of what a competent attorney would recommend, we affirm the ruling below.
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Per Curiam.
Appellant James Richard Dortch, by and through his attorney, has filed a motion for rule on clerk. His attorney, Thurman Ragar Jr., states in the motion that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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WH. “Dub” Arnold, Chief Justice.
Before us now is the fifth appeal of this case and the second appeal of the November 29, 1999, order entered by the trial court. We hold that appellants have not filed a sufficient record to consider the issues appealed. As such, the case is affirmed.
The underlying facts leading to this case involve a dispute over the distribution of the assets of a liquidating trust which contained approximately 1,600 acres of land previously held by a closely-held family corporation called Wild Life Farms, Inc. (hereafter “WF”) and the resulting tax and asset issues that ensued once James Irby Seay, Sr., died and his will was admitted into probate in September of 1981.
In the initial appeal of this matter, appellants George Seay and James Seay, Jr., had originally filed suit against the trustees, alleging the Seays were entitled to the trust assets and the trustees had no power to have conveyed the title to the acreage to WF. Eventually, the chancellor granted partial summary judgment in favor of WF. A trial was then held in the matter from October 5, 1998, to October 12, 1998; and, on December 18, 1998, the chancellor entered an “interim decree” dismissing the Seays’ complaint “except as to matters and things hereby reserved as set out in the court’s findings of fact and conclusions of law.” The Seays appealed the chancellor’s earlier September 28th order granting WF partial summary judgment, but their appeal was later dismissed by the court of appeals on October 27, 1999, because the chancellor’s order was not final. See Seay v. Wildlife Farms, Inc., CA-99-122, slip op. at 4 (Árk. App. October 27, 1999). The court of appeals further held that the Seays failed to comply with Ark. R. Civ. P. 54(b) under which they could have acquired an express determination that they could appeal the non-final order because there was no reason to delay an appeal. Id.
After the Seays’ appeal was dismissed, the parties returned to the chancellor, and he entered a final order on November 29, 1999, resolving the issues against the Seays that had been previously reserved in the chancellor’s “interim decree” dated December 18, 1998. The Seays then appealed the November 29, 1999, order, which this Court dismissed as untimely due to the Seays’ failure to obtain a timely extension to file the record under Ark. R. App.—Civ. 5(b). Seay v. Wildlife Farms, Inc., 342 Ark. 503, 29 S. W.3d 711 (2000).
The trial court entered three orders dated after this Court’s 2000 decision, which the Seays now appeal. In our 2000 decision, we held that the Seays, by filing a brief dealing only with the summary-judgment issue, had waived or abandoned any other issues they could have raised. Id. at 510. We, therefore, now hold that all issues and orders entered before November 29, 1999, are moot based upon this Court’s 2000 decision dismissing the appeal of the November 29, 1999, order; as such, the only three issues before us are: an October 3, 2001, order denying a motion for reconsideration; an October 30, 2001, order denying discovery; and, an order of final distribution filed February 27, 2002, granting attorneys’ fees. Appellants have failed to file a sufficient record before us to decide these issues; as such, the case is affirmed.
I. Order Denying Motion for Reconsideration
The trial court’s order denying appellants’ motion for reconsideration does not appear in the addendum, and it was not abstracted. The order does appear in the record; however, the order only denies the motion and does not tell us what was before the court. Further, the motion for reconsideration itself does not appear in the addendum, abstract, or record, either as a written motion or as an oral motion set out in a transcription of a hearing. It is impossible for us to know what the motion entailed.
II. Order Denying Discovery
Likewise, as with the motion for reconsideration, we have only the order denying discovery and nothing else abstracted or included in the addendum. It is unclear what the discovery was even about, other than it related to attorneys’ fees that were granted after this Court’s 2000 opinion; we only know this from the transcription included in the record of a discussion that states that the motion was about attorneys’ fees.
III. Final Order of Distribution
Appellants contend that the probate court lacked jurisdiction to grant attorneys’ fees, which were granted in the February 27, 2002, order of final distribution. Appellants argue that the fees were granted based upon work done with respect to the trusts created by Mr. Seay, Sr.’s will and that only a chancery court has jurisdiction over construction, operation, and interpretation of trusts. Appellants argue that this is a question of subject-matter jurisdiction and attempt, in their argument, which is extremely broad, to revert back to issues litigated in the 1980s on this issue. As stated above, appellants are limited by our prior opinion to fees granted after the November 29, 1999, order. As such, the only period for which the Seays can contest this issue is from the November 29, 1999, order involved in our 2000 decision and the closing of the estate on February 27, 2002.
The only order after November 29, 1999, granting fees is the November 15, 2001, order which, like the other orders discussed above, is not included in the addendum, abstract, or even in the record. The only copy appears as an exhibit to the appellants’ response to appellees’ motion to dismiss this appeal. This copy does not comply with our rules. See Ark. R. App. P. — Civ. 6, 7. Moreover, the final order of distribution merely confirms that final distribution has been made “in accordance with previous orders,” which are not included for this Court’s consideration.
We have stated time and time again that it is the appellant’s burden to produce a record on appeal sufficient for our review. Gibbs v. Hensely, 345 Ark. 179, 44 S.W.3d 334 (2001); Lee v. Villines, 328 Ark. 189, 942 S.W.2d 844 (1997); Ozark Auto Transp., Inc. v. Starkey, 327 Ark. 227, 937 S.W.2d 175 (1997); see also Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999); SD Leasing Inc. v. RNF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983). The record simply does not place the matters argued before this Court. Issues outside the record will not be considered on appeal. Gibbs v. Hensely, supra; Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992).
For all of the foregoing reasons, we do not have a sufficient record before us to consider the issues appealed. As such, the case is affirmed.
Affirmed.
The Seays alleged many counts setting out their claims for damages and relief, but it is unnecessary for purposes of this opinion to discuss those claims here. | [
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Ray Thornton, Justice.
Alvin Bernal Jackson, a/k/a tice. convicted of capital murder in Pulaski County Circuit Court and was sentenced to life imprisonment without parole. We affirmed Mr. Jackson’s sentence in Jackson v. State, 306 Ark. 70, 811 S.W.2d 299 (1991). While serving the above sentence, Mr. Jackson was charged with capital murder in the death of Scott Grimes, a correctional officer at the Maximum Security Unit in Jefferson County. Mr. Jackson was tried in Jefferson County Circuit Court and found guilty. During the sentencing phase of the trial, the trial court found an error on the verdict form used by the jury to determine the presence and weight of aggravating and mitigating circumstances. The jury had incorrectly marked Verdict Form 2 D to indicate that “no evidence of mitigating circumstances was presented by either party during any portion of the trial.” Form 2 D further,provided as follows: “(Check only if no evidence was presented. If evidence was presented but the jury agreed that it was not mitigating, check section C.)” The trial judge brought the problem to the jury’s attention and directed them to return to the jury room to correct the form. Mr. Jackson’s counsel did not object to the judge’s action in returning the forms to the jury for correction, nor was there an objection to the judge’s specific instruction that Form 2 D could not be checked because it was clear that some evidence of mitigating circumstances had been presented for consideration by the jury. After their return to the jury room, only a few minutes passed before the jury returned to open court with completed forms. The jury had deleted the check mark previously affixed to Form 2 D that had stated that no evidence of any mitigating circumstances had been presented but rather checked Form 2 C, as fohows:
(X )THERE WAS EVIDENCE OF THE FOLLOWING CIRCUMSTANCES, BUT THE JURY WAS UNANIMOUSLY AGREED THAT THEY WERE NOT MITIGATING CIRCUMSTANCES:
( ) THE CAPITAL MURDER WAS COMMITTED WHILE ALVIN JACKSON WAS UNDER EXTREME MENTAL OR EMOTIONAL DISTURBANCE.
( ) THE CAPITAL MURDER WAS COMMITTED WHILE THE CAPACITY OF ALVIN JACKSON TO APPRECIATE THE WRONGFULNESS OF HIS CONDUCT OR TO CONFORM HIS CONDUCT TO THE REQUIREMENTS OF THE LAW WAS IMPAIRED AS A RESULT OF MENTAL DISEASE,
( ) ALVIN JACKSON HAD A HISTORY OF MENTAL RETARDATION.
The trial court noted that while the first paragraph of Form 2 C was checked, no check marks were made to any of the three listed mitigators set forth following the first paragraph of Form 2 C. The trial court further noted that Form 3, the weighing of aggravating circumstances and mitigating circumstances, required by Ark. Code Ann. § 5-4-603 (Repl. 1997), had been unanimously signed by the jury. Counsel for defendant did not object to the form or substance of Forms 1, 2, or 3, nor to the conclusion that the jury unanimously sentenced the defendant to death. We affirmed. Jackson v. State, 330 Ark. 126, 954 S.W.2d 894 (1997)(“Jackson I”). The trial court’s effort to correct Form 2 on mitigating circumstances was before this court for review in the appeal on the merits. Jackson I, supra. We also conducted an Ark. Sup. Ct. R. 4-3(h) review in Jackson I. In the event that the judge’s effort to correct deficiencies in filling out Form 2 constituted an error that rose to the level where our review was required notwithstanding the lack of a contemporaneous objection, in accordance with Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), we considered that issue in our review on the merits.
Mr. Jackson then pursued a Rule 37 appeal in his death-penalty case. After relieving the attorney originally appointed to Mr. Jackson because- of her possible witness status, attorney Jeff Rosenzweig was appointed and given ninety days from the entry of the order, pursuant to Arkansas Rule of Criminal Procedure 37.5(e). The State argued that the petition was untimely filed, and the lower court agreed and dismissed the case. The order was entered on November 19, 1998. The issue of whether the petition was timely filed was appealed, and we reversed and remanded the matter back to the trial court. Jackson v. State, 343 Ark. 613, 37 S.W.3d 595 (2001), (“Jackson IF’). Upon remand, the trial court denied Mr. Jackson a hearing and entered an order finding that Jackson was conclusively not entitled to relief on any point. The trial court entered the order on October 9, 2001, and from that order comes this appeal. We hold that the trial court properly denied Mr. Jackson’s petition for Rule 37 relief, and we affirm.
This court does not reverse a circuit court’s decision to deny post conviction relief unless that decision was clearly erroneous or clearly against the preponderance of the evidence. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). In reviewing a petition for postconviction relief under Rule 37, we do not reexamine issues raised and resolved in the direct appeal. Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001). A Rule 37 proceeding is directed toward determining whether counsel was so deficient in performance of his duties that the defendant was denied his right to the effective legal representation guaranteed by the Sixth Amendment. Id. In an appeal from a trial court’s denial of a Rule 37 petition, the question presented to us is whether, based on the totality of the evidence, the trial court clearly erred in holding that counsel’s performance was not ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). We have often applied the standard set forth in Strickland, supra, to determine ineffective assistance of counsel:
[T]he petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the fact finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.
Cothren v. State, 344 Ark. 697, 42 S.W3d 543 (2001). The language, “the outcome of the trial,” refers not only to the finding of guilt or innocence, but to possible prejudice in the sentencing. Lasiter v. State, 290 Ark. 96, 717 S.W.2d 198 (1986). In making a determination of ineffective assistance of counsel, the totality of the evidence must be considered. Id. Furthermore, trial strategy is not a basis for postconviction relief. Wooten v. State, 352 Ark. 241, 91 S.W.3d 63 (2002).
Mr. Jackson states his first point on appeal as “whether the circuit court originally erred in an improper incursion into the jury’s role in a misguided attempt to cure obvious penalty phase error.” The jury was required to fill out three different forms relating to sentencing. Form 1 related to the jury’s findings concerning the possible aggravating circumstances. The jury found that both aggravating circumstances presented to them by the State existed. Form 2 contained four parts: A, B, C, and D. The instructions directed that if they found that specific mitigating circumstances existed at the time of the murder, they should make marks in the available spaces on Form 2 A. The jury checked none of the spaces. Form 2 B instructed that if one or more members of the jury believed that some of the mitigating circumstances existed but the jury was not unanimous, they should check the available spaces. The jury checked none of the spaces. Form 2 C provided spaces for the jury to mark if they found that there was mitigating evidence presented, but that they unanimously agreed that they were not mitigating circumstances, then underneath that statement, the possible mitigating circumstances were written out with spaces next to them for the jury to make marks indicating those circumstances were presented. Originally, Form 2 C was not marked by the jury. Instead, the jury had marked Form 2 D, which stated that no mitigating circumstances were presented by either party during any portion of the trial. Furthermore, Form 2 D reminded jurors that if mitigating evidence was presented though it was not mitigating, they were to required to check Form 2 C.
When the jury first returned the verdict forms, the circuit court judge ascertained that they had incorrectly filled out the sentencing portion of the forms, checking Form 2 D. Rather than allow the jury to create an error as a matter of law, he instructed them to return to the jury room and correct their mistake. The following colloquy occurred:
The Court: Ms. Rideau, has the jury arrived at a recommended sentence?
Foreperson Rideau: Yes, sir.
The Court: Would you pass it up to the bailiff, please. (Form handed to the Court.) Ms. Rideau, on the — on Form 2, you have checked paragraph (d) and signed this. I was, perhaps, unclear in my instructions to you. Paragraph (d) says that no evidence of mitigating circumstances was presented by either party during any portion of the trial. That was included in the form. It was to be checked only if no evidence. Certainly, some evidence was presented. And it goes to say, if evidence was presented but the jury agreed that it was not mitigating, check section (c). I’m going to ask you if you will, please, for y’all to retire to the jury room and complete Form 2 in accordance with the instructions contained on that if you would, please. I’m going to send you back with all of the forms you just returned. And if you would, please make that correction. I’ll just tell you as a matter of law Form 2, section (d) should not be checked because there was, in fact, evidence submitted as to mitigating circumstances.
Would the jury retire then to the jury room for the correction of Form 2, please.
The court then reviewed the forms and the following colloquy occurred:
The Court: Form 2 is executed paragraph (c). There was evidence of the following circumstances but the jury unanimously agreed that they were not mitigating circumstances. There are none checked. But there is a signature line on the fourth page by you Ms. Rideau. Is that the unanimous finding of the jury?
Foreperson Rideau: Yes, sir.
We agree with the concurring opinion’s view that any confusion concerning Form 2 C does not show that the jury failed to properly consider mitigating circumstances in accordance with our statutory requirements. Trial counsel declined to poll the jury when asked by the court, stating, “Not with the signatures, your honor.” We cannot conclude that this action by counsel constituted an ineffective performance of counsel under the Strickland test.
In Jones v. State, 329 Ark. 62, 947S.W.339 (1997), on direct appeal, we faced a similar issue and held that though the jury filled out the verdict form incorrectly, there was no error when the jury found that the aggravating circumstances outweighed the mitigating circumstances in accordance with Ark. Code Ann. § 5-4-603 (Repl. 1997). In Jones, we held that any inconsistencies by the jury in completing the form pertaining to mitigating factors constituted harmless error. Id. We distinguished Jones, supra, from Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997), where we reversed a sentence of death and remanded for resentencing based on the jury’s failure to return a unanimous written finding that the aggravating circumstances warranted a sentence of death. Id. In Camargo, the jury did not comply with the requirements of Ark. Code Ann. § 5-4-603, whereas in Jones, supra, and the instant case, the statutory requirements were satisfied.
Mr. Jackson claims that the trial court improperly directed the jury to find that there were no mitigating circumstances and that they had no choice but to give a sentence of death. We disagree. Any completion of Form 2 following the trial court’s action in returning the forms for further consideration does not reflect a failure by the jury to properly consider mitigating circumstances. We note that Form 3 setting out the statutory requirements for weighing aggravating circumstances and mitigating circumstances was correctly filled out by the jury. The statute, codified at Arkansas Code Annotated § 5-4-603, requires that
(a) The jury shall impose a sentence of death if it unanimously returns written findings that:
(1) Aggravating circumstances exist beyond a reasonable doubt; and
(2) Aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and
(3) Aggravating circumstances justify a sentence of death beyond a reasonable doubt.
(b) The jury shall impose a sentence of life imprisonment without parole if it finds that:
(1) Aggravating circumstances do not exist beyond a reasonable doubt; or
(2) Aggravating circumstances do not outweigh beyond a reasonable doubt all mitigating circumstances found to exist; or
(3) Aggravating circumstances do not justify a sentence of death beyond a reasonable doubt.
(c) If the jury does not make all findings required by subsection (a) of this section, the court shall impose a sentence of life imprisonment without parole.
Id. The statute requires that the jury vote unanimously and perform a weighing test of the mitigating factors against the aggravating factors before it can impose the death penalty.
Here, the trial court did not direct the jury to impose the death penalty. Instead, the court properly instructed the jury to go back into the jury room and correct an error made in completing the form.
Mr. Jackson presents a secondary issue within his first point on appeal as whether the court erred in denying relief and in denying Jackson a hearing on the point. We do not reach this issue because we find no error in the court’s action to require the jury to correct an erroneous finding in Form 2 D. Because there was no error, the issue of whether the court properly denied a hearing on the matter is moot.
Mr. Jackson presents as his second point on appeal as whether his trial counsel were ineffective by their failure to present an adequate penalty-phase defense, and whether the trial court erred in denying a hearing in its application of the law. We find no error and affirm.
Mr. Jackson acknowledges that his counsel did attempt a penalty-phase defense. Mr. Jackson, an inmate at the Department of Correction serving a life sentence for capital murder, made a “shank” and escaped from his cell. A lifelong friend of his, Kia Duncan, testified that Mr. Jackson told her that he had not intended to kill the officer, but the inmate the officer was escorting. Mr. Jackson told her that “he had kind of worked his cell door loose to get to the inmate . . . [Mr. Jackson] said the inmate had done something to one of his Muslim friends, and that the Muslim friend asked him to take care of the situation for him[.]” Mr. Jackson admitted to Ms. Duncan that he had premeditated his actions. Phone records confirmed that Ms. Duncan and Mr. Jackson had talked on the day that she testified they had.
Tony Tableriou, a former employee at the Department of Corrections, testified that on the day of the crime, he saw Mr. Jackson “sliding through the door of his cell.” Mr. Tableriou yelled to the victim, and saw Sergeant Grimes and the inmate Mr. Jackson was allegedly intending to kill standing by a staircase. Mr. Tableriou witnessed Sergeant Grimes physically restrain Mr. Jackson and saw something in Mr. Jackson’s hand. Mr. Tableriou tried to get the shank out of Mr. Jackson’s hand, and they all fell to the ground. When Mr. Jackson had been restrained, Mr. Tableriou saw that Sergeant Grimes was kneeling on the ground with two tears near his armpit, then he fell down and died. Mr. Tableriou’s testimony was corroborated by another officer, Gary Hill.
During the penalty phase, trial counsel called Mr. Jackson’s twin brother, Calvin Jackson, in mitigation. Calvin promised that if the jury gave his brother a life sentence, he and his mother would continue to visit appellant. Calvin recounted his twin brother’s troubled youth and that when his brother had been on medication, his behavioral problems seemed to subside. Calvin testified that his brother had an uncontrollable temper, and that the medication had seemed to help him control it, suggesting that there was a possible mental condition to blame for Mr. Jackson’s behavior. In contrast, Calvin offered testimony that though they had grown up in the same house, under the same conditions, that he had very little trouble in his life and that he had a successful career in restaurant management.
Trial counsel’s decisions as to which witnesses should be called during the penalty phase is a matter of trial strategy and we have held that matters of trial strategy are not grounds for a showing of ineffective assistance of counsel. Coulter v. State, 343 Ark. 22, 31 S.W.2d 826 (2000). Even though another attorney may have chosen a different course, trial strategy, even if it proves unsuccessful, is a matter of professional judgment. Camargo, supra. Furthermore, in light of the totality of evidence presented, counsel’s performance during the penalty phase was not deficient, and Mr. Jackson’s contention that trial counsel should have used the same strategy in his second murder trial as that used in his first murder trial fails. Mr. Jackson, already serving a life sentence for the first murder, planned and committed another murder. The jury was made aware that this was Mr. Jackson’s second murder charge and to contend that the strategy during the penalty phase should be the same for two substantially different murders must fail. Accordingly, on this point, we affirm the denial of Rule 37 relief.
Mr. Jackson’s third point on appeal is whether trial counsel was ineffective in failing to seek further examination to determine if Mr. Jackson had a mental illness, and whether the denial of relief was based on a faulty understanding of the law. We find no error and affirm.
Mr. Jackson makes only conclusory statements concerning whether further examination might have led to the determination that an organic cause of a mental illness was present. Mr. Jackson explains that if CT, PET or MRI tests had been performed, the tests might have resulted in some showing of an organic cause of some mental illness. Conclusory statements cannot be the basis of postconviction relief. Sanford v. State, 342 Ark. 22, 25 S.W. 3d 414 (2000). We will not grant postconviction relief for ineffective assistance of counsel where the petitioner fails to show what the omitted testimony or other evidence was and how it would have changed the outcome. Camargo, supra. In the absence of any showing of what the evidence concerning the results of medical testing might have proven, we affirm.
Mr. Jackson’s fourth point on appeal is whether trial counsel was ineffective in not objecting to a misstatement of the law by the prosecuting attorney, and whether the trial court’s analysis of the law concerning mitigating circumstances was incorrect as a matter of law. We find no error in either the prosecutor’s statement of the law or the trial court’s interpretation of the law, and therefore, we affirm on this point.
The alleged misstatement of the law by the prosecutor was made during the closing arguments of the penalty phase of the trial. Mr. Jackson asserts that the following statement caused the jury to reject the evidence of mitigating circumstances:
[H]e’s talking about this case and he’s talking about the murder of Scott Grimes, was able to appreciate the criminality of his conduct and conform his conduct to the requirements of the law at the time of the alleged crime. That’s the psychological examiner’s opinion. That mitigating circumstances wouldn’t apply.
Mr. Jackson is incorrect. The prosecutor did not misstate the law, and therefore, it was not error for Mr. Jackson’s attorney to fail to object.
Failure to make a meritless objection is not an instance of ineffective assistance of counsel. Lee v. State, 343 Ark. 702, 38 S.W.3d 348 (2001). The prosecutor stated the elements of Ark. Code Ann. 5-4-605(3), which states the elements necessary for finding mitigating circumstances due to mental impairment: (1) the ability to appreciate the wrongfulness of the conduct, or (2) the ability to conform conduct to the require- merits of the law at the time of the commitment of the crime. Id. The prosecutor then reminded the jury of the psychological examiner’s expert opinion of Mr. Jackson’s ability to appreciate the criminality of his conduct and to conform his conduct to the law. The prosecutor then explained that because Mr. Jackson was able to do both of these things the mitigating circumstances presented by the defense would not apply. The State was permissibly responding to Mr. Jackson’s claim of the presence of mitigating circumstances by impairment due to mental disease or defect. Thus, the trial court’s assessment that the State did not misstate the law concerning Ark. Code Ann. § 5-4-605(3) was proper. We find no error and affirm.
Mr. Jackson’s fifth point on appeal is whether trial counsel were ineffective in failing to appropriately argue objections to victim-impact evidence. We decline to reach this issue on the grounds that it was not preserved for appeal. We previously held that this claim was procedurally barred because Mr. Jackson did not obtain a ruling from the trial court concerning the constitutionality of victim-impact evidence. Jackson I, supra. Furthermore, had the issue been preserved, Mr. Jackson’s argument is without merit. We have rejected claims of error because of a failure to object to victim-impact evidence several times. See, Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 cert. denied, 519 U.S. 892 (1996); Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), cert. denied 517 U.S. 1143 (1996). The United States Supreme Court has also held that victim-impact evidence is permissible. See Payne v. Tennessee, 501 U.S. 808, (1991).
Because we have determined that the trial court order denying Rule 37 relief was not clearly erroneous or clearly against the preponderance of the evidence, we affirm.
Imber, J., concurs. | [
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Jim Hannah, Justice.
Crooked Creek, III, Inc. (“Crooked stice. order of summary judgment entered in favor of EHP Corp. (“EHP”), and ajudgment entered in favor of the City of Greenwood (“the City”) and Joe Siegmund. Crooked Creek argues that the trial court erred in finding that under the doctrine of res judicata, an order of dismissal without prejudice on a motion for nonsuit barred suit later on the same issues. The City cross-appeals, alleging that the trial court erred in finding a contract existed between the City and Crooked Creek. Finally, Crooked Creek moves for costs on appeal.
We hold that the 1999 order of dismissal without prejudice does not constitute an order definitely and finally settling and determining the issues on the merits. Therefore, res judicata does not apply. The trial court’s finding that res judicata barred suit is reversed, as are the consequent findings by the trial court that the cross-claim against EHP was barred by res judicata, and that the action against Siegmund was barred by estoppel based on the finding of res judicata. Because we hold that res judicata does not bar suit, we need not address the issues of a contract between Crooked Creek and the City or any breach of a contract. Any ruling on the existence of a contract would have no effect in this case because the 1999 order of dismissal does not bar suit, and, therefore, the City could not have breached any contract by agreeing to the 1999 order of dismissal. Crooked Creek’s motion for costs is granted.
Facts
In 1995, developers Crooked Creek and J.L. Clements Construction Co. (Clements) constructed a fifteen-inch gravity-fed sewer fine that was larger than required to serve the subdivision that was being built. In building the fifteen-inch sewer line, an existing six-inch forced sewer fine was abandoned. Crooked Creek asserts that the City wanted a larger sewer to accommodate future development in the area. There was also evidence that Crooked Creek anticipated undertaking future development in the area and wanted the larger sewer line to facilitate its future activities. Crooked Creek alleges, however, that the larger sewer line was constructed pursuant to an agreement with the City, and that as a part of the agreement, the City was to collect future tie- on fees and pass those fees on to Crooked Creek and Clements as compensation for constructing the larger sewer line. As evidence of this agreement, Crooked Creek offers three ordinances passed by the City providing for collection of the tie-on fees and distribution of the collected fees to Crooked Creek and Clements.
EHP owned property that was tied on to the new sewer line installed by Crooked Creek and Clements. Siegmund purchased a portion of the property initially owned by EHP. In 1999, the City began to collect tie-on fees. However, EHP and Siegmund refused to pay the tie-on fees, arguing that its property was not covered by the ordinances, and that the ordinances were invalid. Nonetheless, the City continued to seek the tie-on fees from EHP and Siegmond. EHP responded by threatening suit. The City then reconsidered EHP’s claims and determined that EHP’s property was not subject to the ordinances. When the City notified EHP of the decision that the ordinances did not apply to its property, counsel for EHP informed the City that suit had already been filed. However, because of the decision that the ordinances did not apply to its property, EHP agreed to nonsuit its action. EHP filed a motion for nonsuit. An order of dismissal was filed on the nonsuit which provided not only that the action was dismissed without prejudice, but also included the parties’ agreement that the City’s ordinances did not apply to EHP’s property.
After the nonsuit, Crooked Creek began pressuring the City to collect the tie-on fees. The City then filed the present declaratory judgment action seeking a determination of the court regarding the enforceability and applicability of the ordinances. EHP answered asserting res judicata based on the order dismissing the 1999 suit. Siegmund answered arguing that he also enjoyed the benefit of the 1999 dismissal because his property was purchased from EHP and was part of the property covered by the 1999 dismissal. Crooked Creek cross-claimed against EHP and Siegmund for the amount of the tie-on fees Crooked Creek alleged EHP and Siegmund owed, and against the City for breach of contract.
EHP filed a motion for summary judgment alleging that the 1999 order of dismissal conclusively established that the ordinances did not apply to EHP. The trial court agreed and granted summary judgment to EHP based on res judicata. The remainder of the case was then tried to the court and the trial court found that because Siegmund purchased its property from EHP, the City was estopped from seeking tie-on fees from Siegmund because the finding of res judicata in favor of EHP inured to Siegmund’s benefit. The trial court further found no breach of contract by the City.
Crooked Creek alleges several points on appeal. Crooked Creek first alleges that the trial court erred in finding that the declaratory relief action was barred by res judicata. Crooked Creek’s remaining four points assert trial error in finding the cross-claim against EHP was barred, trial error in concluding Siegmund was not subject to the tie-on fees based on estoppel, trial error in finding the City did not breach its agreement with Crooked Creek in entering into a dismissal compromising Crooked Creek’s right to tie-on fees, and trial error in finding that the counterclaim against the City for quantum meruit was without merit. The City asserts trial error in finding a contract exists between Crooked Creek and the City.
Standard of Review
This case comes to this court by a petition for review. When this court grants a petition to review a decision by the court of appeals, this court reviews the appeal as if it had been originally filed in this court. Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002).
This case was decided partially on summary judgment and partially by bench trial. Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Spears v. City of Fordyce, 351 Ark. 305, 92 S.W.3d 38 (2002); Baldridge v. Cordes, 350 Ark. 114, 85 S.W.3d 511 (2002). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact. Spears, supra. In bench trials, the standard of review on appeal is not whether there is any substantial evidence to support the finding of the court, but whether the judge’s findings were clearly erroneous or clearly against the pre ponderance of the evidence. Reding v. Wagner, 350 Ark. 322, 86 S.W.3d 386 (2002).
Res Judicata
We must first consider the effect of an order dismissing the action by EHP against the City that both dismisses the case without prejudice, and also purports to provide judicial sanction to an agreement by the parties that the ordinances passed by the City to collect tie-on fees do not apply to EHP’s property. The question presented is whether the language purporting to provide judicial sanction to the agreement of the parties is to be given res judicata effect where the order dismisses the case without prejudice.
In JeToCo Corp. v. Hailey Sales Co., 268 Ark. 340, 596 S.W.2d 703 (1980), this court stated:
Res judicata means a thing or matter that has been definitely and finally settled and determined on its merits by the decision of a court of competent jurisdiction. Knutson v. Ekren, supra. Freely translated, it means “the matter has been decided,” Hastings v. Rose Courts, Inc., 237 Ark. 426, 373 S.W.2d 583. See also, Hammond v. State, 244 Ark. 186, 424 S.W.2d 861, cert. den. 393 U.S. 839 (1968).
JeToCo, 268 Ark. at 346.
However, the law is well settled that a dismissal without prejudice is not an adjudication on the merits and will not bar a subsequent suit on the same cause of action. Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001); Magness v. McEntire, 305 Ark. 503, 808 S.W.2d 783 (1991); Benedict v. Arbor Acres Farm, Inc., 265 Ark. 574, 579 S.W.2d 605 (1979); Forschler v. Cash, 128 Ark. 492, 194 S.W. 1029 (1917).
Where a dismissal is with prejudice, it is conclusive of the rights of the parties as if the suit had been prosecuted to a final adjudication adverse to the plaintiff. Hicks v. Allstate Ins. Co., 304 Ark. 101, 799 S.W.2d 809 (1990); (quoting Union Indem. Co. v. Benton County Lumber Co., 179 Ark. 752, 18 S.W.2d 327 (1929)). The words “with prejudice,” when used in an order of dismissal, “have a definite and well known meaning; they indicate that the controversy is thereby concluded.” Harris v. Moye’s Estate, 211 Ark. 765, 767, 202 S.W.2d 360 (1947).
The order plainly states that the cause of action is dismissed without prejudice. The controversy was not concluded by the order. Therefore, the order is not an adjudication on the merits and will not support a plea of res judicata. EHP, however, asserts that the order is more than a dismissal because it contains the agreement of the parties in settling the dispute. As the court of appeals stated in Brandon v. Arkansas Western Gas Co., 76 Ark. App. 201, 61 S.W.3d 193 (2001), “Res judicata will apply to a settlement agreement after it is approved by the court and the case is dismissed with prejudice.” Brandon, 76 Ark. App. at 210.
EHP also argues that the order on the dismissal should be construed to be a consent judgment. A consent judgment is a judgment sanctioned by the court, but one that is comprised of terms and provisions agreed to by the parties. Selig v. Barnett, 233 Ark. 900, 350 S.W.2d 176 (1961). Consent excuses error and ends all contention between the parties. Vaughan v. Brown, 184 Ark. 185, 40 S.W.2d 996 (1931); (citing Schmidt v. Oregon Gold Mining Co., 28 Ore. 9, 40 Pac. 406 (1895)). It leaves nothing for the court to do, but to enter what the parties have agreed upon, and when so entered, the parties themselves are concluded. Id. However, as already discussed, the order provides that the cause of action was dismissed without prejudice. We also note that EHP’s motion was captioned, “Motion for Nonsuit.” Therefore, the contention between the parties was not concluded by the order, and the order could not be a consent judgment.
Finally, Crooked Creek has moved for costs on appeal. Costs on appeal are largely within the sound discretion of the reviewing court. Grable v. Grable, 307 Ark. 410, 821 S.W.2d 16 (1991). The motion for costs is granted in the amount of $2322.90.
Reversed and remanded.
Corbin, J., not participating. | [
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WH. “Dub” Arnold, Chief Justice.
This appeal arises ticpersonal-injury e. arising out of an alleged electrical shock at a Kroger store in Dewitt, Arkansas, in August 1997. The case was tried before a jury on January 22, 2002, which resulted in a unanimous defense verdict. In this appeal, appellants do not question anything about the trial, evidence, rulings of the trial court, the jury verdict, or the sufficiency of the evidence in support of the defense verdict. Rather, appellants’ sole ground for appeal is whether the trial court committed reversible error in failing to disqualify appellee Kroger’s counsel on the basis of a September 19, 2001, letter concerning settlement negotiations. In that letter, appellee expressed a desire to continue negotiating, but would do so only if appellants withdrew a motion for sanctions which was based upon an order compelling discovery, which appellee argues it never received. There was a hearing on the matter on September 25, 2001, but the trial court did not rule on the motion to disqualify at that time. Appellants renewed the motion to disqualify on the morning of trial, and the trial court denied the motion.
Appellants argue that during attempts to settle this case before trial, appellee took the position that it would not settle with appellants unless and until appellants withdrew a motion for sanctions which was filed based upon appellee’s failure to timely answer discovery demands. Appellants state that while appellee, at times, tried to refute the fact that it had received communications relative to the same and the trial court’s order in regards to the same, appellee had filed replies and made responses that indicated that it had received the materials. Appellants assert that the difficulty in this case is based upon the fact that a motion to disqualify appellee’s counsel was filed by appellants after appellee’s counsel personally integected himself into the litigation by taking certain matters personally, rather than professionally, and decided that not only would the instant matter not be settled, but that in the future other cases that he might have with appellants’ counsel would also be subject to “non-settling,” based on appellee’s counsel being upset by the filing of the motion to compel.
Appellants contend that the conduct of appellee’s counsel went beyond zealous representation, and became personal conduct with a “vent of personal animus that went beyond the bounds of the authorized and desired practice of law.” Appellants assert that appellee’s counsel should have been disqualified from this matter based upon the conduct that appears to violate the Model Rules of Professional Conduct in that counsel was placing his own personal interest into the matter. Appellants contend that when counsel becomes personally involved in a matter where judgment is likely to be clouded or he has an interest in the matter, the same should recuse or be disqualified. Model Rule of Professional Conduct 1.7. According to appellants, appellee’s counsel allowed himself to become personally involved due to the terms of his letter, pleadings, and comments in regard to the problems appellants perceived in this matter. Based on all of the above, appellants state that appellee’s counsel should have removed himself from this matter, and when that did not occur, the trial court should have disqualified appellee’s counsel. Appellants assert that the trial court committed error relative to this matter by not removing appellee’s counsel. Seeco, Inc. v. Hales, 334 Ark. 134, 969 S.W.2d 193 (1998); American Carriers Inc. v. Kroger, 302 Ark. 86, 787 S.W.2d 669 (1990).
Appellants argue that, based on the above, this court should enter an order reversing this matter and directing that appellee’s counsel be disqualified, and that this matter should be restored to the trial court’s calendar. Otherwise, the prohibitions and sanctions relative to the Model Rules of Professional Conduct violations will not be perceived by appellee and appellee’s counsel to have any “teeth” or remedy, and any violations that occur will not and cannot be otherwise addressed. We disagree and affirm the trial court.
Appellants do not provide this court with any factual basis or legal authority for the proposition that Kroger’s counsel should have been disqualified. The only evidence having any bearing on the motion to disqualify is a September 19, 2001, letter from appellee’s counsel to appellants’ counsel. That letter expressed appellee’s desire to continue settlement negotiations, provided that appellants’ counsel withdraw a motion for sanctions which was based upon an order compelling discovery, which appellee’s counsel states he never received.
Furthermore, appellants do not show how appellee’s counsel placed his personal interests over the interests of his client. The jury verdict attests to the fact that appellee’s counsel adequately looked after the interests of Kroger, and the trial of the case went forward without any problems. Appellants do not allege any defect or irregularity in any phase of the trial, argument or conduct of counsel, the introduction of evidence, or the sufficiency of the evidence.
This is not a situation where there is a conflict of interest, former representation, or even the appearance of impropriety. Appellants do not allege any former relationship or representation by appellee’s attorney or his firm; rather, the record in this appeal contains one letter that referenced a settlement offer and a desire to continue negotiating, but requested that appellants withdraw a baseless motion for sanctions as a prelude to further negotiations. This letter evidences no personal animus or how such animus, even if true, was prejudicial to the fair and impartial administration of justice.
This court has stated:
Disqualification is an absolutely necessary measure to protect and preserve the integrity of the attorney-client relationship; yet it is a drastic measure to be imposed only where clearly required by the circumstances. We must never forget that a disqualification, though aimed at protecting the soundness of the attorney-client relationship, also interferes with, or perhaps destroys, a voluntary relationship by depriving a litigant of counsel of his own choosing oftentimes affecting associations of long standing. The role of the court is to balance the current client’s right to counsel of choice with the former client’s right to protection of confidences transmitted, or likely to have been acquired, during the prior representation.
Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990). Therefore, disqualification would be appropriate in a case where appellee’s counsel or firm has had a former relationship with appellants, and this is not the case here and has not even been alleged. Thus, this is not a conflict of interest or situation where appellee’s counsel or his firm obtained confidential or proprietary information from appellants.
Appellee further submits that it has been required to go to the time and expense of defending this frivolous appeal in a motion for sanctions before this court. Appellee contends that this appeal has been prosecuted with absolutely no factual or legal support, and for these reasons and pursuant to Rule 11 of the Rules of Appellate Procedure — Civil, it filed a motion for sanctions for the imposition of costs and a reasonable attorney’s fee to be assessed against appellants’ counsel personally. We agree, and grant appellee’s motion for sanctions.
A review of this case confirms that there is no violation of any of the Model Rules of Professional Conduct by appellee’s counsel. Further, there is no factual or legal support for this appeal. For these reasons, sanctions are appropriate and are assessed against appellants’ counsel, personally. Appellee certified that it took ten hours to review the record, conduct research, draft and finalize its appeal brief in this case. Appellee’s counsel’s hourly fee is $150.00; therefore $1,500.00, plus costs, is assessed against appellants’ counsel to be paid to appellee.
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Donald L. Corbin, Justice.
This case involves a dispute stice. election. Appellants Fannie Fields, Annetta Carruth, Casey Cox, Loretta Jarrett, and Willie Spriggs appeal the order of the Pulaski County Circuit Court, declaring that the positions that they had filed for as candidates on the Marvell School Board were not open for election. On appeal, they argue that the trial court erred in determining that the school district was not required to elect an entirely new school board in compliance with Ark. Code Ann. § 6-13-631 (Repl. 1999). As this is an appeal involving an issue of statutory construction, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b) (6). We find no error and affirm.
Appellee Marvell School District previously elected its school board via an at-large election system. Because its black voting-age population totaled 53.04% after the 1990 decennial census, the District, pursuant to section 6-13-631, changed to a zone-election system, meaning that five of the seven board members were elected from zoned districts, while the remaining two members were elected at-large. According to section 6-13-631(b)(2), each zone must have a “substantially equal population” and have boundaries based on the most recent federal decennial census information. Section 6-13-631 (e) also requires that after a new school board is elected, the members must draw lots to determine the length of their terms, so that no more than two positions are open for election at the same time. This has been the election method for the school district’s board members since 1994.
The 2000 decennial census showed that the district’s black voting-age population was 54.87% and that zones one, two, and three had a black majority population, just as they did in the previous census. The school district hired Dr. David England, a demographer at Arkansas State University, to review its election zones and determine if the school district still remained in compliance with section 6-13-631 and the Voting Rights Act of 1965. Dr. England had drafted a report for the district in 1994 in order to bring it into initial compliance with the requirements of section 6-13-631.
According to Dr. England’s 2000 report, Marvell School District remained in compliance because it maintained a plan for five single-member zones as required by section 6-13-631. Because the 2000 census information revealed a population change in zones three and four, Dr. England recommended realigning those two zones by shifting their boundary line by approximately one block. The population change was the result of construction of a housing project in zone four. After Dr. England’s study was complete, the board voted to adopt his plan, which thereby resulted in the adjustment of the boundary line separating zones three and four. Black voters, however, continued to be in the majority in three of the five single-member zones, specifically zones one, two, and three. Thereafter, on May 21, 2002, the District sent a letter to the Arkansas Department of Education, stating that it was in compliance with the requirements of the section 6-13-631.
In August 2002, Appellants filed as candidates for unexpired positions on the District’s board of directors. Only one of the incumbents, running for the open at-large position, filed as a candidate. Each Appellant was certified by the Phillips County Election Commission as candidates to be placed on the September 17, 2002 ballots. Thereafter, the District filed a lawsuit seeking a temporary restraining order or preliminary injunction to prevent Appellants from appearing on the ballot, because it was the District’s contention that the only seat open for election was one at-large position with an expired term.
A hearing was held in the circuit court on September 6, 2002. Testifying at this hearing was Ulicious Reed, superintendent of the school district. Fie testified that the school district continues to operate under a desegregation order from 1971. He stated that although the school was now fully integrated, it had to continue to monitor student placement because of a decrease in student enrollment, particularly of white students. He also testified that the election procedures instituted in 1994, pursuant to section 6-13-631, brought the district into compliance with the Voting Rights Act. Reed further testified that it was the school district’s position that there was only one school board seat open for election.
Appellants took the position at this hearing that section 6-13-631 required the election of an entirely new school board after the district rezoned. The school district asserted that it was exempt from the requirements of section 6-13-631 because it met two exceptions set forth in the statute, namely that it was operating under a desegregation order and that it was in compliance with the Voting Rights Act.
After considering the testimony and arguments of counsel, the trial court ruled that the school district was in compliance with the Voting Rights Act, as well as the court’s desegregation order of 1971. The court further ruled that there was only one position on the board open for election. In a subsequent written order, dated September 11, 2002, the trial court reiterated its finding that section 6-13-631 did not require the school district to elect an entirely new school board because it was still operating under a federal desegregation order, was in compliance with the Voting Rights Act, and was in compliance with the requirements of section 6-13-631. The order directed the county clerk to count only those votes cast for the at-large position.
Appellants filed an appeal of the trial court’s order with this court on the same day as the trial court’s written order was filed. Appellants sought a writ of certiorari and a stay of the election scheduled for September 17. In a per curiam opinion, this court denied the writ and motion on the basis that this court did not have the authority to enjoin a regularly scheduled election. See Fields v. Plegge, 350 Ark. 57, 84 S.W.3d 446 (2002). This appeal followed.
Appellants raise only one point on appeal. They argue that the trial court erred in its interpretation of section 6-13-631. Specifically, Appellants argue that a plain reading of the statute reveals that a new school board must be elected any time a district engages in rezoning of its boundaries, as did Marvell School District in the present case. The school district counters that it is exempt from the provisions of section 6-13-631, because it is in compliance with the Voting Rights Act, as it already has a zone-elected board of directors. It claims an additional exemption based on the fact that it was operating under a 1971 federal desegregation order. We agree with the school district.
We review issues of statutory interpretation de novo, as it is for this court to decide what a statute means. Clayborn v. Bankers Standard Ins. Co., 348 Ark. 557, 75 S.W.3d 174 (2002); Fewell v. Pickens, 346 Ark. 246, 57 S.W.3d 144 (2001). In this respect, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Harris v. City of Little Rock, 344 Ark. 95, 40 S.W.3d 214 (2001); Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000).
Section 6-13-631 provides in relevant part as follows:
(a) Beginning with the 1994 annual school election, the qualified electors of a school district having a ten percent (10%) or greater minority population out of the total population, as reported by the most recent federal decennial census information, shall elect the members of the board of directors as authorized in this section, utilizing selection procedures in compliance with the federal Voting Rights Act of 1965, as amended.
The statute then sets forth a method for electing a brand new school board from five zoned districts, with two at-large positions. Once the new school board is elected, each member must draw lots to determine the length of his or her term; thus, preventing more than two seats being up for election at the same time.
The statute further provides:
(f)(1) After each federal decennial census and at least ninety (90) days before the annual school election, the local board of directors, with the approval of the controlling county board of election commissioners, shall divide each school district having a ten percent (10%) or greater minority population into single-member zones. The zones shall be based on the most recent federal decennial census information and substantially equal in population.
(2) At the annual school election following the rezoning, a new school board shall be elected in accordance with procedures set forth in this section.
In subsection (g)(1), however, school districts meeting any of the following criteria are specifically exempted from the provisions of this section:
(A) A school district that is currently operating under a federal court order enforcing school desegregation or the federal Voting Rights Act of 1965, as amended;
(B) A school district that is operating under a preconsolidation agreement that is in compliance with the federal Voting Rights Act of 1965, as amended;
(C) A school district that has a zoned board meeting the requirements of the federal Voting Rights Act of 1965, as amended; and
(D) A school district that a federal court has ruled is not in violation of the federal Voting Rights Act of 1965, as amended, so long as the court order is in effect.
Thus, there are clear exemptions that allow a school district to deviate from the requirements of section 6-13-631. The 1971 federal desegregation order was introduced at trial, and Superintendent Reed testified that the school was still operating under that order. Specifically, he stated that they constantly monitored student placement. Fie also testified that he sends reports to the federal court when requested and recently submitted a recruitment report. Dr. England’s report stating that the school district was in compliance with the Voting Rights Act because it elected its school board members from zoned districts was also introduced at the hearing. Appellants produced no evidence to dispute the fact that these two exceptions applied in this case.
Appellants now assert that it is absurd for the school district to claim that it is entitled to exemptions when it took the action of hiring someone to study the population information and undertake a rezoning as the statute requires. According to Appellants, because the school district took the action of rezoning it is now required to comply with the remainder of the statute and hold a new school board election as set forth in section 6-13-631(f) (2). Appellants, however, failed to raise this argument before the trial court. Likewise, Appellants did not argue below that the school district’s act of rezoning constituted a waiver of any claimed exemption. It is well settled that this court will not consider arguments raised for the first time on appeal. See, e.g., Arkansas Blue Cross & Blue Shield v. Hicks, 349 Ark. 269, 78 S.W.3d 58 (2002); Laird v. Shelnut, 348 Ark. 632, 74 S.W.3d 206 (2002).
We agree with the trial court’s determination that the school district meets the exception set out in section 6-13-631(g)(1)(A), as operating under the 1971 federal desegregation order, as well as the exception set forth in subsection (g)(1)(C), having a zoned school board meeting the requirements of the Voting Rights Act. Accordingly, we cannot say that the trial court erred in determining that the only seat open for election on the September 17 ballot was the one expired at-large position.
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Annabelle Clinton Imber, Justice.
The instant matstice. interlocutory appeals by Appellant U.S. Bank, N.A., stemming from a Rule 23 class-action proceeding. In conjunction with this matter, a motion to dismiss U.S. Bank’s appeal was filed in this court by Appellee Wilma Mil-burn. Because no appeal is properly before us, we must dismiss this set of interlocutory appeals, thereby rendering Milburn’s motion to dismiss appeal moot.
Rosslare Funding, Inc., made loans to several individuals. Empire Funding Corporation bought the loans from Rosslare and pooled them together. Empire then transferred the pooled loans into trusts with U.S. Bank named as trustee. Empire sold interests in the pooled loan trusts to investors. U.S. Bank as trustee received and distributed the loan collections to the investors.
The loans Rosslare sold to Empire became the subject of a class-action lawsuit filed by Wilma Milburn in Greene County Circuit Court on August 20, 1998. The original complaint alleged usury, Truth in Lending Act (TILA)/Home Ownership and Equity Protection Act (FIOEPA), and common-law fraud claims against several defendants including Rosslare and Empire. On September 21, 1998, the case was removed to federal court where it remained until April 2, 1999, when the case was remanded to state court. In late 1999 and early 2000, Milburn filed motions for class certification on the usury and fraud claims pursuant to Arkansas Rule of Civil Procedure 23. She also filed a motion for partial summary judgment on the usury claims contending that Arkansas law should apply to the loans. Empire responded with its own motion for summary judgment on the choice-of-law issue.
On April 20, 2000, Milburn filed a third amended complaint that named additional defendants, including U.S. Bank, N.A., individually and as trustee for certain loan trusts created by Empire. Shortly thereafter, Empire filed for bankruptcy under Chapter 11 of the U.S. Bankruptcy Code. A hearing on the motions for class certification and summary judgment originally set for June 12, 2000, was postponed until June 8, 2001. In the interim, U.S. Bank filed responses to Milburn’s class-certification and summary-judgment motions. At the June 8, 2001 hearing, U.S. Bank objected to the court hearing arguments on Milburn’s summary-judgment motion because her motion was not filed against U.S. Bank. Both parties agreed that the summary-judgment motion regarding the choice of law was the “core issue” in the case and that it would be generally dispositive of the merits. The court proceeded to hear the arguments on the issues of class certification and summary judgment. Milburn argued that Arkansas law should apply and thus the loans originating with Rosslare were usurious, while U.S. Bank argued that California law should apply, thereby rendering the interest on the loans below the legal maximum. After the hearing, in an order entered on June 11, 2001, the circuit court certified the class pursuant to Rule 23 of the Arkansas Rules of Civil Procedure. Milburn then filed a motion for approval of the class-action notice on July 17, 2001.
Meanwhile, the circuit court had deferred ruling on Mil-burn’s summary-judgment motion and allowed the parties to file additional briefs on the choice-of-law issue. After U.S. Bank and Milburn filed their respective briefs, the circuit judge sent a letter to counsel on July 30, 2001, advising them that “the court . . . hereby finds for the plaintiff in its Motion for Summary Judgment. It is the court’s belief that Arkansas law should be applied in this case.” Counsel for Milburn was directed to prepare the precedent for an order.
On that same day, the circuit judge signed an order approving the class-action notice, which order was filed on August 1, 2001. The notice advised each class member that the court would exclude the member from the class only if the member so requested within 20 days of the date of the notice. Subsequently, the notice was sent to each class member at his or her last known address in successive mailings on August 3, 2001, and August 9, 2001.
On August 23, 2001, which was twenty days after the first mailing of the class-action notice, the circuit court entered partial summary judgment in favor of Milburn. In its order, the court ruled that Arkansas law applied; and, thus, the mortgage loans were usurious. U.S. Bank’s local counsel then filed a motion to be relieved as counsel, which the court granted on September 6, 2001. In the meantime, U.S. Bank had hired new counsel who filed a notice of appeal on September 4, 2001, designating an appeal from three separate orders: (1) the class-certification order; (2) the order approving the class-action notice; and (3) the order granting partial summary judgment. Also, on September 4, U.S. Bank filed a motion requesting reconsideration of the class-certification and partial summary-judgment orders. The motion asked the court to decertify the class, or in the alternative, to set aside the summary judgment, because Milburn obtained partial summary judgment on the merits of the issues in the case prior to completion of notice to the class.
On September 7, 2001, an order was entered appointing the Circuit Clerk of Greene County to act as a receiver, and directing U.S. Bank to pay all principal and interest received from the members of the class into the registry of the court during the pendency of this action. Milburn objected to U.S. Bank’s September 4 notice of appeal and on September 17, 2001, filed a motion to dismiss the appeal for lack of jurisdiction. We deferred ruling on the motion until the submission of this appeal. U.S. Bank filed another notice of appeal on October 9, 2001, designating an appeal from the order appointing a receiver. See Ark. R. App. P. — Civ. 2(a)(7) (2002). The record was subsequently filed in this court on December 3, 2001.
In its original brief filed on January 22, 2002, U.S. Bank raised four separate points on appeal and requested oral argument. However, the fourth point, which challenged the circuit court’s entry of partial summary judgment, was abandoned in the reply brief filed by U.S. Bank on April 16, 2002. U.S. Bank has therefore recognized that the partial-summary-judgment order is not a final order, and, thus, not properly appealable.
At oral argument, U.S. Bank’s counsel conceded that the notice of appeal was untimely with respect to the class-certification order and the order approving class notice. Moreover, counsel for the bank admitted that at the time the orders were entered, there was no fundamental error. Nonetheless, while recognizing in its reply brief and at oral argument that the partial summary-judgment order was not a final appealable order, U.S. Bank contends that the entry of partial summary judgment on August 23 “impacted” the prior orders, thereby subsuming or bootstrapping those orders into the partial summary-judgment order. Under the so-called “impact theory” proposed by U.S. Bank, an order may become appealable at a later time when subsequent facts develop relating to that order. Thus, U.S. Bank suggests that the class-certification and class-action notice orders became appealable on August 23 when Milburn’s motion for partial summary judgment was granted and entered of record. In other words, August 23 became the date from which to calculate the deadline for filing a timely notice of appeal with respect to the earlier class-certification and class-action notice orders. We decline to adopt the “impact theory” suggested by U.S. Bank.
The jurisdiction of this court depends upon the calculation of filing deadlines pursuant to the Arkansas Rules of Appellate Procedure-Civil. The relevant dates in this case are as follows:
June 11, 2001 Class-certification order entered
August 1, 2001 Order approving class-action notice entered
August 23, 2001 Partial-summary-judgment order entered
September 4, 2001 U.S. Bank filed its notice of appeal from the following orders: (1) class-certification order; (2) order approving class-action notice; and (3) order granting partial summary judgment.
September 4, 2001 U.S. Bank filed its motion for reconsideration of class certification and partial summary judgment
September 7, 2001 Order appointing receivership entered
October 9, 2001 U.S. Bank filed its notice of appeal from the order appointing receiver
October 9, 2001 U.S. Bank filed its motion to reconsider order appointing receiver
December 3, 2001 Record filed with the Supreme Court Clerk
Class-Certification Order
U.S. Bank’s notice of appeal filed on September 4, 2001, designated the original class-certification order as an appealable order. That order was entered on June 4, 2001. Pursuant to Rule 2(a)(9) of the Arkansas Rule of Appellate Procedure — Civil, the class-certification order was immediately appealable. U.S. Bank therefore had thirty days from the entry of the order on June 11, 2001, to file a timely notice of appeal. See Ark. R. App. P. — Civ. 4(a) (2002). The notice of appeal filed on September 4, 2001, or almost three months after entry of the order, was clearly outside the prescribed thirty-day period.
Initially, in response to Milburn’s motion to dismiss appeal, U.S. Bank argued that the class-certification order was an intermediate order to the August 23 partial summary-judgment order. Rule 2(b) of the Arkansas Rules of Appellate Procedure— Civil provides that “[a]n appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment.” See Ark. R. App. P. — Civ. 2(b) (2002). That argument, however, has been abandoned. As we have already stated, U.S. Bank concedes that the partial summary-judgement order is not a final order. Appellate Rule 2(b) is therefore not applicable.
The deadline for filing a notice of appeal that is set forth in Ark. R. App. P. — Civ. 4(a) — thirty days from the entry of the order appealed from — may be extended under the provisions of Ark. R. App. P. — Civ. 4(b):
(b) Extension of time for filing notice of appeal.
(1) Upon timely filing in the circuit court of. . . any . . . motion to vacate, alter or amend the judgment made no later than 10 days after entry of judgment, the time for filing a notice of appeal shall be extended for all parties. The notice of appeal shall be filed within thirty (30) days from entry of the order disposing of the last motion outstanding. However, if the circuit court neither grants nor denies the motion within thirty (30) days of its filing, the motion shall be deemed denied by operation of law as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from that date.
Ark. R. App. P. — Civ. 4(b)(1) (2002). Additionally, if a notice of appeal is filed prior to the disposition of the motion, a party who seeks to appeal from the denial of the motion shall within thirty days amend the previously filed notice of appeal. Ark. R. App. P— Civ. 4(b)(2) (2002).
First we must point out that U.S. Bank’s motion for reconsideration was not filed within ten days of the class-certification order as required by appellate Rule 4(b). Thus, as to any appeal from the June 11 class-certification order, the time for filing a notice of appeal was not extended by the timely filing of any of the motions fisted in Ark. R. App. P. — Civ. 4(b)(1), and the deemed-denied rule is not applicable.
While the notice of appeal filed on September 4 was untimely with respect to the class-certification order, U.S. Bank could have appealed the denial of its motion for reconsideration by filing a notice of appeal within thirty days from the entry of such an order. Yet, the record does not reflect any such ruling by the court, or the filing of a notice of appeal that designated the order appealed from as the denial of U.S. Bank’s motion for reconsideration. See Ark. R. App. P. — Civ. 3(e) (2002). In any event, U.S. Bank admits that no appeal was taken from any ruling by the circuit court on its motion for reconsideration.
The timely filing of a notice of appeal is jurisdictional. Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995). Thus, this court lacks jurisdiction to address U.S. Bank’s point on appeal challenging the class-certification order.
Approval of Class-Action Notice
Our rules of appellate procedure allow an interlocutory appeal from “[a]n order granting or denying a motion to certify a case as a class action in accordance with Rule 23 of the Arkansas Rules of Civil Procedure.” Ark. R. App. P. — Civ. 2(a)(9) (2002). We have held that an order prescribing notice to class members is fundamental to the further conduct of the action and, thus, immediately appealable as a matter of right. See Union Nat'l Bank v. Barnhart, 308 Ark. 190, 823 S.W.2d 878 (1992). Such an interlocutory appeal must be filed within thirty days from entry of the order. Ark. R. App. P. — Civ. 4(a) (2002).
In this case, the order approving class-action notice was entered on August 1, 2001, so the deadline for filing a notice of appeal was Friday, August 31, 2001. Once again, the notice of appeal filed on September 4, 2001, was clearly outside the prescribed thirty-day deadline. For the reasons previously stated in connection with U.S. Bank’s attempted appeal of the class-certification order, we conclude that the bank’s appeal from the order approving the class-action notice is not properly before this court.
Order Appointing Receiver
For its third point on appeal, U.S. Bank argues that the circuit court erred in appointing a receiver pursuant to Ark. R. Civ. P. 66(a) (2002). We start by noting that an interlocutory order appointing a receiver is immediately appealable. See Ark. R. App. P. — Civ. 2(a)(7) (2002). However, U.S. Bank failed to timely file its record with our clerk. The untimely filing of the record procedurally bars the appellant from pursuing an appeal. See Mitchell v. City of Mountain View, 304 Ark. 585, 803 S.W.2d 556 (1991) (per curiam). On September 7, 2001, the circuit court entered an order directing the circuit clerk to act as a receiver in this case. U.S. Bank filed a timely notice of appeal on October 9, 2001. Appellate Rule 5(a) provides that when “an appeal is taken from an interlocutory order under Rule 2(a)(6) or (7), the record must be filed with the clerk of the Supreme Court within thirty (30) days from the entry of such order.” Ark. R. App. P. — Civ. 5(a) (2002) (emphasis added).
The instant interlocutory order appointing a receiver was entered on September 7, 2001. Thus, the deadline for filing the record was October 9, 2001, which happened to be the same day that U.S. Bank filed its notice of appeal. U.S. Bank did not file the record with this court until December 3, 2001. By failing to timely file the record, U.S. Bank is barred from pursuing this point on appeal.
Request for Sanctions Under Appellate Rule 11
At oral argument, Milburn’s counsel asked this court to sanction U.S. Bank pursuant to Rule 11 of the Arkansas Rules of Appellate Procedure — Civil:
I think the act of claiming this to be a final judgment has caused me and my client considerable harm in this case . . . [T]he final order never was a final order and they knew it. Everybody knew it, and they admitted it. They admitted it as soon as they filed the notice of appeal. They were back before the trial court contending it was not a final order because it did not determine damages. Of course, it never determined them. It was not certified as a final order. ... I ask this court not to permit these defendants, because of the manner in which they brought this appeal up, to raise . . . any issue in the future litigation that they didn’t raise in this litigation. I ask the court to award costs for having to respond to an argument ....
U.S. Bank’s counsel responded by suggesting that such a request would require that a motion be filed in order for there to be an opportunity for presentation of a full explanation by both sides.
Appellate Rule 11 provides in relevant part:
(b) The Supreme Court or the Court of Appeals shall impose a sanction upon a party or attorney or both for (1) taking or continuing a frivolous appeal or initiating a frivolous proceeding, (2) filing a brief, motion, or other paper in violation of subdivision (a) of this rule, (3) prosecuting an appeal for purposes of delay in violation of Rule 6-2 of the Rules of the Supreme Court and Court of Appeals, and (4) any act of commission or omission that has an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. For purposes of this rule, a frivolous appeal or proceeding is one that has no reasonable legal or factual Basis.
Ark. R. App. P. — Civ. 11(b) (2002). Sanctions that may be imposed for violation of this rule are identified in Ark. R. App. P— Civ. 11(c):
(c) Sanctions that may be imposed for violations of this rule include, but are not limited to, dismissal of the appeal; striking a brief, motion, or other paper; awarding actual costs and expenses, including reasonable attorneys’ fees; imposing a penalty payable to the court; awarding damages attributable to the delay or misconduct; and, where there has been delay, advancing the case on the docket and affirming.
Ark. R. App. P. — Civ. 11(c) (2002). If this court on its own initiative determines that a sanction may be appropriate, a show-cause order may be issued. Ark. R. App. P. — Civ. 11(d) (2002).
In the instant matter, as already noted, U.S. Bank filed its notice of appeal on September 4, 2001 from (1) the class-certifica tion order; (2) the order approving the class-action notice; and (3) the order granting partial summary judgment. Then, in a pleading filed with the circuit court on September 6, 2001, U.S. Bank states, “[t]here has been no proof of fraud or insolvency on the part of US Bank that would endanger its capacity to respond to any final judgment which may be entered in this case.” In that same pleading opposing the appointment of a receiver, U.S. Bank states, “[t]he holders of beneficial interests in the trusts, of which US Bank is trustee, will be damaged if a receiver is appointed, since they will not receive the payments they contracted for, even though monetary judgement on each claim has not been entered.” In a memorandum filed on the same day, U.S. Bank asserts that “[t]here is no danger that it is going to hide its assets to put them beyond reach of a final judgment” and that “the Plaintiffs will not be losing anything by continuing their payments as before, but that the trust beneficiaries would be; all this before a final determination of the amounts that might be due.”
On September 27, 2001, Milburn filed a motion to dismiss the appeal in this court. In that motion, Milburn alleges that the notice of appeal is untimely with respect to the class-certification order and the order approving the class-action notice. Milburn also asserts in her motion that the appeal from the partial summary-judgment order should be dismissed, as that ruling by the circuit court is not a final order, and it was not certified as final pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure. U.S. Bank responded to the motion, contending first that the partial summary-judgment order was final because the only remaining issues were “collateral and ministerial.” Moreover, U.S. Bank suggested that both the class-certification order and the order approving the class-action notice were appealable as intermediate orders. Finally, in its reply brief filed on April 26, 2002, U.S. Bank conceded that the partial summary-judgment order is not a final appealable order. However, U.S. Bank continued to assert its “impact theory” as a basis for the appeal.
In order for a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992). We have on numerous occasions held that a judgment or order is not final and appealable if the issue of damages remains to be decided. Sevenprop Assoc. v. Harrison, 295 Ark. 35, 746 S.W.2d 51 (1998); John Cheeseman Trucking, Inc. v. Dougan, 305 Ark. 49, 805 S.W.2d 69 (1991); Mueller v. Killam, 295 Ark. 270, 748 S.W.2d 338 (1998); Kilgore v. Viner, 293 Ark. 187, 735 S.W.2d 1 (1987).
Delivered April 10, 2003
From the record before this court, it appears that U.S. Bank was arguing on appeal that the partial summary-judgment order was final, while at the same time arguing in the circuit court that no final order had been entered. Additionally, Milburn, through her motion to dismiss the appeal, notified U.S. Bank as early as September 17, 2001, that the appeal was not properly before this court. Because U.S. Bank continued to prosecute the instant appeal, we conclude that sanctions may be appropriate. Pursuant to Ark. R. App. P. — Civ. 11(d), we order U.S. Bank and its counsel to show cause in writing why a sanction should not be imposed against them. Such writing shall be filed no later than seven days after the date of this opinion. If U.S. Bank files a writing, Milburn shall have four days to respond.
Appeal dismissed; motion to dismiss appeal moot.
Supplemental Opinion Imposing Rule 11 Sanctions
100 S.W.3d 674
The Rose Law Firm, by: Herbert C. Rule III, Garland Garrett, and Stephen-Joiner, for appellant.
Joe Holifield and McMath, Vehik, Drummond, Harrison & Lebdetter, P.A., by: Mart Vehik, for appellee.
Per Curiam. 28,
In this appeal, we issued our opinion on February 28, 2003, wherein we dismissed a set of interlocutory appeals by U.S. Bank stemming from a Rule 23 class-action proceeding. U.S. Bank v. Milburn, 352 Ark. 144, 100 S.W.3d 674. We did so because the notice of appeal filed by U.S. Bank was untimely with respect to the class-certification order and the order approving class notice, and U.S. Bank eventually conceded that the partial summary-judgment order was not a final order and, thus, not properly appealable. U.S. Bank also admitted that no appeal was taken from any ruling by the circuit court on its motion requesting reconsideration of the class-certificadon and partial summary-judgment orders. Finally, as to the appeal of an interlocutory order appointing a receiver, the untimely filing of the record procedurally barred U.S. Bank from pursuing that point on appeal.
Upon pointing out that U.S. Bank continued to prosecute the appeal, even though it appeared from the record before this court that U.S. Bank was arguing on appeal that the partial summary-judgment order was final, while at the same time arguing in the circuit court that no final order had been entered, we concluded sanctions under Rule 11 of the Arkansas Rules of Appellate Procedure — Civil might be appropriate. Pursuant to Ark. R. App. P.— Civ. 11(d), we directed U.S. Bank and its counsel to show cause in writing why a sanction should not be imposed against them, and we also allowed Milburn to respond. Both U.S. Bank and Milburn have filed their writings.
In its response to the order to show cause, U.S. Bank posits three reasons why sanctions are inappropriate. First, U.S. Bank asserts that it had a good-faith belief that the partial summary-judgment order was final and appealable. Specifically, it maintains that a trial court’s order need not always establish the amount of damages in order for the order to be final and appealable. U.S. Bank directs this court to Pledger v. Bosnick, 306 Ark. 45, 811 S.W.2d 286 (1991); Ives Trucking Co. v. Pro Transportation, 341 Ark. 735, 19 S.W.3d 600 (2002); Hartwick v. Hill, 77 Ark. App. 185, 73 S.W.3d 15 (2002); and Smith v. Smith, 51 Ark. App. 20, 907 S.W.2d 755 (1995). None of those cases, however, are apposite. In fact, we have on numerous occasions held that for an order to be final, it must establish the amount of damages. Tri-State Delta Chemicals, Inc., v. Crow, 347 Ark. 255, 61 S.W.3d 172 (2001); Sevenprop Assocs. v. Harrison, 295 Ark. 35, 746 S.W.2d 51 (1998); String v. Kazi, 312 Ark. 6, 846 S.W.2d 649 (1993).
The test of finality and appealability of an order is whether the order puts the court’s directive into execution, ending the litigation or a separable branch of it. Pledger v. Bosnick, 306 Ark. 45, 811 S.W.2d 286. The Pledger case was a class action in which we concluded that the order at issue was appealable where it ended all issues except the amount of attorney’s fees and the details of notice to the class of their rights to a refund. Id. The members of the class in Pledger asked for a declaration that certain provisions of the income tax laws of the state were unconstitutional, an injunction against using the funds illegally collected, a refund to the class, and attorney’s fees. The trial court’s order granted the prayer in favor of the members of the class on all of those issues. Id.
Here, the partial summary-judgment order is just what it says it is — partial. The order did not adjudicate all claims against all parties (the complaint as amended also alleged common-law fraud claims against U.S. Bank, Real Estate Title & Services, Inc., and the other defendants), and the circuit court did not certify the partial summary judgment as final pursuant to Ark. R. Civ. P. 54(b). Furthermore, Milburn’s Rule 23 class action sought relief in the form of monetary damages as provided by the usury laws of Arkansas. The partial summary-judgment order did not decide the issue of damages so as to make it enforceable by execution. In contrast, the class members in Pledger v. Bosnick sought the recovery of funds illegally collected by the State of Arkansas, not monetary damages. Likewise, as we reiterated in Ives Trucking Co. v. Pro Transportation, 341 Ark. 735, 19 S.W.3d 600, the award of attorney’s fees is a collateral matter that does not affect the appealability of the underlying order.
The Hartwick case involved a landowner’s claim to a roadway across a neighbor’s property. Hartwick v. Hill, 77 Ark. App. 185, 73 S.W.3d 15 (2002). The trial court’s order adopted the report of the viewers who had been appointed to examine the land and lay out the location of the roadway, described the location of the roadway to be granted, ordered the Hills to conduct a survey of the land to determine the precise acreage of the roadway, and established that Hartwick would incur damages in the amount of $6,000 per acre due to the loss of the land for the roadway. Id. The Arkansas Court of Appeals held that the future action contemplated by the trial court’s order (obtaining a survey reflecting the precise acreage in the roadway and applying the $6,000 per acre formula that was ordered by the court as damages) was collateral to the main issues decided by the court — that the Hills were entitled to a roadway across the Hartwick’s land and the amount of damages to be paid. Id. Unlike the order in Hartwick, the order at issue here set out no formula or specifics as to the amount of damages.
Finally, in Smith v. Smith, 51 Ark. App. 20, 907 S.W.2d 755, the Arkansas Court of Appeals correctly characterized accrual of interest on a judgment as a collateral matter. The instant case does not concern an order to pay interest on a judgment.
In sum, none of the cases cited by U.S. Bank undermine our prior holdings that a judgment or order is not final and appealable if the issue of damages remains to be decided. Tri-State Delta Chemicals, Inc. v. Crow, 347 Ark. 255, 61 S.W.3d 172; Sevenprop Assocs. v. Harrison, 295 Ark. 35, 746 S.W.2d 51; John Cheeseman Trucking, Inc. v. Dougan, 305 Ark. 49, 805 S.W.2d 69 (1991). Indeed, U.S. Bank eventually conceded that the partial summary-judgment order was not final. Accordingly, we must disagree with U.S. Bank’s assertion that it acted in good faith, when in fact it waited until the last possible moment to abandon that point on appeal.
Next, U.S. Bank asserts that it did not make inconsistent arguments before this court and the circuit court on the issue of finality. It points to three excerpts from pleadings filed in the circuit court after U.S. Bank filed its notice of appeal. However, in each of those excerpts, U.S. Bank suggests that the trial court had not entered a final judgment. The first excerpt states, “[t]here is no danger that [U.S. Bank] is going to hide its assets to put them beyond the reach of a final judgment.” In the second excerpt, U.S. Bank states that all loan payments by class members should continue to be made to U.S. Bank “before a final determination of the amounts that might be due.” Lastly, U.S. Bank directs us to the following language in its response to Milburn’s motion for receiver filed in the circuit court:
There has been no proof of fraud or insolvency on the part of U.S. Bank that would endanger its capacity to respond to any final judgment which may be entered in this case. The plaintiff, by her motion for appointment of receiver, is, in effect, seeking to levy execution before final judgment in favor of class members, establishing whatever their rights and entitlements are, has been entered.
(Emphasis added.) We find that this language is in accord with our opinion where we stated “it appears that U.S. Bank was arguing on appeal that the partial summary-judgment order was final, while at the same time arguing in the circuit court that no final order had been entered.”
For its last argument against the imposition of Rule 11 sanctions, U.S. Bank maintains it acted in good faith in proposing the so-called “impact theory” as the basis for the appeal. The bank states that making a good-faith argument and losing is not grounds for sanctions. Essentially, U.S. Bank contended on appeal that interlocutory orders — such as class-certification orders or orders approving class-action notices that are immediately appealable pursuant to Ark. R. App. P. — -Civ. 2(a)(9) •— may become appealable at a later time when the entry of any subsequent order “impacts” those prior orders. Under the “impact theory” proposed by U.S. Bank, the appeal is not from a ruling by the circuit court on the alleged “impact” of a subsequent order; rather, it is the mere assertion on appeal of such an “impact” that would automatically make a previous order appealable at any time. In other words, U.S. Bank attempted to prosecute an appeal before the circuit court had an opportunity to rule on the issue. Such a proposition is not supported by our Rules of Appellate Procedure— Civil. Moreover, our case law is clear that we will not address issues for the first time on appeal. Jones v. Jones, 347 Ark. 409, 64 S.W.3d 728 (2002). Thus, we cannot agree that U.S. Bank acted in good faith in proposing the so-called “impact theory.”
Based on the foregoing, we agree with Milburn that U.S. Bank and its counsel should be sanctioned pursuant to Ark. R. App. P. — Civ. 11. The interlocutory set of appeals prosecuted by U.S. Bank has already been dismissed. See U.S. Bank v. Mil-bum, 352 Ark. 144, 100 S.W.3d 674. In addition, we determine a fair sanction in these circumstances would be the award of costs and reasonable attorney’s fees to appellees for requiring them to go forward in defending' this appeal. See Ark. R. App. P. — Civ. 11(c), see also Stilley v. Hubbs, 344 Ark. 1, 40 S.W.3d 209 (2001); Jones v. Jones, 329 Ark. 320, 947 S.W.2d 6 (1997). Therefore, we order that U.S. Bank and its counsel pay appellees attorney’s fees in the amount of $3,000, plus costs for this appeal as provided by Ark. Sup. Ct. R. 6-7, and do so within twenty days from the issuance of this supplemental opinion.
Rule 11 sanctions issued.
Thornton and Hannah, JJ., dissent.
The other defendants are not pertinent to this appeal.
The federal court granted Milburn’s motion to dismiss the TILA / HOEPA claims without prejudice.
Milburn’s fourth amended complaint filed on February 27, 2001, identified one additional loan trust as a defendant.
In opposing Milburn’s motion, U.S. Bank requested the court to find that California law applies to the loans and U.S. Bank adopted all factual allegations and legal analysis set forth in Empire’s earlier responses.
U.S. Bank had filed no response to Milburn’s motion for approval of the class-action notice.
We note that a copy of an order entered by the circuit court on December 28, 2001, is attached as Exhibit A to U.S. Bank’s response to Milburn’s supplement to its motion to dismiss appeal. In that order, the circuit court denied U.S. Bank’s motions for reconsideration of the class-certification and partial summary-judgment orders and the order appointing a receiver.
Even under Ark. R. App. P. — Civ. 4(b)(2), if a notice of appeal is filed prior to the disposition of the motion, a party who seeks to appeal from the denial of the motion must amend the previously filed notice so as to comply with Ark. R. App. P. — Civ. 3(e).
“What is sought in an illegal-exaction case is return of taxes wrongfully collected. Relief may be an order that the taxes be refunded. A personal judgment is not entered.” Worth v. City of Rogers, 351 Ark. 183, 192, 89 S.W.3d 875, 881 (2002) (citations omitted).
With respect to the good-faith argument, U.S. Bank also asks this court to consider documents outside the record. Essentially, U.S. Bank suggests that Milburn made inconsistent arguments on the issue of finality before this court and the lower court, which caused U.S. Bank to continue prosecuting the appeal. We do not consider matters outside the record on appeal. Black v. Steenwork, 333 Ark. 629, 970 S.W.2d 280 (1998). In any event, nothing in the record indicates that Milburn argued to the circuit court that the partial summary judgment was a final order. | [
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Donald L. Corbin, Justice.
Petitioner Gary Cloird, stice. Makkali and Simba Kali, was convicted in the Jefferson County Circuit Court of the crimes of rape and theft of property, which occurred on January 25, 1992, and was sentenced to a total of thirty-five years’ imprisonment. This court affirmed his convictions and sentence in Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993) (Cloird I). Following our decision, Cloird filed a petition for postconviction relief in the trial court, pursuant to Ark. R. Crim. P. 37. The trial court dismissed the petition on the ground that it was untimely, and this court affirmed the dismissal in an unpublished opinion. See Cloird v. State, CR 95-7, slip op. (Ark. February 27, 1995) (per curiam) (Cloird II). Cloird subsequently filed a petition for a writ of habeas corpus in the Lincoln County Circuit Court, the county in which he is incarcerated. He asserted in his petition that the Jefferson County Circuit Court lacked jurisdiction to try him on the charge of rape, because the trailer where the rape occurred was actually located in Arkansas County. The trial court dismissed the petition on the ground that Cloird had not met his burden of proof. This court summarily affirmed the trial court’s ruling on the ground that Cloird’s abstract was flagrantly deficient. See Cloird v. State, 00-166, slip op. (Ark. October 11, 2001) (per curiam) (Cloird III).
Four months after our decision, Cloird filed the instant petition in this court, seeking a writ of habeas corpus, as well as permission for leave to file a petition for writ of error coram nobis in the trial court. This court has original jurisdiction to hear petitions for extraordinary writs, pursuant to Ark. Const. Amend. 80, § 2(E). See also Simpson v. Sheriff of Dallas County, 333 Ark. 211, 968 S.W.2d 614 (1998) (per curiam). We remanded the habeas matter to the trial court for a factual determination as to where the trailer in which the rape occurred was actually located. See Cloird v. State, 349 Ark. 33, 76 S.W.3d 813 (2002) (per curiam) (Cloird IV) We stated in that opinion that once the trial court made its factual determination, we would render a final disposition on the habeas matter.
On remand, the parties stipulated that the trailer in question was located at 402-A Levinson Street, in the town of Humphrey, which is situated in both Jefferson and Arkansas Counties. The parties stipulated further that the address of the trailer was in that part of Humphrey that sits in Arkansas County. Based on that stipulation, the trial court entered an order finding that the rape at the trailer occurred in Arkansas County. For the reasons set out below, we now deny the writ.
Before we reach the merits of Cloird’s jurisdiction claim, we must address the question raised by the trial court, on remand, as to why this court is entertaining Cloird’s second habeas petition after having affirmed the denial of the first habeas petition. Both the trial court and the State felt that the first affirmance was the law of the case on this issue. In Cloird IV, we explained that the doctrine of law of the case was not applicable because the issue raised in the habeas petition was lack of jurisdiction, which, we pointed out, may be raised at any time. On remand, the trial court expressed considerable concern that our holding would effectively allow the jurisdiction issue to be raised repeatedly by the same prisoner in multiple habeas petitions. We now take this opportunity to clarify our position on this issue.
The doctrine of law of the 'case ordinarily arises in the case of a second appeal and requires that matters decided in the first appeal be considered concluded. Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999). Thus, the doctrine dictates that a decision made in a prior appeal may not be revisited in a subsequent appeal. Green v. State, 343 Ark. 244, 33 S.W.3d 485 (2000). The purpose of the doctrine is to maintain consistency and avoid reconsideration of matters once decided during the course of a single, continuing lawsuit. Id. However, matters that have not been decided, explicitly or implicitly, do not become law of the case merely because they could have been decided. Camargo, 337 Ark. 105, 987 S.W.2d 680. An example of when a matter has not been decided is when it is procedurally barred from appellate review. See Colbert v. State, 346 Ark. 144, 55 S.W.3d 268 (2001); Green, 343 Ark. 244, 33 S.W.3d 485.
In Colbert, this court rejected the State’s assertion that the evidentiary issue raised by the appellant was barred by the law-of-the-case doctrine. This court explained: “Mr. Colbert was procedurally barred in his first appeal from challenging the admission of evidence that supported his simultaneous-possession conviction. Thus, because that issue was not before this court in the first appeal, it was not expressly or implicitly determined in Colbert I.” 346 Ark. at 147, 55 S.W.3d at 271 (fn 1).
Similarly, in Green, 343 Ark. 244, 33 S.W.3d 485, this court concluded that the doctrine of law of the case did not apply where, in the previous appeal, this court held that the appellant’s challenge to the trial court’s comment on a witness’s credibility was procedurally barred because the appellant failed to raise an objection at trial. This court explained:
Therefore, this court’s holding did not turn on the trial court’s comment but upon failure to preserve. The court’s decision would have been the same in the absence of the statement characterizing the trial judge’s comments. The opinion did not reach the issue of the trial court’s comment and hence was not actually decided. No adjudication took place that would bind this court now. Consequently, we hold that the law-of-the-case doctrine does not apply to this appeal.
Id. at 251-52, 33 S.W.3d at 490 (emphasis added).
Here, this court did not reach the merits of Cloird’s jurisdiction argument in the first appeal of the habeas petition. We stated that we could not decide the jurisdiction issue because Cloird had failed to supply us with the pleadings, documents, and testimony necessary to review the issue. We explained that due to the flagrantly deficient abstract, we were “unable to determine whether the trial court lacked jurisdiction over the cause of rape.” Cloird III, slip op. at 2 (emphasis added). No adjudication took place on the issue of jurisdiction that would prohibit us from considering the issue now. Accordingly, the doctrine of law of the case does not apply.
Before we leave this issue, we must address the holding in McAdams v. Automotive Rentals, Inc., 324 Ark. 332, 924 S.W.2d 464, cert. denied, 519 U.S. 1013 (1996), which runs contrary to the holdings in Colbert and Green. In McAdams, this court held that the prior appeal to this court, which was summarily affirmed due to a flagrantly deficient abstract, was the law of the case and barred relitigation of any of the issues that were or could have been addressed in the first appeal. We believe that the more sound reasoning dictates that we apply the principle set out in Colbert and Green, that the doctrine of law of the case does not bar our consideration of an issue unless there has been an adjudication of that issue in the first appeal. Accordingly, we overrule McAdams to the extent that it conflicts with this principle. We turn now to the merits of Cloird’s claim.
Cloird argues that because the rape for which he was charged occurred in Arkansas County and because he was not convicted of the charge of kidnapping that occurred at the nightclub in Jefferson County, the Jefferson County Circuit Court lacked jurisdiction to try him. To fully understand the issue, we must examine the facts of the case, which reveal a continuous criminal episode that began in Jefferson County and continued into Arkansas County.
The record reflects that on the evening of January 24, 1992, the Pine Bluff Police Department received a report that a van had been stolen from a local car dealership. Later that same evening, Barbara Smith met Kurt Morris and Roosevelt Burton at a Pine Bluff nightclub called P.J.’s. As they were leaving, Ms. Smith accepted a ride from Morris and Burton to another nightclub, called Bad Bob’s. Burton would later tell police that one of the guys he was with told him that they intended “to run a train on her.” Morris went to get the car, while Ms. Smith and Burton waited outside the club’s front door. When Morris pulled up, Burton opened the door to allow Ms. Smith to get in the backseat. Burton then surprisingly slid into the backseat next to her. Ms. Smith sensed that something was wrong, and she immediately attempted to open the other door and get out of the car. By that time, however, Morris was pulling out of the parking lot. To prevent her from getting out of the car, Burton took hold of Ms. Smith by the hair and pushed her down into the seat. Ms. Smith then began screaming.
Ms. Smith continued to scream and struggle with Burton, as Morris drove the car. At one point, Ms. Smith opened the door and attempted to jump out of the car, but the door slammed shut due to the speed that the car was traveling. Burton again took hold of her hair and pulled her back down into the seat. This time, however, Burton forced her to perform oral sex on him. When Burton became angry because she was not doing it right, Morris pulled the car off onto a dark, dirt road and stopped. The two men then took turns forcing her to have oral, vaginal, and anal sex.
They then drove from Jefferson County into that part of the city of Humphrey that is located in Arkansas County, specifically to Morris’s trailer. The two men then dragged her inside the trailer, where she was physically and sexually assaulted. Ms. Smith recounted numerous instances of rape, committed by several individuals in three different rooms of the trailer. Among those she identified as her rapists was Cloird. Throughout her confinement, Ms. Smith begged the men to let her go or take her home, but they refused. Instead, they continued to terrorize her by raping her, making her perform oral sex until she vomited, and then making her drink her own vomit. At one point, one of the men put a gun to Ms. Smith’s head and pulled the trigger. Fortunately, there was no round in the chamber. Finally, the men released Ms. Smith the next day, and Morris drove her back to the city limits of Pine Bluff and released her.
Cloird was charged by information in the Jefferson County Circuit Court’ with having committed the crimes of kidnapping, rape, and theft of property. The amended information specifically reflected that Cloird was charged as an accomplice, along with Morris, Burton, and Bobby Foster, to the crimes of rape and kidnapping. Cloird does not deny the evidence that placed him at the scene of the trailer, where Ms. Smith was held against her will and repeatedly raped. However, he asserts that there was no evidence placing him at the scene of her abduction in Jefferson County. Thus, he contends that Jefferson County had no jurisdiction to try him as an accomplice to rape and kidnapping. He is wrong for two reasons.
First, Cloird is legally mistaken when he contends that he cannot be charged as an accomplice if he was not physically present at the crime scene. A person is an accomplice when he or she renders the requisite aid or encouragement to the principal with regard to the offense at issue. See Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002) (substituted opinion on denial of rehearing). It is not necessary that the accomplice actually be present at the scene of the crime or physically commit the crime, so long as the accomplice aided, assisted, or encouraged the crime. Id. “A participant cannot disclaim responsibility because he did not personally take part in every act that went to make up the crime as a whole.” Id. at 31, 86 S.W.3d at 878 (citing Crutchfield v. State, 306 Ark. 97, 812 S.W.2d 459 (1991), and Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979)).
Second, Cloird is factually mistaken when he asserts that there is no evidence placing him at the scene of the victim’s abduction in Jefferson County. The record reflects that during the night in question, Cloird and Foster stole a van from Smart Chevrolet in Pine Bluff and drove it to the trailer in Flumphrey. Pine Bluff Detective Susie Powell testified that Cloird admitted to her that he and Foster had stolen the van from the dealership and drove it to a trailer in Humphrey. The victim, Ms. Smith, testified that when she was abducted by Morris and Burton from the parking lot of P.J.’s, she noticed a van behind Morris’s car. Tremaine Parker, a very reluctant witness for the State, testified that Cloird told him that he stole the van and drove it first to P.J.’s, and then to the trailer in Humphrey. Based on these facts, Jefferson County had jurisdiction to try Cloird.
In Arkansas, jurisdiction is statutorily provided for in Ark. Code Ann. § 16-88-105(b) (1987), which states: “The local jurisdiction of circuit courts and justices’ courts shall be of offenses committed within the respective counties in which they are held.” See also Ark. Const, art. 2, § 10 (providing in part that “[i]n all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed[.]”) An offense that occurs in more than one county is governed by Ark. Code Ann. § 16-88-108(c) (1987), which provides: “Where the offense is committed partly in one county and partly in another, or the acts, or effects thereof, requisite to the consummation of the offense occur in two (2) or more counties, the jurisdiction is in either county.” The purpose of this section is to prevent miscarriages of justice by extending the lines of jurisdiction beyond the limits prescribed by the common law; thus, this section is remedial in nature and must be liberally construed. State v. Osborn, 345 Ark. 196, 45 S.W.3d 373 (2001) (citing Hill v. State, 253 Ark. 512, 487 S.W.2d 624 (1972)). Moreover, the crime of kidnapping is governed by its own jurisdictional provision, Ark. Code Ann. § 16-88-110(a) (1987), which provides that where a kidnapping occurs in more than one county, “the jurisdiction shall be in the county in which the kidnapping, seizing, or confining was committed, or in any county in which it was continued.”
Our cases have consistently recognized that when a crime begins in one county and proceeds to culmination in another county, both counties have jurisdiction to prosecute the crime. For example, in Ellis v. State, 291 Ark. 72, 722 S.W.2d 575 (1987) (per curiam), this court denied relief under Rule 37 where the defendant alleged that Jefferson County lacked jurisdiction to try him for kidnapping and aggravated robbery. Relying on Ark. Stat. Ann § 43-1414, now codified as section 16-88-108(c), this court held: “The offense of kidnapping in this case occurred in Jefferson County and culminated in the aggravated robbery of the victim in Pulaski County. Under these facts, Jefferson County had jurisdiction to try the petitioner for both offenses.” Id. at 73, 722 S.W.2d at 576 (citing Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986)).
The facts in Cozzaglio, 289 Ark. 33, 709 S.W.2d 70, upon which this court relied in Ellis, were similar to those in the present case. There, the kidnapping occurred in Washington County, continued into Madison County, and culminated with the victim’s rape in Madison County. The defendant was tried and convicted of the kidnapping in Washington County, and then tried and convicted of the rape in Madison County. On appeal, the defendant argued that the first trial court had erred in refusing to join the offenses in one trial. This court agreed and reversed, on the ground that both counties had jurisdiction over both offenses. See also Wilson v. State, 298 Ark. 608, 770 S.W.2d 123 (1989) (reiterating the law that separate crimes committed in one continuous episode in more than one county may be tried in either county and require joinder in one county if the defendant requests it).
Similarly, in Patterson v. State, 306 Ark. 385, 815 S.W.2d 377 (1991), this court held that although the murder occurred in Greene County, Craighead County had jurisdiction to try the appellant because some of the acts requisite to the murder occurred in Craighead County. See also Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990) (holding that both Saline County and Grant County had jurisdiction to try the appellant for murder, where the actual killing occurred in one county, but the acts requisite to the consummation of the murder and the subsequent disposal of the body occurred in the other county); Thrash v. State, 291 Ark. 575, 726 S.W.2d 283 (1987) (holding that where the murder and robbery occurred in one county, but the plan was hatched in another county and the body was subsequently returned to that other county, both counties had jurisdiction to try the appellant); Bottom v. State, 155 Ark. 113, 244 S.W. 334 (1922) (holding that the State has the right to elect in which county the offense may be prosecuted where the jurisdiction is concurrent under the statutes, and until the final judgment, which operates as a bar to further prosecution in either county, the State’s right of selection of the forum continues).
Here, the facts clearly establish that Ms. Smith was kidnapped from the parking lot of P.J.’s, a nightclub in Jefferson County, and eventually driven to a trailer in Arkansas County. Along the way, Ms. Smith was repeatedly raped by Morris and Burton. After she was abducted by Morris and Burton, Ms. Smith noticed a van behind Morris’s car. Cloird confessed to police that he and Foster stole a van that night from a Pine Bluff dealership and drove it to Humphrey. Cloird also told Tremaine Parker that after he and Foster stole the van, they drove it to P.J.’s and then to Morris’s trailer in Humphrey. Once at the trailer, the perpetrators continued to restrain Ms. Smith against her will, and Morris, Burton, and Cloird repeatedly raped her. This evidence clearly demonstrates that the crimes against Ms. Smith were committed in a single criminal episode that began in Jefferson County and culminated in Arkansas County. Under our statutes and case law, either county had jurisdiction to try Cloird.
Finally, we disagree with Cloird’s argument that because he was acquitted of the crime of kidnapping, Jefferson County lacked jurisdiction to try him for the rape. As set out above, the evidence established that both counties had jurisdiction to try him for the crimes. The fact that the jury ultimately concluded that Cloird was not guilty of the offense of kidnapping has no bearing on the trial court’s power to try him. We thus deny the writ of habeas corpus.
Imber, J., not participating.
We also granted permission for Cloird to file a petition for a writ of error coram nobis in the trial court. This appeal involves only the habeas issue. | [
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Tom Glaze, Justice.
Jimmy R. Smart appeals his convictice. sentence for the October 27, 2000, capital murder of Manila resident C.B. Murphy. Smart raises three arguments, none of which has merit.
Smart’s first argument on appeal is that the trial court erred in denying his motion to suppress the statement he gave to police officers. Although Smart does not contend the evidence was insufficient to support his conviction, we must first briefly discuss the facts leading to his arrest and the statement. Murphy was murdered on October 27, 2000, and his body was discovered the morning of the following day — Saturday, October 28. That Saturday afternoon, a friend called Smart to say the police were looking for Smart and several other people who had been partying the night.before in the trailer park where Murphy lived. Shortly before 3:00 p.m., Smart arrived on his own at the Manila Police Department. Once there, Smart spoke with Mississippi County Sheriffs Department Investigator Robert Ephlin, who advised Smart of his Miranda rights. Smart executed the Miranda rights form at 2:55 p.m., stating that he understood what his rights were and that he was willing to answer questions and make a statement. Smart did not request an attorney, but instead proceeded to give a statement denying any involvement in the murder.
Ephlin testified at the suppression hearing that, at this time, Smart was free to go, but Smart stayed at the police station. A short while later, Ephlin decided that he wanted to question Smart again, and so he again went over the Miranda form with Smart. However, Smart indicated that he thought he might need an attorney, so Ephlin terminated the interview. At that point, Ephlin said, Smart was still not under arrest and was still free to leave the building. Ephlin and Chief of Police Jackie Hill left the room to talk.
After a few minutes, Smart came to the door and indicated that he wanted to talk to Ephlin again, saying, “Bobby, would you come back and talk to me? Let’s get this over with.” Ephlin and Hill went back into the room with Smart, and Ephlin again read Smart the Miranda rights form. Smart initialed and signed the form, and proceeded to give a videotaped statement, during which Smart acknowledged that he had initiated the contact with the officers. Ephlin asked Smart if he wanted to take a polygraph test, and Smart replied that he did. Smart continued to deny any involvement in the murder.
About 8:30 p.m., Ephlin called Lieutenant Bobby Walker with the State Police and arranged for a polygraph with State Police Detective Charlie Beall; Ephlin and Beall agreed to meet at Troop C Headquarters in Jonesboro. During the interval between the videotaped statement and Ephlin’s calling the State Police, Smart was fed a cheeseburger and fries, and was allowed to take a nap on a cot in an unlocked holding cell at the police station. Ephlin testified that, during this interval, Smart was still free to leave at any time.
During the drive from Manila to Jonesboro, Smart was handcuffed, but Ephlin asserted that this was due to his lack of knowledge of whether Smart may have been involved in a brutal crime. The police car in which they were driving did not have a screen between the driver and the passenger in the rear seat, so Ephlin cuffed Smart’s hands in front of him as a security measure. Ephlin averred that Smart was still not under arrest at this time, and the cuffs were removed when they arrived in Jonesboro.
Detective Beall conducted a polygraph examination of Smart after advising Smart of his Miranda rights; Smart once more initialed and signed the waiver of rights form at 9:30 p.m. The polygraph examination lasted about an hour and forty-five minutes. After the polygraph, Beall took a tape-recorded statement from Smart, again orally advising him of his rights and securing his agreement that he understood his rights. Beall testified that he did not coerce, threaten, or promise Smart anything, that Smart never requested an attorney, and that Smart did not appear to be under the influence of drugs or alcohol. During the taped statement, which lasted from 12:30 a.m. until 12:51 a.m., Smart confessed to killing Murphy. At that time, Smart was formally placed under arrest.
At the suppression hearing, Smart argued that his confession was obtained after he was “unconstitutionally detained,” and that the detention was effected without probable or reasonable cause to suspect that he had participated in the murder. As evidence of the detention, Smart pointed to the fact that he remained in the Manila police station from 3:00 in the afternoon until 7:00 that evening. As proof that he was not free to leave the police station, he pointed to the fact that he did not leave, but stayed in the police station and waited. Finally, Smart argued that the “most telling” evidence of his detention was the fact that the officers placed him in the backseat of a police car, in handcuffs, to take him to Jonesboro.
The trial court denied the motion to suppress, finding that Smart had voluntarily gone to the police department, and never asked to leave. The court ruled that the length of time Smart was there was not unreasonable, and that the officers had treated him well — feeding him and giving him a place to nap — while he was there. The court further found that the nature of the restraint with the handcuffs was reasonable, and that Smart consented to going to Jonesboro, and did so with the understanding that it would take some time to drive there.
Smart continues his arguments on appeal, maintaining that, because his inculpatory statement was given after an extended period of detention, his statement should have been suppressed. He cites Shields v. State, 348 Ark. 7, 70 S.W.3d 392 (2002), and Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993), in support of his argument. In Shields, appellant Darwin Shields had been approached by police officers in regard to the disappearance of Shields’s girlfriend, but when the police discovered suspicious items in Shields’s car, they asked him to go to the police station for further questioning. Once there, Shields confessed to having murdered his girlfriend. On appeal, Shields argued that his confession should have been suppressed because the police should have made it clear to him that he was under no legal obligation to accompany them to the police station. This court rejected Shields’s contention, holding that a verbal admonition of a suspect’s freedom to leave was but “one factor to be considered in our analysis of the total circumstances surrounding compliance with [Ark. R. Crim. P.] 2.3.” Shields, 348 Ark. at 11-12. We further cited United States v. Mendenhall, 446 U.S. 544 (1980), where the Supreme Court discussed whether a person’s consent to accompany police officers is voluntary or is the product of duress or coercion. Stating that such a determination is to be made in light of the totality of the circumstances, the Mendenhall court held that “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Mendenhall, 446 U.S. at 554-55 (emphasis added). Because Shields conceded that he went voluntarily to the police station, this court rejected his argument that he had been illegally seized.
Shields raised an alternative argument that he had been arrested without probable cause, pointing to the fact that he had been handcuffed while being transported to the police station. This court likewise dismissed that argument, pointing out that the officer who handcuffed Shields informed him that such action was police department policy, and that Shields acknowledged that he understood this. We also held that our decision did not turn on the question of the handcuffing, stating that the question of whether a confession was the product of a free will is to be answered under the facts of each case, although no single fact is dispositive. Id. at 15. Examining the totality of the circumstances, which included Shields’s repeated agreements that he was at the police station voluntarily, the court held that, even if Shields had been arrested illegally, his confession was still voluntary. Id. at 17.
In addition to the Shields case, Smart relies on Friend v. State, supra, wherein this court reversed a conviction on the basis that appellant Friend had been illegally arrested. That case is factually distinguishable from the present case, in that Friend’s arrest was effectuated by Garland County officers, when those officers had only been asked to hold Friend until Sevier County officials could arrive to arrest him. In addition, the Friend case involved the improper use of a prosecutor’s subpoena to obtain Friend’s cooperation with questioning; the court held that the subpoena was illegally used “to subvert the requirements applicable to investigative stops.” Friend, 315 Ark. at 152. No such concerns are implicated in the instant case, and Smart’s attempts to analogize his situation to that in Friend are unavailing.
Likewise, Smart’s reliance on Shields is misplaced, as it is apparent that his confession was not the result of an illegal arrest or other improper police activity. Smart appeared at the police station on his own volition. He initialed no less than four Miranda forms; on the second one, when he indicated that he though he might need an attorney, Ephlin immediately terminated the interview. Although two officers were present during the interview, there was no evidence that they displayed weapons, acted in a threatening or coercive manner in any respect, or indicated in any way that Smart could not leave. In fact, during Smart’s confession, Detective Beall asked Smart, “I have never told you that you couldn’t leave here . . . uh, is that correct?” Smart replied, “Yes, sir.” The officers fed Smart, and they gave him a place to lie down and nap. Although the officers conceded that they did not inform Smart that he was free to leave, Smart himself never testified that he tried to leave or that he believed that he would not have been able to leave the police station if he had tried.
As the State points out, the only act by the police that actively interfered with Smart’s freedom was when the officers handcuffed Smart and placed him in the back seat of the police car for the drive from Manila to Jonesboro. However, Smart who had had previous encounters with law enforcement officers, voluntarily agreed to go to Jonesboro for the polygraph test. Ephlin testified that the only reason he handcuffed Smart was because Ephlin did not know at the time whether Smart had been involved in a brutal murder. Further, Smart was uncuffed as soon as they got to Jonesboro; Detective Beall testified that Smart was not wearing handcuffs when he arrived inside the State Police Headquarters. This was a temporary and reasonable precaution on the part of the officers. In addition, Smart was again advised of his Miranda rights prior to speaking to Beall and giving his confession some three hours after the handcuffs were removed. Coercive police activity is a necessary component of an involuntary statement, and there must be an essential link between the coercive behavior of the police and the resulting confession of the accused for suppression to occur. Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001). Given the totality of the circumstances, it is apparent that the trial court did not err in denying Smart’s motion to suppress.
For his second point on appeal, Smart argues that the trial court erred in admitting crime scene and autopsy photographs, and he asserts that these photos were inflammatory and more prejudicial than probative. Smart specifically questions the admissibility of State’s Exhibits 17, 18, and 19, displaying the body at the crime scene, and State’s Exhibits 37 through 53, which were photographs taken by the medical examiner during the course of the autopsy on Murphy.
The controlling rule of evidence is Ark. R. Evid. 403, which states that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presenta tion of cumulative evidence.” The admissibility of photographs lies in the sound discretion of the trial judge and will not be reversed absent an abuse of discretion. Mosby v. State, 350 Ark. 90, 85 S.W.3d 500 (2002); Hamilton v. State, 348 Ark. 532, 74 S.W.3d 615 (2002).
This court has repeatedly stated that when photographs are helpful to explain testimony, they are ordinarily admissible. Barnes v. State, 346 Ark. 91, 55 S.W.3d 271 (2001); Williams v. State, 322 Ark. 38, 907 S.W.2d 120 (1995). Further, the mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994). Even the most gruesome photographs may be admissible if they assist the trier of fact by shedding light on some issue, proving a necessary element of the case, enabling a witness to testify more effectively, corroborating testimony, or enabling jurors to better understand the testimony. Barnes, supra. Other acceptable purposes are to show the condition of the victim’s body, the probable type or location of the injuries, and the position in which the body was discovered. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000); Sanders v. State, 340 Ark. 163, 8 S.W.3d 520 (2000). Pictures may also be helpful to the jury by showing the nature and extent of wounds and the savagery of the attack on the victim. Bradford v. State, 306 Ark. 590, 815 S.W.2d 947 (1991).
The trial court must exercise some discretion in its decision-making regarding the admissibility of photographs. Mosby, supra. Stated differently, the trial court cannot simply give carte blanche to the admission of any and all photographs of the crime scene and victim offered by the prosecutor, as that would be a failure to exercise discretion. Id. (citing Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986)).
Flere, the trial court reviewed eleven photographs of the crime scene, but permitted the State to introduce only three of them, opining that they were “probably . . . the lesser offensive of the eleven that you’ve shown me.” The court noted that the three photos that were admitted into evidence “depict the body with a weapon, [and] they also display and depict the crime scene and the location of the weapons, and therefore, are probative to that issue, and even though they aren’t the prettiest things to look at, I’ve seen worse.” Clearly, the trial court exercised its discretion in determining which pictures should be admitted.
Smart also argues that the photographs were cumulative to the crime scene videotape that the State also introduced. However, this court has held that videotapes can give the jury a different perspective of the crime scene, and in that way, they can be helpful to a jury’s understanding of the case. Hamilton v. State, 348 Ark. 532, 74 S.W.3d 615 (2002). In Hamilton, this court stated that, “[c]ertainly, the crime scene was bloody and gruesome, but whether the prosecutor overstepped his bounds in the submission of cumulative depictions is a matter that lies within the trial court’s discretion.” Hamilton, 348 Ark. at 541.
Further, Smart contends that the autopsy photographs were gruesome and unfairly prejudicial. The State introduced seventeen photos from the autopsy; these pictures showed various wounds on Murphy’s body,-including numerous shots of the back of his head both before and after the medical examiner shaved his hair to better examine the extent of the crushing blows to the back of Murphy’s skull. Other photos showed the stab wounds to Murphy’s torso and back, and one defensive-type cutting wound on his wrist. Dr. Frank Peretti, the medical examiner, described the cluster of stab wounds on Murphy’s chest as coming from two different implements and as being consistent with “a lack of struggle on the victim’s part. The person is unconscious or in the process of dying.” As photographs may be utilized to demonstrate the “savagery of the attack on the victim,” see Bradford, supra, and to corroborate the medical examiner’s testimony, see Mosby, supra, we hold the trial court did not abuse its discretion in admitting these pictures.
Finally, Smart argues that the fact of Murphy’s murder and the cause of his death were undisputed, and that it was prejudicial to parade gruesome photographs before the jury. A defendant, however, cannot prevent the admission of a photograph merely by conceding the facts portrayed therein. Sanders v. State, supra. Therefore, this argument is also without merit.
Smart’s final argument is that the trial court erred in denying his motion for new trial. The decision whether to grant or deny a new trial lies within the sound discretion of the trial court, and this court will reverse that decision only if there is a manifest abuse of discretion. Henderson v. State, 349 Ark. 701, 80 S.W.3d 374 (2002). A trial court’s factual determinations on a motion for a new trial will not be reversed unless clearly erroneous, and the issue of witness credibility is for the trial judge to weigh and assess. Id.
Smart filed his motion for new trial after a Mrs. Sue Yarbrough advised his attorney that she might have additional information about the case. Yarbrough alleged that she had seen Murphy’s body lying on the floor of his trailer at 6:30 a.m. on Friday, October 27, nearly twenty-four hours before police officers found his body. In his motion, Smart argued that the medical examiner had placed the time of death between 6:00 p.m. on Thursday night, October 26, 2000, and early Saturday morning on October 28, 2000. Yarbrough’s evidence, he claimed, placed the time of death prior to early Friday morning, instead of Friday night, which, he argued, would have had a bearing on his defense and the jury’s conviction of him.
Following a hearing, the trial court denied Smart’s motion, noting first that Yarbrough’s testimony about where she had seen the body conflicted with the trial testimony of the investigating officers, who had found Murphy at the opposite end of the trailer. In addition, the court stated that Yarbrough’s testimony did not conflict with the range for the time of death given by the medical examiner. Finally, pointing out that Yarbrough described no physical injuries and claimed to have seen no evidence of blood or trauma, and that she had kept silent for over a year and a half after Murphy’s murder, the court concluded that it did not find her a credible witness.
The trial court did not abuse its discretion in refusing to consider this “newly discovered” evidence as requiring a new trial. We have long held that newly discovered evidence is one of the least favored grounds to justify a new trial. Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997); Bennett v. State, 307 Ark. 400, 821 S.W.2d 13 (1991); Williams v. State, 252 Ark. 1289, 482 S.W.2d 810 (1972). Here, Yarbrough testified that she did not see any blood on Murphy, even though crime scene photographs clearly showed the presence of blood covering Murphy. In addition, Yarbrough claimed to have seen Murphy’s body at the opposite end of the house from where the police found his body. Lastly, Yarbrough never offered her story until her daughter, who attended Smart’s trial, told Yarbrough that she thought Smart was innocent. Clearly, in view of these inconsistencies, the trial court’s determination that Yarbrough was not credible was well-founded, and accordingly, we conclude the trial court’s ruling denying Smart’s motion for new trial did not amount to an abuse of discretion.
The record in this case has been reviewed for other reversible error in accordance with Ark. Sup. Ct. R. 4-3(h), and none has been found.
Affirmed.
Smart was also convicted of burglary, but does not challenge that conviction on appeal. | [
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Per Curiam.
Richard L. Hamilton, through his attorney iam. Butler, filed a motion for a writ of certiorari, requesting that we direct court reporter, Iris Brooks, to complete the remaining portion of the transcript to be included in the record.
On December 19, 2002, we issued a per curiam opinion ordering Ms. Brooks to appear before this court to show cause why she should not be held in contempt of court for failing to prepare the record on or before the appropriate time. See Hamilton v. Jones, 351 Ark. 382, 93 S.W.3d 694 (2002). The hearing was held on January 16, 2003, and Ms. Brooks testified as to the mitigating circumstances. On January 23, 2003, we issued a per curiam order regarding a contempt citation directed to Iris Brooks in which we entered the contempt citation with a reduced fine of $100.00. See Hamilton v. Jones, 351 Ark. 561, 95 S.W.3d 809 (2003). We take this opportunity to correct an error in this previous per curiam opinion. In the january 23, 2003 order, we stated that “On January 9, 2003 the record was tendered to our clerk.” Id. That is incorrect. In fact, only a partial record, one volume of four, was tendered to our clerk on December 9, 2002. As of this date, the record has not been completed.
Accordingly, we issue this writ of certiorari directing Iris Brooks to complete the. record, which is returnable within thirty days. | [
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Per Curiam.
Attorney J. F. Atkinson, Jr., represents appellant Alisa Danieal Efurd, who was convicted of first-degree murder by a jury in the Sebastian County Circuit Court and was sentenced to twenty-five years in the Arkansas Department of Correction. On February 23, 1999, the Arkansas Court of Appeals issued a mandate affirming Efurd’s conviction; and, on March 19, 1999, Efurd filed a timely pro se Rule 37 petition, a petition to proceed in forma pauperis, and a motion for appointment of counsel. On April 9, 1999, the trial court issued an order to appoint J. F. Atkinson, Jr., to represent Efurd in her Rule 37 proceeding; and, on April 12, 1999, the trial court sent a notice to counsel stating, “Please find an order appointing you (Jeff Atkinson) to represent Ms. Efurd in her Rule 37 Petition. No hearing has been scheduled as of this date.” On August 31, 1999, Efurd’s Rule 37 petition was summarily denied without making written findings specifying the parts of the files and records relied upon in denying the petition.
On September 9, 1999, the trial court entered an order awarding attorney fees to J. F. Atkinson, Jr. Efurd notified Atkinson of her desire to appeal; and, on November 10, 1999, Atkinson filed Efurd’s notice of appeal and designation of record. The court reporter filed the transcript with the Sebastian County Circuit Court Clerk and tendered to counsel the transcript on or about February 10, 2000.
Atkinson thereafter failed to timely file the transcript with the clerk of this court, due to the file and transcript sitting therein, having been misfiled or lost and forgotten about according to Atkinson. Atkinson asserts that while searching for another file which was misfiled, Atkinson came across Efurd’s file. Then, on February 7, 2003, Atkinson filed a motion to file belated appeal and rule on the clerk.
Based on the circumstances described above, we order J. F. Atkinson, Jr., to appear before this court on March 20, 2003, at 9:00 a.m., to show cause why he should not be held in contempt for failing to timely perfect the appeal. | [
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Per Curiam.
In 1992, James Ken Anderson entered a plea m. guilty to murder in the second degree and was sentenced to eleven years’ imprisonment. On July 23, 2001, Anderson filed a pro se petition for writ of error coram nobis in the trial court. He later amended the petition to allege that he was entitled to a writ of habeas corpus on the ground that he was actually innocent of the offense. The petition was denied after a hearing, and petitioner Anderson has appealed to this court. Now before us are a series of motions filed by appellant.
The appeal is dismissed as it is clear that the appellant could not prevail on appeal. The motions are moot. This court has consistently held that an appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994); see Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).
It was adduced at the hearing on appellant’s petition that he was released from custody in 1997, having completed his sentence. (He was subsequently convicted in Miller County of second-degree murder and sentenced to a term of forty years’ imprisonment.) Thus, when appellant filed his petition in 2001 challenging the 1992 conviction, he was not in custody as a result of that judgment of conviction even though that judgment was used to enhance the later sentence. When a court finds cause to grant a writ of error coram nobis, the remedy is a new trial. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). Inasmuch as appellant had already served the sentence imposed, his petition is moot and a new trial would not have been an appropriate remedy even if there were cause to grant the writ with respect to his 1992 conviction.
Likewise, appellant’s request that a writ of habeas corpus be issued on the basis that he was actually innocent of the offense of which he was convicted in 1992 was also moot. As stated, appellant was not incarcerated as a result of the 1992 judgment; therefore, a writ of habeas corpus could not be issued to obtain his release from custody arising from that judgment. An issue is moot when any judgment rendered would have no practical legal effect upon an existing legal controversy. Bohanan v. State, 336 Ark. 367, 985 S.W.2d 708 (1999).
Appeal dismissed; motions moot.
Imbbr, J., not participating.
The eleven-year sentence was considered completed in 1997 as a result of the accumulation by appellant of credits against the sentence such as “good time.” | [
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Robert L. Brown, Justice.
Appellant, The Coca-Cola XXwBottling Company of Memphis, Tennessee, d/b/a Coca-Cola Bottling Company of Arkansas, appeals a judgment in the amount of $1,341,666.67 in favor of appellee Fred Gill and a $182,500 verdict in favor of appellee Retta Gill. The total judgment of $1,524,166.67 was reduced by $100,000 due to the Gills’ settlement with Waymatic, Inc., making the total judgment $1,424,166.67. Coca-Cola raises three grounds for reversal: (1) Coca-Cola did not violate its duty of ordinary care owed to Fred Gill; (2) the circuit court abused its discretion in barring Coca-Cola from using the Gills’ nonsuited allegations against Waymatic, Inc.; and (3) the circuit court abused its discretion in qualifying Jimmy Clark as an expert witness and in admitting into evidence his opinion regarding the cause of Mr. Gill’s injuries. We affirm the judgment and the order denying Coca-Cola’s posttrial motions.
The facts are gleaned from the testimony at trial. On April 7, 1998, Fordyce High School requested a Coca-Cola concession trailer for use at the Redbug Relays track meet to be held at the high school. Coca-Cola owns a small fleet of portable concession trailers which it loans to customers, including Fordyce High School, for use at various events and which are towed behind vehicles to their various destinations. Coca-Cola delivered concession trailer #308 to the high school on the date of the accident and left it at a place where the high school principal, Steve Daniel, instructed it to do so. A 120-foot, 15-amp cord, which was permanently attached to the trailer, was plugged into a receptacle in the field shed with a three-prong plug for grounding. The receptacle ground wire in the shed had been disconnected. No auxiliary grounding system in the form of an eight-foot metal rod beside the trailer was used. School employees set up the trailer, and while doing so, Fred Gill, who was then age 70 and a custodian at the high school, was injured by an electrical shock when he raised the windows of the concession trailer. Steve Daniels heard Mr. Gill make a strangled noise when he plugged in the trailer. He then tried to help Mr. Gill, and was shocked with enough force to knock him to the ground when he touched him. He then touched the trailer and felt current go through his hand. He immediately unplugged the trailer. Mr. Gill fell to the ground. The shock broke both of Mr. Gill’s shoulders and burned his hands and feet. Mr. Daniel testified that Mr. Gill was unconscious and stopped breathing for a period of time. He suffered permanent injuries as a result and, according to his brothers’ testimony, he is confined to a wheelchair.
On January 6, 1999, the Gills filed suit against Waymatic, Inc., the manufacturer of the trailer at issue in this case, and Coca-Cola. The complaint alleged that “a Coca-Cola vending trailer manufactured by . . . Waymatic, Inc. electrically shorted to ground through plaintiff Fred Gill’s body and as a direct and proximate result, caused damages.” The Gills asserted a two-part products-liability cause of action against Waymatic. They asserted that the trailer had been manufactured in a defective and unreasonably dangerous condition. Specifically, they alleged:
• that the trailer had no “self-sufficient or ground fault system;”
• that the trailer had “inadequate wiring precautions” during the design and manufacture of the trailer;
• that the trailer had inadequate warnings to users that it did not have a sufficient grounding system;
• that Waymatic knew that the electrical system in the trailer was inadequate and failed to recall it;
• that Waymatic failed to adequately warn users against the dangers of the trailer’s electrical system.
The Gills’ second allegation against Waymatic was that it had negligently designed the electrical system in the trailer.
The complaint further alleged that Coca-Cola “negligently failed to maintain or monitor the decaying electrical system or negligently failed to inspect said trailer, all of which were the proximate cause of the injuries of [the] plaintiff. . . .” The complaint asserted joint and several liability against Waymatic and Coca-Cola and asked for compensatory damages against Coca-Cola and both compensatory and punitive damages against Waymatic.
On July 11, 2000, the Gills filed their first amended complaint. In the amended complaint, the Gills added two allegations to its negligence claim against Coca-Cola: (1) Coca-Cola negligently removed the lug nut from the trailer through which a wire could be threaded to attach to a metal rod as part of an auxiliary grounding system; and (2) Coca-Cola negligently failed to warn users of how to use the trailer safely. The Gills’ claims against Waymatic were left unchanged. On October 6, 2000, the Gills filed their second amended complaint and added two allegations to support their strict — liability claims against Waymatic: (1) Waymatic failed to instruct users on grounding the trailer and in the use of the auxiliary grounding system, and (2) Waymatic failed to inform users that use of the auxiliary grounding system was necessary for the trailer’s safe operation. In this pleading, the Gills dropped their punitive damages claim against Waymatic.
Just before trial, the Gills settled their complaint against Waymatic for $100,000. On February 1, 2001, the circuit court granted the Gills’ oral motion to nonsuit their lawsuit against Waymatic. On February 2, 2001, the circuit court held a pretrial motions hearing on both Coca-Cola’s motion for summary judgment and its motion in limine to allow admission of the Gills’ alie gations against Waymatic contained in the nonsuited portions of their complaint. The circuit court denied both motions.
On February 5, 2002, the trial began and lasted two days. Mike Easterwood, the president and CEO of Waymatic, testified for the Gills via deposition. He testified generally about Waymatic’s “S” type of concession-stand trailer, of which trailer #308 is an example and described the auxiliary grounding system that Waymatic provides with them. The grounding system, according to Mr. Easterwood, is simply a lug nut with a hole in it, mounted on the tongue of the trailer. The grounding system is operated by threading a piece of copper wire through the hole and the other end of the wire to a grounding rod — an eight-foot metal pole which is driven into the ground. He described the auxiliary grounding system as a safety measure that assures that the trailer is always grounded. He testified that he considered such lug nut grounding systems standard in the industry and that he assumed that customers who bought the trailers would realize the purpose of the lug nut. On cross examination, Mr. Easterwood admitted that Waymatic does not supply a grounding wire or rod with the trailers, only the lug nut; nor does Waymatic provide its customers with instructions on how to use the lug nut.
Several witnesses testified and gave their opinions about what caused Mr. Gill’s injuries. Mr. Edward McMillan testified that he worked for Ledbetter Electric as an electrician and was dispatched the day of the accident to the high school at the request of the high school, where he examined the trailer which was still “hot.” His most definitive statement on causation came during cross-examination: “It’s my opinion that the cause of the accident as it was described to me was the disconnected ground wire in the shed.” He agreed with the Gills’ theory of the accident when he was asked in a hypothetical question about cord shorting and then moving the cord. On cross-examination, however, Mr. McMillan disagreed with the assumption of the hypothetical and stated that he did not think there was a problem with the cord based on his testing of the shed receptacle and the trailer.
Mr. Jimmy Clark testified as an expert and fact witness for the Gills and blamed wiring in the cord and trailer as causes of the accident. He testified on re-direct examination:
[I]f you’re wanting to talk about probabilities, I think it’s a 100% probability that the fault that caused the incident that hurt Mr. Gill was in the cord or the concession stand. If you want to consider that whole thing as a package, it’s 100% in my opinion that that’s what happened. . . . Had it been grounded, Mr. Gill would not have been hurt.
He further testified on re-cross examination that even if the shed receptacle had been grounded, it would not have guaranteed Mr. Gill’s safety:
It could have been grounded at the receptacle in the shed, but that doesn’t necessarily mean that it wouldn’t have done the same thing. I’m telling this jury that a ground wire on the receptacle in the shed that is required by the National Electrical Code would not necessarily have protected someone touching the trailer even if it was electrified.
Mr. Clark further testified that a new cord had replaced the older cord by the time he examined the trailer four months after the accident. He said that “it was 95% probable that it was the cord” that caused the accident. He described the percentage as a “wild guess.” He opined that had the cord been grounded by an auxiliary system, the accident would not have occurred.
Mr. Peter Reynolds testified as an electricity expert for the Gills and concluded that the combination of an ungrounded receptacle in the shed, the lack of an auxiliary grounding system with a ground rod, and electricity from the cord coming in contact with the trailer caused the accident:
As I said earlier, at least three things had to go wrong .... They had not connected the ground connection in the shed. We also know the second thing going wrong that day was that the external grounding connection, the ground rod and the lug, had not been used. The third thing that occurred was that somehow the electricity that was coming in on the wire from the shed got connected to the frame of the trailer.
Mr. Reynolds based his expert opinion on tests that he performed on the shed after the accident and on Mr. Clark’s testimony. He further testified that in his experience it was “prudent” to have an auxiliary grounding system and that invariably this was done. He added that when he worked with trailers with a former employer, they required that all their trailers be grounded while they were in the field and operational.
Mr. Lonnie Buie testified as an electricity expert for Coca-Cola. Mr. Buie tested the trailer at the Camden service center a year after the accident. He testified that he found no problems with the cord attached to the trader at that time. He also had trouble finding conductivity between the power cord to the window that Mr. Gill touched when he was injured. His opinion was that the receptacle and grounding system in the shed did not comply with the National Electrical Code. He concluded that what caused the accident could not be determined with certainty but that having a ground in the shed receptacle would have undoubtably prevented the accident:
I cannot say exactly how the accident happened. There are too many conflicting eyewitnesses, and accounts to be able to determine exacdy what happened out there. I don’t know that anybody, and several people have tried, can come up with any logical conclusion of how this happened. There’s been a lot of speculation and a lot of guesses, but really we don’t know. Mr. Reynolds, Mr. McMillan, and I all agree, however, that if the receptacle in the shed had been grounded, the accident wouldn’t have happened.
Mr. Buie was impeached by a memo written by a Coca-Cola attorney following a telephone conversation with a “John Harrell,” identified as an employee of the Camden warehouse where trailer #308 was housed. That memo read in part: “Harrell did say that these trailers had a place for a ground to be connected. Apparently, we never utilized this because it involved a stake that if it was not pulled up and the drivers attempted to haul the trailer away, the stake would be run over and would puncture a tire. This causes me some concern.”
Mr. Harrell, identified in the memo, is actually, John Harold. He testified as follows on cross-examination:
Gills’ Attorney. Did you not tell that lawyer that you never utilized this grounding system because it involved a stake that if it was 'not pulled up the drivers attempted to haul the trailer away, the stake would be run over and would puncture a tire?
Harold. I told the lawyer when we were doing a what if for a better word, what we could have done, and after the fact, and I found out that there was a — some kind of system that could be used, but it’s just not practical. I could have said that. I don’t recall really the total conversation, it was on the telephone and it was several months after the incident occurred and we were talking about what if, what could have been done.
Gills’ Attorney. Said that meaning that “You never utilized this stake because if not pulled up the drivers attempted to haul the trailer away the stake would be run over and would puncture a tire.”
Harold. I could have made that statement when we were talking why we wouldn’t use it. Just doing a what if after the fact.
The jury returned a judgment for $1,341,666.67 for Fred Gill and in the amount of $182,500.00 for Retta Gill for loss of consortium. The circuit court credited the amount of the Waymatic settlement in the amount of $100,000.00 against the Fred Gill verdict, for a total judgment of $1,424,166.67. In a motion for a new trial or judgment notwithstanding the verdict, Coca-Cola raised essentially the same issues that are before this court in this appeal, but also requested a remittitur of the judgment amount. The circuit court denied that motion.
I: Duty Owed
Coca-Cola’s first argument is that it owed only a duty of ordinary care to Mr. Gill and that it was entitled to assume that the shed at Fordyce High School had a properly grounded receptacle. Because of this, Coca-Cola contends that the circuit court erred when it denied its motion for a directed verdict. The Gills initially counter this assertion with a procedural argument. They contend that Coca-Cola failed to preserve its duty argument. We disagree.
The Gills claim that when Coca-Cola moved for a directed verdict at the close of their case, it argued that an intervening cause, the faulty receptacle in the shed, broke the chain of proximate causation. The Gills claim, however, that Coca-Cola did not mount the argument that it owed no duty to Mr. Gill based on the fact that he was not a foreseeable plaintiff. Thus, they contend, Coca-Cola is foreclosed from arguing lack of foreseeability on appeal to this court, because the issue is not preserved.
We turn then to the motion for directed verdict. In its motion, Coca-Cola initially stated that it was entitled to rely on its assumption that Fordyce High School would abide by the National Electrical Code in connection with the receptacle in the shed, because everyone is assumed to know and obey the law. Because it relied on this assumption that the shed’s receptacle was adequately grounded, it could not be negligent, according to Coca-Cola, even assuming, arguendo, that there was a problem with the trailer. The Gills responded to this motion by stating that irrespective of whether a faulty ground in the field shed was an intervening cause, “Coca-Cola had a duty to foresee that if they removed the safety system that would have provided protection to Fred Gill . . . the courts could go back [and find negligence.]” Coca-Cola responded that the Gills had mischaracterized its argument as an intervening-cause argument, when really the question was one of duty: “Your Honor, I think [Gills’ counsel is] mixing up two areas of the law. . . It’s part of the definition of the duty of Coca-Cola. If [Coca-Cola] has the right to assume that someone acts a certain way and if action upon that is not negligence there’s no question about intervening cause. . . .” The circuit court ruled: “Whether or not Coca-Cola was negligent in its handling of the cord and whether or not it was negligent in the removal of the redundant safety system . . . would be question [sic] of fact for the jury and there’s sufficient evidence at this time to allow those two issues to go to the jury.”
When the motion for directed verdict was renewed, Coca-Cola continued to argue that it proved the standard duty of ordinary care to Mr. Gill and could assume the receptacle in the field shed was adequately grounded. The Gills contended that Coca-Cola failed in its duty, by removing or not installing, the auxiliary system that would have protected Mr. Gill.
We conclude that the issue of a duty owed to foreseeable victims was raised by counsel for the parties and ruled upon by the circuit court. It appears that it was initially the Gills’ counsel who redirected the circuit court to the issue of duty based on foreseeability. Coca-Cola then shifted its focus to the duty owed. In doing so, Coca-Cola clarified for the court that its objection was not about intervening causation, but about the duty owed to Mr. Gill in light of the high school’s failure to ground the receptacle in the shed. The circuit court concluded that the issue of Coca-Cola’s negligence was one for the jury. That ruling necessarily encompassed the issue of breach of the duty that was owed. See W. Page Keeton, et. al., Prosser and Keeton on the Law of Torts § 30 at 164 (5th ed. 1984) (“[Duty and breach] go to make up what the courts usually have called negligence; but the term quite frequently is applied to the second alone. Thus it may be said that the defendant was negligent, but is not liable because he was under no duty to the plaintiff not to be.”).
Turning to the merits of the duty issue, when reviewing a denial of a motion for a directed verdict, this court assesses whether the jury’s verdict is supported by substantial evidence. See Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002); State Auto Prop. & Cas. Ins. Co. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999); Dodson v. Charter Behavioral Health Sys. of Northwest Arkansas, Inc., 335 Ark. 96, 983 S.W.2d 98 (1998). Substantial evidence is defined as evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond mere suspicion or conjecture. See Wal-Mart Stores, Inc. v. Lee, supra; State Auto Prop. & Cas. Ins. Co. v. Swaim, supra; City of Little Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562 (1995). When determining the sufficiency of the evidence, this court reviews the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. See Wal-Mart Stores, Inc. v. Lee, supra; State Auto Prop. & Cas. Ins. Co. v. Swaim, supra; Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999); Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997).
Coca-Cola argues that the following facts demonstrate that Mr. Gill’s shock was not reasonably foreseeable for several reasons: the trailers had been used for almost twenty years without mishap; the manufacturer, Waymatic, did not provide the wiring or eight-foot grounding rod for an auxiliary grounding system for the trailers, and never told Coca-Cola what the purpose of the lug nut on the trailer tongue was; and Coca-Cola had never encountered a problem with an ungrounded power source in all of its history of using these trailers. Moreover, Coca-Cola contends that it knew nothing about the condition of the electrical outlet at the Fordyce High School field shed and nothing in the long history of using that outlet alerted it to the fact that a problem was even possible, let alone reasonably foreseeable. In sum, Coca-Cola’s argument is that “[t]he uneventful history with these concession trailers showed that Mr. Gill’s accident was extraordinary.”
The Gills respond that as a vendor of concession traders, Coca-Cola is charged with the knowledge of common industry practices, and there was testimony at trial that vendors such as Coca-Cola generally knew about auxiliary grounding systems and how to use them. The Gills argue that the record also shows that vendors do not usually allow their customers to set up the trailers; rather, they take that responsibility on themselves. They further maintain that the facts support a jury conclusion that Coca-Cola had removed the lug nut for an auxiliary grounding system, because the trailer was shipped to Coca-Cola with the nut, and by the day of the accident, the nut was gone. Moreover, they contend that the original electrical cord for the. trailer had been replaced. The original trailer cord had plugs at each end and was a 50-amp cord, as opposed to the replacement cord that was permanently attached to the trailer and was a 15-amp cord. According to the Gills, the replacement cord being moved through a metal hole placed more wear and tear on the cord. They conclude that the facts support the conclusion that “Coca-Cola had a duty to ensure the proper installation of its trailers or at a minimum, provide its users with instructions and/or warnings regarding the serious risk of shock which it had itself created by removing the safety ground system.”
This court has succinctly described what constitutes a question of law and what constitutes a question of fact in the negligence analysis:
The threshold question is whether the appellee owed a duty of any kind to the [appellant]. Whether a duty is owed between the parties is a question of law. . . . [T]he question of foreseeability and causation may be a question of fact, depending on the circumstances. Proximate causation is ordinarily a question of fact.
Stacks v. Arkansas Power & Light Co., 299 Ark. 136, 138-139, 771 S.W.2d 754, 756 (1989) (citations omitted). See also Cash v. Lim, 322 Ark. 359, 362, 908 S.W.2d 655, 657 (1995); Keck v. American Employment Agency, 279 Ark. 294, 652 S.W.2d 2 (1983); Missouri Pac. R.R. Co. v. Harrelson, 238 Ark. 452, 382 S.W.2d 900 (1964). This court has added: “If the court finds that no duty of care is owed, the negligence count is decided as a matter of law.” Mans v. Peoples Bank of Imboden, 340 Ark. 518, 524, 10 S.W.3d 885, 888 (2000). We have said that “[t]o constitute negligence, an act must be one from which a reasonably careful person would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner.” Ethyl Corp. v. Johnson, 345 Ark. 476, 481, 49 S.W.3d 644, 648 (2001) (quoting Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998)).
However, a defendant is under no duty to guard against risks it cannot reasonably foresee. Ethyl Corp., 345 Ark. at 481, 49 S.W.3d at 648. (“[N]egligence cannot be predicated on a failure to anticipate the unforeseen.”) (quoting Keck v. American Emp. Agency, 279 Ark. 294, 652 S.W.2d 2 (1983)). Proof of an accident, with nothing more, is not sufficient to make out a claim for negligence, see Mahan v. Hall, 320 Ark. 473, 897 S.W.2d 571 (1995), and harm that is merely possible is not necessarily reasonably foreseeable. Boren v. Worthen Nat. Bank, 324 Ark. 416, 427, 921 S.W.2d 934, 941 (1996) (“[C]onceivability is not the equivalent of foreseeability.”) (quotations and citations omitted). In Judge Cardozo’s immortal words: “Negligence in the air, so to speak, will not do.” Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 341, 162 N.E. 99, 99 (1928); see also Hill v. Wilson, 216 Ark. 179, 183, 224 S.W.2d 797, 800 (1949) (“There is no such thing as ‘negligence in the air’. Conduct without relation to others cannot be negligent; it becomes negligent only as it gives rise to an appreciable risk of harm to others.”).
The question, however, is not whether a defendant could have reasonably foreseen the exact or precise harm that occurred, or the specific victim of the harm. See Wallace v. Broyles, supra. It is only necessary that the defendant be able to reasonably foresee an appreciable risk of harm to others. Id. An example of this distinction is contained in a landmark case cited by this court in Broyles. See Jordan v. Adams, 259 Ark. 407, 533 S.W.2d 210 (1976). In Jordan, Adams sued for injuries sustained when Jordan, enraged by an argument that he had with a man who was talking to his female companion, threw his companion’s purse across a crowded bar dining room, causing a pistol inside the purse to discharge and hit Adams in the leg. Jordan argued that Adams was not a foreseeable plaintiff, because he did not know that the pistol was inside the purse when he threw it. The circuit court disagreed, and this court affirmed. We said: “if the act is one which the party in the exercise of ordinary care ought to have anticipated was likely to result in injury to others, then such person is liable for the injury proximately resulting therefrom although he may not have foreseen the particular injury which did happen.” Jordan, 259 Ark. at 411, 537 S.W.2d at 212. In agreeing that Adams was a foreseeable plaintiff we said that even assuming that Jordan did not know that the pistol was in the purse, “it was a culpably negligent act for him to throw a purse (large enough to hold a pistol and other things a woman carries therein) 26 feet across an area where people were dining and drinking.” Id. at 412, 533 S.W.2d at 213. Citing Palsgraf v. Long Island R.R. Co., supra, we held that Adams was a foreseeable plaintiff: “Mrs. Adams was certainly within the foreseeable group of persons who might be injured by Jordan’s negligence, and it was not necessary that he foresee the exact manner in which the injury would be caused.” Id.
Under the Jordan reasoning, Mr. Gill was unquestionably a foreseeable plaintiff. Employees setting up the concession stand, as well as members of the public, would certainly be expected to come into contact with the concession trailer. There was, further, evidence that Coca-Cola had significantly changed the trailer’s electrical system that first had the two-plug, 50-amp cord and additional evidence that Coca-Cola had chosen not to install an auxiliary ground system using the eight-foot metal rod and, indeed, had removed the lug nut on the trailer’s tongue. Mr. Easterwood testified that the use of an auxiliary grounding system was standard practice in his industry. There was also testimony, including that of Peter Reynolds, that a permanently attached cord inside the trailer that had to be threaded through a metal hole could cause more wear and tear to the cord itself, conceivably causing it to short out. Mr. Reynolds, in his expert testimony, expressly concluded that three things had to go wrong to cause the accident: (1) no ground connection in the shed; (2) no secondary grounding system using the lug nut; and (3) electricity transferred from the shed to the trailer by means of the cord. We conclude that this evidence easily qualified as substantial on the foreseeability point regarding Mr. Gill as well as on causation. Ethyl Corp. v. Johnson, supra.
Coca-Cola’s history of no accidents in the past does not defeat this analysis. An abundance of good luck does not shield a defendant from guarding against foreseeable risks. Accord Advance Chemical Co. v. Harter, 478 So.2d 444, 448 (Fla. Dist. Ct. App. 1985) (“if the injury is reasonably foreseeable, even if rare, the seller cannot rely on its history of good fortune to exempt itself from liability.”). As in Jordan, where the defendant’s asserted lack of knowledge of the contents of the purse that he tossed across a crowded room did not exempt him from owing a duty of ordinary care to the patrons of the bar, Coca-Cola’s lack of knowledge that Fordyce Fligh School’s electrical outlet in the shed was defectively grounded does not defeat its duty, under these facts, to take ordinary, prudent precautions to protect Mr. Gill, including an auxiliary grounding system. Not only did Coca-Cola fail to install an auxiliary grounding system for the trailer, but it failed to test the grounding system in the shed to assure that it was operational.
Coca-Cola owed a duty of ordinary care to Mr. Gill. But, in addition, the fact that Mr. Gill and members of the public would be coming into contact with the trailer and would be harmed if the trailer was not properly grounded was a foreseeable risk. We affirm the circuit court on this point.
II: Waymatic Allegations
Coca-Cola next argues that it should have been allowed to use at trial the Gills’ allegations against Waymatic contained in their first and second amended complaints. It argues that the Gills’ specific and detailed products-liability claims against Waymatic, when contrasted with the “bare allegations” of negligence against Coca-Cola, established Waymatic as the primary tortfeasor early on. Coca-Cola argues that the circuit court misunderstood the governing precedents and, thus, erred in deciding this question. It cites Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001), in support of its argument.
The Gills answer that it named both Coca-Cola and Waymatic as defendants in its complaint, and that neither party was clearly the “target defendant” in the first lawsuit so as to prejudice Coca-Cola when it was tried alone. They also point out that Coca-Cola received credit, $100,000, from the Waymatic settlement, which means no prejudice was visited on Coca-Cola by the court’s disallowance of this impeachment. Finally, they emphasize that the Dodson case was handed down several months after the circuit court ruled on the admissibility of the complaints.
Coca-Cola is correct that the circuit court relied on the wrong line of cases, including Razorback Cab of Fort Smith, 304 Ark. 323, 802 S.W2d 444 (1991), in excluding use of the allegations made in the Gills’ complaint for impeachment purposes. The question presented in Razorback Cab was “whether a complaint may be properly introduced in evidence to sustain the plaintiffs case.” Razorback Cab, 304 Ark. at 325, 802 S.W.2d at 445 (emphasis in original). This court held that it could not. That holding followed the earlier cases of Wright v. Hullett, 245 Ark. 152, 431 S.W.2d 486 (1968) and Henry Wrape Co. v. Barrentine, 129 Ark. 111, 195 S.W. 27 (1917). Thus, Razorback Cab is descended from cases that prohibit plaintiffs from using their own pleadings as evidence. The rule exists because complaints, which are “normally phrased in the most partisan language,” are inadmissible because they are self-serving. Razorback Cab, 304 Ark. at 325, 802 S.W.2d at 445.
On the other hand, as Coca-Cola contends, Dodson v. Allstate Ins. Co., supra, and its predecessors hold that a party’s complaint may be used as impeachment evidence against that party and the statements made in a complaint are admissions for impeachment purposes. See Dodson, supra. Accord Jernigan v. State, 38 Ark. App. 102, 828 S.W.2d 864 (1992) (allowing the use of a defendant’s complaint filed in an earlier civil suit to impeach her at her criminal trial). Cf. McDaniel v. State, 291 Ark. 596, 726 S.W.2d 679 (1987) (use of a transcript of a plea agreement hearing admissible to impeach defendant). But see Missouri Pac. R.R. Co. v. Zolliecoffer, 209 Ark. 559, 563, 191 S.W.2d 587, 589 (1946) (holding that admissions in a complaint are not admissible where the complaint was not signed or verified, and the plaintiff testified that the allegations in the complaint were “entirely those of his attorneys.”).
In Dodson, the circuit court had refused to allow Dodson, as plaintiff, to use as evidence withdrawn allegations in the defendants’ counterclaim where they asserted that Dodson was performing illegal and fraudulent acts in providing physical-therapy treatment. This court reversed the circuit court and held that Dodson was entitled to use withdrawn allegations of Dodson’s wrongdoing for impeachment purposes against defendant Allstate Insurance’s stance at trial that it never asserted Dodson had done anything wrong.
We conclude that the circuit court ruled correctly, albeit it relied on the wrong line of cases in doing so. In reaching our conclusion, we are persuaded in part by the reasoning of our court of appeals in Belz-Burrows, L.P. v. Cameron Const. Co., 78 Ark. App. 84, 78 S.W.3d 126 (2002). In Cameron, the owner of a development sued its general contractor for constructing the project in an unworkmanlike manner. The general contractor, in turn, sued the owner’s tenant for misuse of the premises, but then nonsuited its cause of action against the tenant. At trial, the owner sought to introduce proof of the nonsuit to show that if the contractor believed the tenant was to blame, it would not have nonsuited its cause of action. The court of appeals then drew a distinction between a withdrawn pleading such as occurred in Dodson and filing a nonsuit:
[T]here is a significant difference between the admissibility of a withdrawn pleading and the admissibility of the fact that a non-suit was taken. The admissibility of a withdrawn pleading rests on the fact that it is considered an admission and is inconsistent with the present position of the party who filed it. When a party states a fact in a pleading, he is averring that it is true; therefore, if at trial he takes a position contrary to the one taken in the pleading, a clear inconsistency is revealed. The same reasoning does not necessarily apply to the taking of a nonsuit. Unlike a pleading, a nonsuit is not defined by its content; it does not necessarily express a statement or assert a position. A pleader who takes a nonsuit does not necessarily admit that his suit has no basis; rather, a nonsuit is often taken for other reasons, such as settlement or trial strategy. In light of that fact, we are reluctant to accord a nonsuit the same impeachment value as a withdrawn pleading. We cannot say, therefore, that the trial court abused its discretion in excluding the nonsuit from evidence.
Cameron, 78 Ark. App. at 91-92, 78 S.W.3d at 131.
In the case at hand, the Gills and Waymatic settled, and the Gills nonsuited their complaint against Waymatic. We believe, as the court of appeals held in Cameron, that a nonsuit following settlement differs from a situation where allegations have been simply withdrawn. We are also reluctant, as was the circuit court, to permit the impeachment requested by Coca-Cola due to its potentially negative implications for parties who wish to settle. But, more significantly, in the instant case, Coca-Cola sought to use nonsuited allegations against a former party-defendant, Way matic, as evidence that Coca-Cola was not the primary tortfeasor. Coca-Cola cites us to Dodson and certain predecessors but adduces no authority for using a plaintiff s nonsuited allegations against a former party-defendant, and we know of none. We conclude that to allow this impeachment would ultimately have been confusing to the jury and suggestive of the fact that a settlement had occurred between the Gills and Waymatic. We hold that there was no abuse of discretion on the part of the circuit court in denying Coca-Cola the right to use the allegations made against Waymatic.
Ill: Expert Witness
Coca-Cola next questions (1) the circuit court’s qualification of Jimmy Clark as an expert witness for the Gills on electricity, and (2) the circuit court’s refusal to strike Mr. Clark’s testimony as incompetent expert testimony. It urges that in both instances this was an abuse of discretion by the circuit court under our Rules of Evidence and our case law and adduces Ark. R. Evid. 702 and Farm Bureau Mut. Ins. Co. of Ark. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000) in support of its argument.
We address the issue of Mr. Clark’s qualifications first. He testified that he began working at one of ALCOA’s Arkansas plants when he was seventeen years old and worked as a helper for the plant’s chief electrical engineer, Robert McAdory. In this role, he became interested in Mr. McAdory’s library of electrical engineering books, and with his encouragement, he studied them and eventually got a job in Mr. McAdory’s department. Mr. Clark testified that although the ALCOA plant did not have an apprenticeship program for electricians, he took tests to become certified as an electrician, which he passed. At the same time, Mr. McAdory tutored him and allowed him to study the materials in an electrical engineering course he was taking. Mr. Clark added that he took correspondence courses in electrical engineering.
He eventually became a journeyman electrician and the head electrician at the ALCOA plant, a title he held for eighteen years. He testified that “head electrician” was an informal title but that he was good enough to be given work normally assigned to electrical engineers. He stated that his duties included design work on electrical projects. Mr. Clark further testified that he started a house-wiring business on the side during his tenure at ALCOA, where he employed up to six people. He testified that, as part of this business, he became a master electrician for the state.
On voir dire, Mr. Clark admitted that he did not currently have an electrician’s license or an electrical engineering license, and he stated that he did not consider himself an electrical engineer. He admitted that he had not worked actively in electrical matters since 1970 but that he did maintain an interest in the field and had kept abreast of developments. He further testified that, although the field had changed since 1970, the “elementary things stay the same.” He also admitted that he was unfamiliar with the intricacies of the National Electrical Code.
The circuit court qualified Mr. Clark as an expert on the subject of electricity and as a fact witness, because he had inspected the trailer and been to the Coca-Cola plant with Gills’ counsel. The court ruled:
Let me sum up what we have here. We have a witness who has some expertise. His license is not current, but he is not a practicing electrician. So, he doesn’t have to have a license. He possesses sufficient knowledge, skill, training, and education to testify about the subject matter before him, plus he is a fact witness to testify about what he saw and observed. So I will qualify him both as fact and expert, (sic) He may express opinions.
The Arkansas Rules of Evidence are helpful in resolving this issue. Rule 702 reads:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Ark. Rule Evid. 702. We review a circuit court’s qualification of a witness as an expert for an abuse of discretion. E.g., New Prospect Drilling Co. v. First Commercial Trust, 332 Ark. 466, 966 S.W.2d 233 (1998). In 2000, this court adopted the seminal United States Supreme Court case interpreting Rule 702. See Farm Bureau Mut. Ins. Co. of Ark. v. Foote, supra, (adopting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)). Under Foote and Daubert, the circuit court must make a preliminary assessment of whether the reasoning or methodology underlying expert testimony is valid and whether the reasoning and methodology used by the expert has been properly applied to the facts in the case. See Foote, 341 Ark. at 116, 14 S.W.3d at 519. Rule 702 guidelines apply equally to all types of expert testimony and not simply to scientific expert testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).
Rule 702 does not condition the admissibility of an expert’s testimony solely on the expert’s professional accolades or lack thereof. See Daubert, supra; John Parker Const. Co. v. Aldridge, 312 Ark. 69, 847 S.W.2d 687 (1993) (experts may be qualified by experience, knowledge, or training, and need not be licensed professionals); see also, e.g., Tank v. C.I.R., 270 F.2d 477 (6th Cir. 1959) (absence of certificates, memberships, and other professional honors does not in and of itself make a witness incompetent as an expert.); Dickerson v. Cushman, Inc., 909 F.Supp 1467 (M.D. Ala. 1995) (lack of degree or license in professed area of expertise goes to weight of expert’s testimony, not its admissibility).
Coca-Cola argues that “[a]t best, Clark had stale experience and a cavalier attitude about the qualifications necessary to be an electrician.” We conclude, however, that questions surrounding the staleness of Mr. Clark’s electrical experience affected the weight to be given his testimony, and not whether he should be qualified as an expert. The circuit court also had Mr. Clark’s testimony that he was current with developments in his field. Fie certainly had considerable training and work experience in electricity, and he informed the jury about basic principles of conductivity and the grounding of electrical power. He was not required to have an electrician’s license to testify. We hold that Mr. Clark’s knowledge and experience were sufficient to assist the trier of fact in understanding the evidence and in determining the fact issues, which is the test under Rule 702. The circuit court did not abuse its discretion in qualifying Mr. Clark as an expert in electricity.
We turn next to Coca-Cola’s assertion that Mr. Clark’s testimony was incompetent expert testimony. According to Coca-Cola, under Rule 702, the circuit court must make certain that there is an adequate nexus between the expert’s conclusions and the methodology used to arrive at those conclusions. Coca-Cola points out that the circuit court is under no obligation “to admit opinion evidence which is connected to the existing data only by the ipse dixit of the expert.” General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997). In short, Coca-Cola urges that the expert must explain how his methodology, when applied to the actual facts of the case, leads ineluctably to the opinion offered. See id. Coca-Cola argues that Mr. Clark’s methodology fell short. According to Coca-Cola, it consisted merely of walking around the accident site, which does not provide an adequate foundation for an opinion that the electrical cord caused the accident. Furthermore, Coca-Cola emphasizes that Mr. Clark conducted no tests on the electrical cord or on any other part of the trailer or on the field shed outlet.
In examining Mr. Clark’s testimony, we ascertain that his principal points were (1) that a short in the field shed receptacle by itself was not the cause of the injury to Mr. Gill; (2) that the trailer should have been grounded with a metal rod; and (3) that what made the accident possible was a short in the trailer’s power cord. With respect to the first two points, the testimony adduced at trial and by deposition gave him a sufficient basis of data upon which he could construct an expert opinion. See Ark. R. Evid. 703. Mr. Clark specifically mentioned in his testimony that he had read the depositions of Mr. McMillan, who examined the trailer immediately after the accident, Mr. Buie, and one of the officers of Waymatic. In addition, he had studied relevant photographs. His offered opinion was that, after applying general principles of electricity to these facts, he reached the conclusion that something in the electrical power supply to the trailer caused the accident. In our judgment, this constituted a satisfactory basis for rendering an expert opinion.
Regarding the third point, Mr. Clark personally observed the cord connected to the trailer when he and the Gills’ counsel visited the Camden warehouse and saw trailer #308 some four months after the accident. He concluded that the cord was shiny and new. Mr. Clark testified that he had seen thousands of power cords during his career working at ALCOA and in his consulting business and that that experience gave him a sufficient basis for determining whether a power cord was new simply by looking at it. He concluded, based on this observation, that the cord had been replaced between the time of the accident and the time of his observation. He then went on to testify, as an expert witness who was qualified by virtue of his experience, that the old cord might have been damaged and that this might have caused the electrical short to the trailer. This testimony was corroborated by Peter Reynolds, who testified that the weakest part of any piece of portable electrical equipment is the cord. Other witnesses, including Coca-Cola’s own expert, Mr. Buie, testified that the power cord might undergo significant wear and tear. We cannot say that Mr. Clark’s opinion that the cord had been replaced and that an old, damaged cord could have caused the short was incompetent evidence. There was no error in allowing Mr. Clark’s opinion in this regard.
We note, as a final point, that Coca-Cola makes much of Mr. Clark’s statement that his opinion that the cord was 95% the likely cause of the accident was a “wild guess” and speculation. But Mr. Clark added that he was 100% certain that an electrical failure in the cord or the trailer was the cause. We agree with the circuit court, which decided against striking Mr. Clark’s testimony on this point, that Mr. Clark believed the original power cord was missing and that conditions on the day of the accident could not be replicated. Thus, by necessity, since the original cord could not be examined, his testimony about the percentage of causation due to a faulty cord was speculation. Mr. Clark’s lack of certainty about the role of the cord in the accident goes to the weight of his opinion, not its admissibility. The circuit court’s announced ruling was that Coca-Cola was free to cross-examine Mr. Clark about these statements. The circuit court did not err in this regard.
Because we conclude that Mr. Clark’s testimony was competent expert testimony, we need not address Coca-Cola’s contention that his testimony tainted the entire trial.
Affirmed.
Corbin, Thornton, and Hannah, JJ., dissent.
There was no contention at trial or in this appeal that a replacement cord was a subsequent remedial measure subject to exclusion under Ark. R. Evid. 407. | [
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Jim Hannah, Justice.
A Pulaski County jury convicted stice. Benavidez of the capital murder of Daniela Araujo-Hernandez and sentenced him to life imprisonment. His sole claim on appeal is that the trial court erred by denying his motion to suppress because the Georgia police officers who arrested him did so by making a “search warrantless” entry into a third party’s home without having a reasonable behef that the home was Benavidez’s residence. We hold that the trial court’s denial of Benavidez’s motion to suppress was not clearly erroneous and, accordingly, we affirm. We have jurisdiction of this case pursuant to Ark. Sup. Ct. R. 1 — 2(a)(2) (2002).
Facts
On August 3, 2000, Benavidez filed a motion to suppress evidence, alleging that members of the Chamblee Police Department of Chamblee, Georgia, conducted a warrantless search of a residence where he had rented a room. Benavidez alleged that during a search of the room he occupied, certain items were discovered and seized by the police in violation of his Fourth and Fourteenth Amendment rights.
At the suppression hearing, the following testimony was adduced. Following the murder, Benavidez left Arkansas, and officers investigating the murder obtained information that Benavidez was staying in Georgia. On November 4, 1999, Ellis West-brooks, a sergeant of the Chamblee Police Department, in Chamblee, Georgia, received a copy of a warrant authorizing Benavidez’s arrest for capital murder from the Jacksonville Police Department in Jacksonvifle, Arkansas. The Jacksonville police informed Westbrooks that Benavidez was staying at 3554 Shallowford Road, Apartment E-ll, in Chamblee. The Jacksonville police also informed Westbrooks that Benavidez was driving a 1989 blue, two-door Pontiac Grand Am with Arkansas plates. In addition, the Jacksonville police provided a picture of Benavidez to the Chamblee police and told the officers that Benavidez might be armed.
Lieutenant Peabody, an officer of the Chamblee Police Department, located Benavidez’s car in the parking lot of the apartment complex located at 3554 Shallowford Road. Peabody called Westbrooks and told him that he had spotted the vehicle, and Peabody and Westbrooks, along with another Chamblee police officer, went to Apartment E-ll, at the Shallowford Arms apartment complex and knocked on the door.
An Asian female answered the door, and the officers told the woman that they had a warrant to arrest Benavidez. She pointed to the bedroom. The officers went to the bedroom and found two men sleeping on the floor of an unfurnished room. The officers turned on the light and woke up the two men in the room. Using the picture provided by the Jacksonville police, Westbrooks identified Benavidez as one of the persons in the room.
Benavidez was not wearing a shirt and, since it was cold outside, Westbrooks reached into an open closet to get a shirt for Benavidez. When Westbrooks reached for the shirt, he saw an identification card and pulled it out. Westbrooks looked at the identification card and gave it to Peabody. Westbrooks again reached for the shirt and when he grabbed it, he found a .380 caliber pistol. Benavidez was then placed under arrest.
Benavidez stated that at the time he was arrested, he had been living at the apartment for four days. He stated that he was staying at the apartment with the permission of the Asian woman who hved there. According to Benavidez, after he met someone “in the street” and asked where he could rent a place to live, he was told to go to the apartment where the Asian woman lived. Benavidez testified that he paid $125.00 to stay in the apartment, and that the only belongings he had in the apartment were some clothing, his identification card, and a .380 caliber pistol.
At the suppression hearing, Benavidez argued that he had standing to contest the “search.” He also argued that the arrest warrant alone, without proper consent or exigent circumstances, was not enough to allow officers to enter the apartment. In addition, Benavidez argued that the officers did not have reasonable belief that their safety was at issue or that there was any need for a protective sweep.
At the conclusion of the hearing, the trial court made several findings. The trial court held that Benavidez did have standing to assert a Fourth Amendment violation. The trial court found that Westbrooks’s discovery of the gun was inadvertent, that it met the requirements of a plain-view search, and that Westbrooks was in a place where he lawfully had a right to be. The trial court also found that the issue of whether the woman answering the door gave consent for the officers to enter was irrelevant because the officers had an arrest warrant. Benavidez’s motion to suppress was denied.
Standard of Review
When reviewing a motion to suppress, the court makes an independent determination based on the totality of the circumstances and reviews the evidence in the light most favorable to the appellee. Howell v. State, 350 Ark. 552, 89 S.W.3d 343 (2002). We note that the arrest and seizure of evidence took place in Georgia. This court has previously held that Mississippi law applies to determine whether an arrest was valid in a situation where an Arkansas defendant was arrested in Mississippi. See Criddle v. State, 338 Ark. 744, 1 S.W.3d 436 (1999); Jackson v. State, 241 Ark. 850, 410 S.W.2d 766 (1967). In the present case, we must look to Georgia law, to the extent that it does not conflict with the United States Constitution, to determine the reasonableness of the officers’ conduct in executing the arrest warrant and seizing the evidence.
In determining the lawfulness of law enforcement officers’ conduct, Georgia follows the approach taken by the United States Supreme Court, stating that “the touchstone of the Fourth Amendment is reasonableness.” Padron v. State, 562 S.E.2d 244, 247 (Ga. Ct. App. 2002) (citing Florida v.Jimeno, 500 U.S. 248, 250 (1991)). “Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances.” Ohio v. Robinette, 519 U.S. 33, 39 (1996).
We give respectful consideration to the findings of the trial court, and we must defer to the superior position of the trial court to pass upon the credibility of witnesses. Davis v. State, 351 Ark. 406 (2003) (citing State v. Osborn, 263 Ark. 554 (1978)). We will reverse only if the trial court’s ruling on a motion to suppress is clearly erroneous. Howell, supra.
Benavidez concedes that the Georgia police officers who arrested him had a valid arrest warrant; however, he argues that the trial court should have granted his motion to suppress evidence because the Georgia police officers did not have a valid search warrant. In Steagald v. United States, 451 U.S. 204 (1981), the United States Supreme Court held that, although an arrest warrant carries with it the authority to enter a suspect’s residence to arrest him or her, it does not give the authority to enter the residence of a third party to search for the subject of the arrest warrant, absent consent or exigent circumstances. However, in Payton v. New York, 445 U.S. 573, 603 (1980), the Court stated that
for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.
In the present case, there is no dispute that the arrest warrant for Benavidez was founded on probable cause. With the valid warrant, the Chamblee officers had the authority to enter the apartment where Benavidez was living if the officers had reason to believe that Benavidez lived in the apartment and that Benavidez was present in the apartment at the time the warrant was executed.
Clearly, the officers had reason to believe that Benavidez was present in the apartment at the time the warrant was executed. The Jacksonville police had informed Westbrooks that Benavidez was staying at 3554 Shallowford Road, Apartment E-ll, in Chamblee, and Westbrooks had been told that Benavidez was driving a 1989 blue, two-door Pontiac Grand Am with Arkansas plates. While on patrol, Lieutenant Peabody located Benavidez’s car in the parking lot of the apartments located at 3554 Shallowford Road and called Westbrooks and told him that he had spotted the vehicle.
Benavidez argues that
the State may attempt to argue that the apartment was Appellant Benavidez’s residence and, therefore, with a valid arrest warrant the police could enter his residence and arrest him. If the State makes such an argument, it must inevitably depend on facts discovered by the Georgia police while or after they arrested Appellant Benavidez. Such after-the-fact evidence will not support the State’s argument. According to the Payton rule, the police must have a reasonable belief before they enter the defendant’s residence that the residence is, in fact, the defendant’s residence.
When asked what information he had pertaining to who was living at the apartment, Westbrooks stated: “We didn’t have any information who was living at the apartment; that he may be there. If we found the car there, he probably would be staying there.” At issue is whether the arrest for Benavidez provided the police officers with legal authority to enter the apartment, thereby validating the seizure of evidence that was in plain view.
From the totality of the circumstances, it was reasonable for the Georgia police to believe prior to the execution of the arrest warrant that Benavidez was both living in Apartment E-ll and actually present inside the apartment. The Georgia police officers had received information from the Jacksonville police that Benavidez was driving a 1989 blue, two-door Pontiac Grand Am with Arkansas plates, and that if the car was at the apartment complex located at 3554 Shallowford Road, Chamblee, Georgia, then Benavidez probably would be staying in Apartment E-ll. Subsequent to receiving this information, the Georgia police officers discovered the subject car parked at the subject apartment complex.
The trial court’s denial of Benavidez’s motion to suppress was not clearly erroneous. The officers reasonably believed that Benavidez was residing at the apartment and they reasonably believed that Benavidez was present at the apartment at the time they went to execute the warrant. The officers entered the bedroom where Benavidez was sleeping and positively identified him. Westbrooks reached into an open closet to get a shirt for Benavidez; there is no evidence that he was conducting a search when he reached into the closet. Westbrooks inadvertently discovered the gun and identification card, which were wrapped in the shirt. The gun and the identification card were in plain view. The seizure .of the evidence in plain view was valid.
Rule 4-3(h) Review
In compliance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Benavidez, and no error has been found.
Affirmed.
Glaze, J., concurs.
Corjbin, J., not participating.
We note that the facts in the present case are distinguishable from the facts in Steagald v. United States, 451 U.S. 204 (1981). In Steagald, the Court stated: “The issue here ... is not whether the subject of an arrest warrant can object to the absence of a search warrant [for] . . . another person’s home, but rather whether the residents of that home can complain of the search.” 451 U.S. at 219. | [
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JIM HANNAH, Chief Justice.
_JjThis is an interlocutory appeal of the Clark County Circuit Court’s order granting a motion for class certification pursuant to Arkansas Rule of Civil Procedure 23. Appellants Advance America Servicing of Arkansas, Inc. (Servicing); Advance America Cash Advance Centers of Arkansas, Inc. (Advance America/Arkansas); and Advance America Cash Advance Centers, Inc. (Centers) (collectively Advance America) contend that the circuit court abused its discretion in granting a motion filed by appellee Brenda McGinnis seeking class certification because McGinnis is not an adequate class representative. Advance America asserts that McGinnis cannot adequately represent the class because she |2is incapable of making decisions in the best interests of the class due to her untreated mental illness and because she is not familiar with the basic facts of the lawsuit. Advance America also asserts that there is no evidence that McGinnis comprehends her duties and responsibilities as a class representative. Additionally, Advance America claims that McGinnis cannot represent the class because she has conflicts of interest with the class. Specifically, Advance America claims that McGinnis’s lack of damages undermines her incentive to prosecute the case vigorously. Advance America also claims that McGinnis has a conflict of interest with the class because she did not participate in a prior court-approved settlement. Finally, Advance America contends that McGinnis has a conflict of interest with the class because she lacked a contractual relationship with Advance America.
This is a second or subsequent appeal following an appeal which has been decided in this court. See Advance Am. Servicing of Ark., Inc. v. McGinnis, 375 Ark. 24, 289 S.W.3d 37 (2008). Thus, our jurisdiction of the instant case is pursuant to Arkansas Supreme Court Rule 1 — 2(a)(7) (2008). We affirm the circuit court’s order certifying the class.
McGinnis filed a putative class-action complaint against Advance America on February 27, 2007, alleging Advance America had charged her and other potential class members usurious interest, engaged in deceptive conduct in violation of the Deceptive Trade Practices Act (DTPA), and violated a prior court-approved settlement. On May 7, 2007, McGinnis filed a motion for class certification. Advance America opposed the ^certification, and on February 29, 2008, the circuit court held a hearing on the motion. Advance America argued, among other things, that McGinnis was an inadequate class representative because her untreated schizophrenia and other mental illnesses, for which she does not take the prescribed medication, rendered her incapable of making decisions in the best interests of the class as to the conduct of the litigation. Advance America also argued that McGinnis’s lack of damages, lack of participation in a prior court-approved settlement, and a lack of a contractual relationship with Advance America undermine the class’s ability to enforce many of its claims and, therefore, create conflicts of interest between McGinnis and the class. In response, counsel for the proposed class asserted, among other things, that McGin-nis was an adequate representative because she was an involved plaintiff, had appeared at a two-day deposition, and was present at the class-certification hearing. Further, counsel for the proposed class asserted that McGinnis understood her duties as class representative and testified in her deposition that she was willing to spend her own money, and even mortgage her own house, if necessary, to cover the costs of filing suit. Counsel for the proposed class submitted McGinnis’s deposition testimony to the circuit court at the hearing. McGinnis was present at the hearing, but she did not testify.
On April 15, 2008, the circuit court entered an order certifying a class of all persons “who have engaged in check cashing or deferred presentment transactions with the Defendants in Arkansas since February 27, 2002 up through and including the date of the entry of judgment in this case.” Included in the order were the following findings, withprespect to McGin-nis’s adequacy as a class representative:
The Court finds no evidence that Ms. McGinnis is not competent or is unable to fulfill the necessary duties as class representative. Based on the evidence in the record, the Court finds that Brenda McGinnis is an adequate class representative in this case.
The named Plaintiff has displayed a significant level of interest in this action and has the ability to assist in decision making as to the conduct of the litigation.
The named Plaintiff has given her deposition in this case and appeared at the hearing on class certification.
There is no evidence of collusion or conflicting interests between the representative named Plaintiff and members of the class.
This appeal followed.
Circuit courts are given broad discretion in matters regarding class certification, and we will not reverse a circuit court’s decision to grant or deny class certification absent an abuse of discretion. See Asbury Auto. Group, Inc. v. Palasack, 366 Ark. 601, 237 S.W.3d 462 (2006). When reviewing a circuit court’s class-certification order, this court reviews the evidence contained in the record to determine whether it supports the circuit court’s decision. See id. This court does not delve into the merits of the underlying claims at this stage, as the issue of whether to certify a class is not determined by whether the plaintiff has stated a cause of action for the proposed class that will prevail. See Am. Abstract & Title Co. v. Rice, 358 Ark. 1, 186 S.W.3d 705 (2004). When reviewing findings of fact by a circuit court, this court uses a clearly erroneous standard. See Ark. R. Civ. P. 52(a) (2008). Thus, findings by the circuit court will not be set aside unless they are clearly against the ^preponderance of the evidence. See id.
Rule 23 of the Arkansas Rules of Civil Procedure provides in relevant part:
(a) Prerequisites to Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties and their counsel will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. At an early practicable time after the commencement of an action brought as a class action, the court shall determine by order whether it is to be maintained. For purposes of this subdivision, “practicable” means reasonably capable of being accomplished. An order under this section may be altered or amended at any time before the court enters final judgment. An order certifying a class action must define the class and the class claims, issues, or defenses.
Rule 23 provides the requirements for class certification. Specifically, the following six requirements must be met before a lawsuit can be certified as a class action under Rule 23:(1) numerosity; (2) commonality; (3) typicality; (4) adequacy; (5) predominance; and (6) superiority. See Asbury Auto. Group, supra.
In this appeal, Advance America challenges only one of the six Rule 23 requirements — adequacy. Therefore, we need not address the remaining five requirements.
Rule 23(a)(4) specifically requires that the representative parties and their counsel be able to adequately protect the interests of the class. This court has previously interpreted |,¡Rule 23(a)(4) to require three elements: (1) the representative counsel must be qualified, experienced, and generally able to conduct the litigation; (2) that there be no evidence of collusion or conflicting interest between the representative and the class; and (3) the representative must display some minimal level of interest in the action, familiarity with the practices challenged, and ability to assist in decision making as to the conduct of the litigation. See, e.g., Mega Life & Health Ins. Co. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997).
In her request for certification, McGin-nis stated that her attorneys, Todd Tur ner, Dan Turner, Chris A. Averitt, and Jay Scholtens would fairly and competently represent the class. While Advance America contended before the circuit court that counsel for the class were unqualified, it has abandoned that argument on appeal. We have held that absent a showing to the contrary, we may presume that the representative’s attorney will vigorously and competently pursue the litigation. See, e.g., USA Check Coshers of Little Rock v. Island, 349 Ark. 71, 76 S.W.3d 243 (2002). We hold that the first element of the adequacy requirement has been established. We now turn to the other elements of Rule 23(a)(4) and address Advance America’s arguments on appeal, beginning with the third element — whether McGinnis displays some minimal level of interest in the action, familiarity with the practices challenged, and the ability to assist in decision making as to the conduct of the litigation.
Mental Illness
17Advance America contends that McGinnis’s untreated mental illness renders her incapable of making decisions in the best interests of the class. Specifically, Advance America states that McGin-nis’s admitted schizophrenia, anxiety, and depression, coupled with her refusal to take the prescribed medication to treat these conditions, disqualify her as an adequate class representative. Advance America claims that McGinnis does not have the mental capacity to make sound decisions on behalf of the class or otherwise carry out the duties of a class representative.
McGinnis’s deposition testimony revealed the following. McGinnis stated that she graduated from Jonesboro High School. She stated that after graduating, she worked at a cleaners for a couple of years, and then she worked at Riceland Foods for approximately fifteen years. McGinnis stated that after she got laid off from Riceland, she worked at Arkansas Glass Factory for a couple of years. She stated that she left that job in 1993 when she became sick with “nerve problems,” and she has not worked since that time. McGinnis said that, at that time, she almost had a nervous breakdown, but that she is doing better now. McGinnis stated that her only source of income is social security disability that she receives due to “nerve problems and different things.”
McGinnis stated that she began seeing a psychiatrist in 1995, and that he diagnosed her with schizophrenia. She said that she stopped seeing the psychiatrist in 2000 because she could not afford treatment. Currently, McGinnis receives mental-health services from her family physician, who prescribes Xanax and Imipramine for depression and anxiety. She ^testified that she has hallucinations in which she sees people and hears voices that are not really there. According to McGinnis, she has been hallucinating for at least twenty years.
Advance America contends that further evidence of McGinnis’s inability to make decisions on behalf of the class is the fact that she testified that she currently transacts business with other check cashers and does not inform her husband, with whom she shares checking and savings accounts. In addition, Advance America points to McGinnis’s deposition testimony where she admitted that she entered into an agreement with another check casher, despite her belief that the interest rate was usurious.
Advance America contends that, absent proper treatment, especially in light of her admitted hallucinations and continuing problems with mental illness, McGinnis does not have the capacity to assist in making decisions that are in the best interests of the class as to the conduct of the litigation. Moreover, Advance America contends, McGinnis’s actions in entering into deferred presentment transactions with higher fees than Servicing after filing the instant lawsuit demonstrate that her mental illness impairs her judgment.
Courts have recognized that persons with limited intellect or mental handicaps can serve as representative plaintiffs in class actions. See, e.g., Armstrong v. Davis, 275 F.3d 849 (9th Cir.2001) (stating that prisoners and parolees suffering from, among other things, learning disabilities and mental retardation were adequate representatives); Jenkins v. Hyundai Motor Fin. Co., 2008 WL 781862 (S.D.Ohio Mar. 24, 2008) (noting that plaintiffs | flsuffering from mental health issues such as depression and anxiety did not make her unfit and inadequate to represent the class); Daniels v. City of New York, 198 F.R.D. 409 (S.D.N.Y.2001) (stating that mental retardation of a class representative is not an automatic disqualifier, even where the class does not consist of mentally retarded persons).
Advance America contends that the circuit court erroneously relied on Armstrong v. Davis to support the conclusion that severe mental illness should not prevent an individual from serving as a class representative. In that case, the class representatives included prisoners and parolees suffering from mobility impairments, hearing disabilities, mental retardation, and renal impairments, and all of the absent class members suffered from at least one of these disabilities. 275 F.3d at 855 & n. 1. The class brought suit against California Board of Prison Terms, alleging that “the state’s policies and practices as implemented by both divisions discriminated against them on the basis of disability in violation of the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act, as well as violated the due-process clause of the Fourteenth Amendment.” Id. at 855.
Advance America points out that in Armstrong, the only class representatives who had standing or could have otherwise been adequate to bring an ADA claim were prisoners or parolees who suffered from the.named mental and physical disabilities. Advance America states that the instant case is not like Armstrong, because, here, McGinnis is not seeking to represent a class of people with schizophrenia or other mental illnesses suing for violations of law relating to such illnesses. Advance America states that, unlike in Armstrong, in the [)0present case, class members who are not mentally ill have standing to bring the claims on behalf of the class.
Advance America cites no authority for the proposition that a person suffering from a mental illness may serve as a class representative only when the class action involves allegations relating to that mental illness. Certainly, McGinnis’s mental illness does not automatically disqualify her from representing the class. We disagree with Advance America’s contention that the instant case is analogous to Roundtree v. Cincinnati Bell, Inc., 90 F.R.D. 7 (S.D.Ohio 1979). In that case, the court denied class certification in a race-related employment-discrimination case, in part because the “plaintiffs personal physical, mental and financial situation ma[d]e it unlikely that he could vigorously pursue a class action.” 90 F.R.D. at 10. The court noted that “[t]he medical reports on plaintiff introduced by defendant indicate that plaintiff has suffered physical ailments for at least ten years that have led to a neurosis that adversely affects his temperament” and that “[tjhese physical and mental factors may affect plaintiffs ability to vigorously participate in the prosecution of a class action.” Id.
Here, no medical reports were introduced indicating that McGinnis might not be able to vigorously participate in the prosecution of a class action. In fact, Advance America made no attempt to introduce McGinnis’s medical records, nor did it call McGinnis to testify at the certification hearing. After reviewing McGinnis’s deposition testimony, the circuit court found that there was “no evidence that Ms. McGinnis is not competent or is unable to fulfill Inthe necessary duties as class representative.” This finding is not clearly erroneous.
Familiarity with Basic Facts of the Lawsuit
Advance America next asserts that McGinnis is an inadequate representative because she is not familiar with the basic facts of the lawsuit. Advance America points to McGinnis’s deposition testimony where she was unaware of what kind of damages she was seeking and, specifically, whether she was seeking punitive damages or damages for emotional distress. Advance America also points to McGinnis’s deposition testimony where she could not remember when she first started doing business with Servicing or how many agreements she entered into with the company. In addition, Advance America states that McGinnis does not know that she sued two companies with which she never transacted business and that she believes that she sued individuals, despite the fact that she sued only companies. Advance America states that McGinnis does not know whether she seeks statewide or nationwide class certification or the time period at issue in the lawsuit. Further, Advance America states that McGinnis does not know whether Advance America’s conduct violated a prior court-approved settlement or the DTPA, as alleged in the complaint. In sum, Advance America contends that McGinnis is detached from her role as class representative and this compels the reversal of the circuit court’s order certifying the class.
McGinnis’s deposition testimony demonstrates that she understood the basic process used in her transactions with Advance America and that she believed Advance America’s practices were unlawful. For example, McGinnis testified regarding one of the transactions, 112in which she wrote a check to Advance America for $228.07 and was given cash in the amount of $200. She further testified that Advance America told her when the check would be presented for payment to her bank, and at that time, she could either repurchase the check for $228.07 or allow it to be presented to the bank. McGinnis testified that she believed $28.07 of the amount paid to Advance America was interest, and that the basis of the lawsuit was that Advance America had charged a usurious rate of interest in violation of the Arkansas Constitution.
In F & G Financial Services, Inc. v. Barnes, 349 Ark. 420, 82 S.W.3d 162 (2002), a payday lender challenged the adequacy of a plaintiff to represent the class, arguing that the plaintiff demonstrated a lack of knowledge about the terms of a settlement and was not aware of various facts about the case. We rejected this challenge, stating: “Despite Spencer’s lack of understanding of some legal terms involved in the case, Spencer clearly showed a minimal level of interest in this action in that she contacted her attorneys concerning the action.” F & G, 349 Ark. at 429, 82 S.W.3d at 167. We concluded that the representative satisfied “the minimal interest set by the third requirement derived from Rule 23(a)(4).” Id. at 429; 82 S.W.3d at 167.
The payday lender in F & G also objected to another representative, contending that she lacked the capacity to fairly and adequately represent the proposed class because she did not know who the defendant was in her own case and because she did not know who she next intended to sue. Id. at 429; 82 S.W.3d at 167-68. We again rejected the payday lender’s [ ischallenge, and stated: “Barnes testified that she understands that she is suing appellants and that her goal is to represent all the people who have done business with appellants, and to stop the usury on these loans. Again, Barnes meets the minimal bar set by the third requirement of Rule 23(a)(4).” Id. at 429; 82 S.W.3d at 168.
Here, the circuit court found that McGinnis understood the basic process used in Advance America’s transactions, understood the class’s usury claim, and was generally familiar with Advance America’s payday loan practices. These findings are not clearly erroneous. Despite her confusion over some of the facts of the case, McGinnis has demonstrated that she has shown a minimal level of interest in the litigation and a familiarity with the practices challenged.
Comprehension of the Duties and Responsibilities of Class Representative
Advance America asserts that McGinnis is an inadequate representative because she does not comprehend the nature and extent of her responsibilities and duties as a class representative. Advance America states that McGinnis has shown little interest in the case, and that she has not discharged any duties as a class representative. Advance America also notes that, while McGinnis attended the class-certification hearing, she did not testify. Advance America also states that McGin-nis lacks the finances to serve as class representative. Finally, Advance America states that McGinnis’s failure to disclose information in a request for admission demonstrates that she is an inadequate representative.
McGinnis testified in her deposition that she felt qualified to be class representative. _JjyShe stated that she took care of her home, paid her bills, and took care of her grandchild, so she thought she could manage being class representative. She stated that she understood that, as class representative, it was her responsibility to make sure that all members of the class received notice of the suit. McGinnis testified that she was not aware of all of her duties and responsibilities as class representative, but that she intended to learn more about them from her attorneys. As for understanding her financial obligation, McGinnis testified in her deposition testimony that she was willing to spend money for litigation and would even mortgage her house to pursue the lawsuit, if necessary. As for her failure to disclose information, in Request for Admission No. 28, Advance America requested that McGinnis admit: “as a condition of entering into a Customer Agreement with Advance America/Servicing, on or about January 3, 2007, you wrote a check to Advance America Servicing on which payment was stopped.” McGinnis denied this allegation, but she later admitted it in her deposition. McGinnis states that the basis of her denial in the request for admission was that the request was poorly worded. She explains that she did not stop payment on a check as a condition of entering into a customer agreement, but that she stopped payment later after she sought and received advice of counsel. Thus, she claims that her denial was appropriate and her subsequent testimony was truthful.
A review of McGinnis’s deposition testimony reveals that she satisfactorily comprehends her duties and responsibilities as class representative. McGinnis admitted that she was not aware of all her duties and responsibilities, but she demonstrated a willingness hBto consult with her attor neys and follow their instructions. She also testified that she was willing and able to finance the costs of litigation. As for her failure to disclose information in a request for admission, it appears that McGinnis may not have understood the question.
In sum, we conclude that Advance America has failed to demonstrate that McGinnis cannot adequately represent the class because (1) her untreated mental illness renders her incapable of making decisions in the best interests of the class, (2) McGinnis is not familiar with the basic facts of the lawsuit, and (3) McGinnis does not comprehend the nature and extent of her responsibilities and duties as a class representative. Therefore, we hold that the third element of the adequacy requirement has been satisfied.
Conflict of Interest — Lack of Damages
We now turn to McGinnis’s remaining arguments concerning adequacy. These arguments concern the second element of the adequacy requirement — that there be no evidence of collusion or conflicting interest between the representative and the class. Advance America does not assert that there is evidence of collusion between McGinnis and the class. Rather, Advance America asserts that there is evidence of conflicting interest between McGinnis and the class. Advance America first asserts that McGinnis’s lack of damages undermines her incentive to prosecute the case vigorously. McGinnis entered into six transactions with Servicing between September 1, 2006, and February 2, 2007. Each transaction was governed by a separate customer agreement, and McGinnis paid separate fees for all six transactions totaling $148.71. Pursuant to the last customer agreement, dated 116January 3, 2007, Servicing paid to McGinnis $250 in return for a personal check in the amount of $278.91, which was to be cashed on February 2, 2007. On the advice of counsel, McGinnis stopped payment on this check prior to February 2, 2007, and Servicing never received the total amount due of $278.91. Advance America contends that, although McGinnis paid a total of $143.71 in fees over the course of her business relationship with Servicing, she received and still owes to Servicing $250 for the January 3, 2007 advance. Advance America points out that McGinnis admitted that she had received more money from Servicing than she paid. Therefore, Advance America contends that McGinnis has suffered no monetary damages and has a conflict of interest with the class members who paid back the full amounts of their advances due to Servicing, in that she does not have the same incentive to prosecute the case as vigorously as class members who did not default on their customer agreements and who may have different claims for damages.
McGinnis contends that she has suffered the same types of damages as every class member and has demonstrated that she will vigorously prosecute this case. She states that the record contains undisputed evidence that Advance America exacted usurious interest from her on at least five separate instances, and that this proves that she and the class have usury claims and claims under the DTPA. Citing article 19, section 13 of the Arkansas Constitution, McGinnis states that she is entitled to double damages and a declaration that the loans are void. She states that the declaration is important to her and other class members, in light of Advance America’s aggressive efforts to collect payment from those who |17stopped paying the usurious interest.
Advance America, by asserting that McGinnis has not suffered any monetary damages, has attempted to defeat class certification by delving into the merits of the case. The circuit court’s proper focus in deciding whether to certify a class is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met. See Direct Gen. Ins. Co. v. Lane, 828 Ark. 476, 944 S.W.2d 528 (1997). It is totally immaterial whether the petition will succeed on the merits or even if it states a cause of action. See id.
At this point, we do not know if McGin-nis will prevail on the merits of her case, but that is irrelevant at this stage of the proceeding. Even if McGinnis ultimately fails to make her case as to damages, the question before the circuit court was whether the claims of McGinnis and the class members arise from the same wrong allegedly committed by Advance America. Here, it is clear that the claims of McGin-nis and the class members arise from the same wrong allegedly committed by Advance America — that Advance America charged a usurious rate of interest in violation of the Arkansas Constitution and engaged in deceptive trade practices in violation of the DTPA. McGinnis testified in her deposition that she wanted to pursue the lawsuit because she believed Advance America charged usurious interest rates in violation of the Arkansas Constitution and that she believed Advance America should be held accountable for its alleged wrongdoing. The alleged injury suffered — being charged interest at a usurious rate — is the same for McGinnis and all class l1Rmembers. Even assuming McGinnis suffered no monetary damages, she is not precluded from representing the class, as she allegedly suffered the same injury.
Conflict of Interest — Garrett Litigation
Advance America next asserts that McGinnis has a conflict of interest with the class because she was not a member of the Garrett settlement class and cannot enforce the Garrett settlement agreement. On October 12, 1999, Phyllis Garrett filed an action in the Clark County Circuit Court, alleging that the check-cashing transactions between Advance America and its customers were contracts that bore interest in excess of the maximum lawful rate set forth in article 19, section 13 of the Arkansas Constitution. As part of a settlement entered into with Garrett, Advance America agreed that, on or before May 15, 2001, Advance America would cease conducting check-cashing transac-. tions in Arkansas. The complaint in the instant case requests “an Order for appropriate relief and to enforce the terms of the Settlement Agreement in [Garrett v. Advance America ], Clark County Circuit Court Case No. CIV-99-152.” Advance America states that McGinnis was neither a member of the Garrett class nor a party to the Garrett settlement and never received any notification about the Garrett litigation. Advance America also states that, prior to her November 6, 2007 deposition, McGinnis had no understanding of the Garrett settlement agreement and that she was not even aware of its existence. Accordingly, Advance America asserts that McGinnis’s testimony demonstrates a conflict of interest with those members of the putative class who were members of the Garrett class and might otherwise arguably be able to enforce |19the settlement agreement in that case, if it has been violated.
McGinnis asserts that Advance America’s arguments about the Garrett settlement have nothing to do with McGinnis’s efforts to seek monetary relief for usury and DTPA violations in the present case. We agree. While the complaint requested an order enforcing the terms of the settlement agreement, the class definition in the instant case does not involve any monetary damages resulting from a violation of the Garrett settlement. The class in this case is defined as follows:
All persons, other than the Defendants and their owners and agents, who have engaged in check cashing or deferred presentment transactions, pursuant to the Arkansas Check Cashers Act, with the Defendants in Arkansas since February 27, 2002, up through and including the date of the entry of judgment in this case.
Further, even assuming that the class members in this case might be able to enforce the Gamtt settlement as a part of this case, McGinnis would not be precluded from representing the class, as the usury claims against the payday lender are the same in the Garrett litigation and in the instant case. Both suits involved allegations that the payday lender had charged a usurious rate of interest in violation of the Arkansas Constitution. In FirstPlus Home Loan Owner 1997-1 v. Bryant, 372 Ark. 466, 277 S.W.3d 576 (2008), we rejected an adequacy challenge based on the fact that some of the class representatives sought to raise claims against lenders who were strangers to the plaintiffs’ individual transactions. We noted that the claims— usury and fraud — were the same for all members of the class. Id. Likewise, in the instant case, all of the members of the class have usury claims against 12)>Advance America. Even though McGinnis was not involved in the GaiTett litigation, we cannot say that she is precluded from representing the Garrett claimants, should the terms of the Garrett litigation come into play in the instant case.
Conflict of Interest — Claims Against Advance America/Arkansas and Centers
Finally, Advance America asserts that McGinnis has a conflict of interest with the class, in that she has no basis to bring a claim against Advance America/Arkansas and Centers. Advance America states that McGinnis never entered into customer agreements with either Advance America/Arkansas or Centers and that the customer agreements at issue in this case were between Servicing and the class members. Advance America states that McGinnis admits that she does not remember entering into any customer agreements with Advance America/Arkansas or Centers; according to Advance America, that is because Advance America/Arkansas stopped doing business in Arkansas in 2001, six years prior to the beginning of the class period, and Centers has never done business in Arkansas. In sum, Advance America contends that, because McGinnis has no claims against Advance America/Arkansas or Centers, she cannot serve as class representative.
McGinnis responds that the class contends that each of the entities has done business in the state and that the parent company is liable to the class for the damages of any of its subsidiaries pursuant to the DTPA. McGinnis contends that these issues are arguments about the merits of the case and have nothing to do with whether she is adequate to serve as class representative. We agree. Again, neither the circuit court nor this court shall delve 12iinto the merits of the underlying claims when deciding whether the Rule 23 requirements have been met. See, e.g., Teris, LLC v. Chandler, 375 Ark. 70, 289 S.W.3d 63 (2008). To resolve the issue regarding which entities are liable would force the circuit court and this court to delve into the merits of the underlying claims. That is not appropriate at this stage of the proceeding. Thus, we find no merit in Advance America’s claim that McGinnis has no basis to bring a claim against Advance America/Arkansas and Centers. We hold that the second element of the adequacy requirement has been sat isfied. Further, based on the foregoing, we hold that the circuit court did not abuse its discretion in finding that McGinnis is an adequate representative for the class.
Affirmed. | [
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RAYMOND R. ABRAMSON, Judge.
I, Appellant John Crow’s parental rights in his daughter, E.M., born July 7, 2009, were terminated by the Perry County Circuit Court on October 6, 2011. On appeal, Crow argues that the trial court failed to consider his recent progress when it terminated his parental rights. We affirm.
E.M. was taken into emergency custody by the Department of Human Services (DHS) on May 17, 2010, after numerous reports had been made regarding her mother, Lacy Morehead. The most recent allegations included Morehead using drugs, having unstable and unsafe living conditions, and hitting ten-month-old E.M. in the head for “pooping” in her diapers. An ex parte order for emergency custody was entered on May 20, 2010, with appellant listed as E.M.’s putative father. A hearing took place on May 25, 2010, and a 12probable-cause order was entered on June 18, 2010. The court stated that appellant would not be granted visitation until he produced an order of paternity, at which time he would be allowed the same visitation as Morehead — one hour of supervised visitation a week at the DHS office.
Following a hearing, an order was entered on July 22, 2010, adjudicating E.M. dependent-neglected based on “general parental unfitness, the transient lifestyle and frequent moves of the mother and child, the mother’s use of prescription drugs not prescribed to her, and general instability of the mother.” The court found that appellant was E.M.’s biological father based on DNA test results and ordered DHS to offer him all services previously ordered with regard to Morehead, including random drug screens. The court also ordered that appellant have a drug-and-alcohol assessment if any screen was positive, with any recommendations to be followed; attend individual counseling and have a psychological evaluation, with recommendations to be followed; attend parenting classes; maintain stable housing, income, and employment; and notify DHS of any change in address or telephone number. The goal of the case was set as reunification with the mother.
After a hearing in September, a review order was entered on October 26, 2010. Appellant’s parenting certificate, a drug- and-alcohol assessment, and a packet of drug screens were offered into evidence. The court found that both parents were “making efforts to comply with the case plan and court orders.” The court went on to express “doubts” about whether the conditions that caused removal were remedied. The concerns focused on More-head, but the court also stated, “The Court has issues with Mr. Crow, then later his lasister Ms. Spaul, each having a romantic relationship with the mother in this case. This causes the Court grave concerns about boundary issues within these families and whether any of them are emotionally appropriate to parent this child. The Court believes this child is at substantial risk of emotional harm.” Finally, as pertinent to this appeal, the court ordered DHS to initiate a home study on the home in which appellant was then residing.
Another review hearing was held on December 10, 2010. The resulting order reflects that appellant’s drug-screen results and psychological evaluation were introduced into evidence. The court found that appellant was making efforts to comply with the case plan and court orders, and again ordered DHS to complete the home study of appellant’s current residence.
After a hearing in March 2011, the court entered a review/permanency-planning order on April 6, 2011. The court ordered that an attorney would be appointed to represent appellant. While the court expressed serious doubts about the mother’s progress and parenting, the goal of the case remained reunification, this time “with the parties also working toward pursuing placement with [appellant] John Crow.” The court noted that appellant seemed to be the better prospect for reunification, but his home study was not favorable because of a pond located immediately next to the home and other safety concerns. Appellant had employment and transportation.
On April 26, 2011, DHS filed a motion to suspend visitation for both parents due to drug use. An affidavit showed that appellant tested positive for opiates, “benzo,” and THC on April 8, 2011; for THC on April 15; and again for THC on April 20. Appellant did not 14have a prescription for the medications and stated that he last smoked marijuana in March. The court ordered that both parents would have visitation supervised at DHS, and if either appeared intoxicated, that visitation would immediately be suspended.
A review/permanency-planning hearing was held on June 17, 2011. The evidence offered included a discharge summary for appellant from Freedom House, a substance-abuse treatment center in Russell-ville, and several drug screens. The drug-screen exhibit listed numerous positive drug screens, with the most recent on June 3, 2011. The discharge summary showed that appellant had been discharged from drug treatment as “incomplete” after he chose to leave treatment rather than transfer to residential treatment. In the resulting order, the court changed the goal of the case to adoption.
On August 9, 2011, DHS filed a petition for termination of parental rights. In the petition, DHS alleged that, at the permanency-planning hearing in June,
Mr. Crow was living with his sister, who has an open protective service case out of Conway County. He had no job or income. He signed into inpatient treatment at Freedom House, but left before completing the program.
The child has been out of the home and in DHS’[s] custody more than 12 months. The mother nor father has not remediated that [sic] conditions that caused removal. The mother and father continue to lack ... stable housing, employment, or income. In addition, other factors have arisen that prevent the safe return of the juvenile.... The parents have demonstrated an unwilling[ness] to remedy their drug problems which prevent the safe return of the juvenile to either of their custody. The parents have been offered reunification services for more than one year and continuing to offer reunification services would not result in reunification.
The termination hearing was held on September 16, 2011. Dr. George DeRoeck, a psychologist, testified that he performed evaluations of both parents. In his October 2010 psychological evaluation, Dr. DeRoeck diagnosed appellant with a personality disorder and | ^considered alternative placement for E.M. Dr. DeRoeck noted a lack of capability in terms of appellant’s overall cognitive processing, “characterological” features, and possible other mental issues. He testified that he was also concerned about the history of substance abuse and the possibility of a substance-abuse-induced persisting mood or cognitive disorder.
Margaret Linker, a counselor-in-training at Freedom House, testified regarding appellant. According to Linker, appellant had successfully completed the inpatient program in early 2007, after being court-ordered to the program. Linker was appellant’s primary counselor when he entered the outpatient program on November 8, 2010. At first, appellant did very well in the program — participating in groups, making his appointments, and passing random drug tests. Beginning' in February, appellant lost his focus and started missing appointments and making excuses. Linker stated that in the very beginning she recommended inpatient treatment because of the distance (DHS was providing transportation) and the fact that appellant was not working; however, appellant wanted to stay in the outpatient program. After having several unexcused absences for group and one for individual therapy in February, appellant tested positive for THC on March 17, 2011. Appellant was placed on a “zero tolerance” contract at that time. After learning from appellant’s DHS caseworker that he tested positive for THC, Xanax, hydrocodone, and hydromorphone on April 8, Linker discharged appellant from the treatment program. She recommended that he enter residential treatment, but he stated that he could not do that. He later entered the residential treatment program on May 12, but he had trouble following the rules and left the program on May 25.
E.M.’s foster mother, Sandra Burbank, testified that E.M. had been living with her and |fiher family since May 18, 2010. There were initially some concerns about E.M.’s small size, but she had “come up on the growth scale.” Burbank described E.M. as a “normal, wonderful little two-year old.”
DHS caseworker Shiloh Marlar testified that she had been assigned to the case since May 13, 2011. She stated that appellant had obtained a job at Sonic two weeks before the termination hearing, was living with his sister, and did not have transportation. Appellant did not complete his drug rehabilitation; his drug screens had been consistently negative since July 26, 2011. Fourteen months into the case, appellant was allowed only one hour a week of supervised visitation. Marlar testified that DHS recommended termination of parental rights.
The DCFS supervisor for Perry County, Casey Myers, testified that she had been involved in the case from the beginning. She stated that appellant had been avidly seeking employment and had a few short-term jobs. During the case, he had lived with one sister, then another sister, a cousin, and his mother. He informed Myers recently that he was thinking of moving out of his sister’s home into his girlfriend’s home. Myers testified that appellant consistently attended visitation and had a bond with E.M. Nonetheless, she recommended termination based on the lack of stability in appellant’s life. Even if appellant did have stable employment, Myers stated that she would still have concerns about him raising E.M. because she feared E.M. would be exposed to her mother.
Rebecca Kincannon, an adoption specialist for Perry County, testified that she had reviewed E.M.’s case “a little.” She believed E.M. to be adoptable based on her age and race because most applicants were interested in adopting Caucasian children under age five.
17After hearing the arguments of counsel, the court went through the case history in some detail and ruled from the bench. The court found that it was in the child’s best interest to terminate parental rights and that the parents had failed to achieve minimal competency within the sixteen months that the case had been active. An order terminating parental rights was entered on October 6, 2011. Appellant filed a notice of appeal on October 24, 2011, and this appeal- followed.
The standard of review in termination-of-parental-rights cases has been set forth as follows:
We have held that when the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. The facts warranting termination of parental rights must be proven by clear and convincing evidence. In reviewing the trial court’s evaluation of the evidence, we will not reverse unless the court’s finding of clear and convincing evidence is clearly erroneous. Clear and convincing evidence is that degree of proof which will produce in the fact finder a firm conviction regarding the allegation sought to be established. In resolving the clearly erroneous question, we must give due regard to the opportunity of the [trial court] to judge the credibility of witnesses. Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge’s personal observations.
Bearden v. Ark. Dep’t of Human Servs., 344 Ark. 317, 328, 42 S.W.3d 397, 403-04 (2001) (quoting Ullom v. Ark. Dep’t of Human Servs., 340 Ark. 615, 621, 12 S.W.3d 204, 208 (2000)) (citations omitted).
Appellant cites Arkansas Code Annotated section 9-27-341(a)(4)(B) (Repl. 2009), which provides, “The court shall rely upon the record of the parent’s compliance in the entire dependency-neglect case and evidence presented at the termination hearing in making its Indecision whether it is in the juvenile’s best interest to terminate parental rights.” He argues that the entire record here demonstrates that he had been “working diligently throughout the case to overcome his drug addiction, find a job and maintain a close and meaningful relationship with his daughter.” He contends that the court committed reversible error by failing to consider his recent progress and weigh it in relation to all of the other evidence of improvement. He cites Prows v. Arkansas Department of Health and Human Services, 102 Ark.App. 205, 283 S.W.3d 637 (2008), but that case is distinguishable. In Prows, the trial court erred in its interpretation of the termination statute, writing that “[t]he fact that Mother has had some recent stability cannot play a role according to A.C.A. 9-27-341(b)(3)(B)(vii),” when in fact there was no such evidentiary bar contained in the statute. Prows, 102 Ark. App. at 208, 283 S.W.3d at 639. Here, the trial court did consider appellant’s (alleged) recent progress but found that it was not sufficient.
In this case, appellant had made some progress and partially complied with the case plan, but he failed to complete drug rehabilitation or achieve sufficient stability to parent E.M. Appellant tested positive for drugs over one year into the case and after completing a drug rehabilitation program in 2007. He failed to complete the drug treatment program he entered during the case. Further, although he had made laudable efforts at employment, his employment was recent, and he was still not in a position to care for E.M. at the time of the termination hearing. Even completion of a case plan is not determinative; what matters is |9whether completion of the case plan achieved the intended result of making the parent capable of caring for his child. See Wright v. Ark. Dep’t of Human Servs., 83 Ark.App. 1, 7, 115 S.W.3d 332, 335 (2003).
Here, the court considered all the evidence and found that appellant had been given a reasonable opportunity to achieve the required goals and there were no compelling reasons to give him more time to work on reunification. The court noted E.M.’s need for permanency and found that it was in her best interest to terminate appellant’s parental rights. On this record, we cannot say that this finding was clearly erroneous.
Affirmed.
PITTMAN and BROWN, JJ., agree.
. The mother's parental rights were also terminated, but she is not a party to this appeal.
. Appellant contends that he tested positive for drugs only once. Records indicate, however, that he had positive tests multiple times and tested positive as late as June 3, 2011. | [
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PER CURIAM.
Upon the initiation of his petition, the recommendation of the Supreme Court Committee on Professional Conduct, and in lieu of further disciplinary proceedings and disbarment, we hereby accept the sworn petition and voluntary surrender of the law license of John David Widener of Little Rock, Arkansas, formerly of Hot Springs and Arkadelphia, Arkansas, to practice law in the State of Arkansas. Mr. Widener’s name shall be removed from the registry of licensed attorneys, and he is barred and enjoined from engaging in the practice of law in this state.
It is so ordered. | [
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Humphreys, J.
Appellant was indicted for the crime of murder in the first degree for killing Will Goff, and, upon a trial of the charge, was convicted of manslaughter and adjudged to serve a term of five years in the State Penitentiary as a punishment therefor, from which judgment an appeal has been duly prosecuted to this court.
The assignments of error consist in the admission of certain testimony, the giving of instruction number 3 9 by the court, and the refusal to give instruction number 16 requested by appellant.
• The evidence introduced by the State showed that, on November 5, 19'26, three officers, Gene Booker, Clarence Baker and Will Goff, left Hope about dusk in a car to search the “Smiling Service Station” for whiskey. The station was owned by appellant, and was situated about one mile from Hope, on the Bankhead .Highway. Booker had filed an affidavit before W. G. Bright, a justice of the peace, 'that he suspected intoxicating liquor was concealed in appellant’s house or premises, and a warrant directed the officers to search appellant’s house. The justice of the peace had failed to sign the warrant. The officers stopped before reaching appellant’s premises, consisting of a filling station, several tourist houses, and a main residence, a part of which was used for a store. They concealed themselves in the woods near the station, and observed a Ford touring car drive up to the side of appellant’s place and stop, and appellant go out from his filling station to the car, and, after a few minutes, two men in the car get out and unload some sacks, which they took to the back yard, where there were two woodpiles. They saw them put one sack on one woodpile, one on the top of the other one, and one between the two. They also saw them go into the filling station and, after a short time, come out and stop in front, and, after meeting appellant, go back to the car. They then saw a Ford roadster come up and appellant get something out of the sacks and take to the ear. They then saw a Ford coupe drive up and appellant again get something out of the sacks and take it to the car. The officers then approached the premises, Baker entering the back yard and Goff and Booker entering the station from the front. Appellant was informed by Goff and Booker that they were there to search his premises, and produced the warrant. Appellant objected to the search, because it did not purport to charge those to whom it was directed to search for whiskey which might he concealed there for purposes of sale or for any unlawful purposes, and because the warrant was not signed. Appellant then went into the room right north of him, and came out and put his hand in 'his hip pocket and then pulled his hand out just as he came out of the door from behind the counter. The two officers, in company with appellant, went into the back yard, where they met Baker, and searched the premises, and found seventy-two eight-ounce bottles of whiskey in sacks at the wood piles. After they carried the whiskey to the car and were ready to go, Goff suggested to appellant that they go to the garage and make a search. Goff went to the garage with appellant, but found nothing. As they were returning, appellant a few steps in front, Goff told him to wait a minute until he searched him, whereupon appellant jumped and wheeled and threw his hand to his hip pocket, and told Goff that he should not search him. Goff then pulled his gun and cocked it, and had his left arm extended toward appellant, who was backing away from him. Appellant pulled his hand out of his hip pocket, and as it came out it flashed right in Goff’s face, and, as Goff started to fall, the gun in his hand went off and fired toward the ground. As Goff fell, appellant fired again. Baker then pulled his gun and began shooting. Goff made no motion to shoot appellant, and never had his gam up from his hip pocket to a shooting position. Goff’s pistol was fired only the one time. A fusillade followed between appellant and the other officers, resulting in the infliction of several wounds on appellant. Appellant was arrested in a short time after killing Goff, and incarcerated, where his wounds were later dressed. After being placed in jail, appellant said that if he had had a good gun he would have killed all of them.
Bobert Evans testified that, about a year before the killing, he raided appellant’s place of business, and that, after the raid, appellant asked him where he got the information which caused him to raid the place, and when he told him that he acquired it from Will Goff, appellant said, “Well, I will just tell you, it is none of Will Goff’s damn business what I do out there.” The packages of whiskey which were found and seized were exhibited to the jury.
Appellant testified, on direct examination, that he had been appointed deputy sheriff for the purpose of protecting his own property and to assist officers in running down car thieves. Several cars had been stolen, and one of them had been left near appellant’s place of business, before he received Ms commission as deputy sheriff. A part of the time and up until about three weeks before the killing’ appellant had rented Ms place of business to a man by the name of Bush, who had complete control of same during the rental period. The prosecuting attorney was permitted to ask appellant, on cross-examination, if the very man who stole the oars, and was then in the Federal pen in Louisiana, was not his lessee and in charge of his station there, and asked him if that was not the man that got the Buick cars belonging to Dave Finley, and a Chevrolet car.
Appellant first insists that the court committed reversible error in admitting the affidavit and search warrant in evidence, because they were defective. It is unnecessary to discuss the sufficiency of the affidavit and warrant; as bffih were admissible in evidence to explain the presence of the officers at the filling station and the circumstances leading up to the killing.
Appellant next insists that the court committed reversible error in permitting the packages of whiskey to be exhibited to the jury. The killing grew out of the search of appellant’s premises for whiskey, and the discovery and seizure were circumstances tending to show a motive for killing and who was probably the aggressor. Weldon v. State, 168 Ark. 534, 270 S. W. 968.
It is next insisted that the court erred in permitting the prosecuting' attorney to ask appellant, on cross- examination, if the very man who stole the ears and was then in the Federal pen in Louisiana was not his lessee and in charge of his station there, and in asking him if that was not the man that got the Buick cars belonging- to Dave Finley, and a Chevrolet car. The cross-question was based upon the direct examination, and so invited error, if error at all.
It is next insisted that the court committed reversible error in permitting- Robert Evans, a witness for the State, to testify that, about a year previous to the killing, he and other officers had made a raid upon appellant’s premises, and that, shortly after the raid, appellant came to him and asked him who furnished the information leading up to the raid, and that he told him Will Q-off had, whereupon he said that appellant told him that it was none of Will G-off’s damn business what he did out there. We think this testimony admissible as tending to show appellant’s feeling toward the deceased and the motive for the killing.
It is next insisted that the court committed reversible error in giving- instruction number 19, which is as follows:
“The law of self-defense does not imply the right of attack. If you believe from the evidence in this case that the defendant, Oscar Robison, while the deceased, Will Gf-off, together with other officers present, were engaged in searching his premises for whiskey under a search warrant, armed himself with a deadly weapon, and sought the deceased with the felonious intent to kill him, or sought or brought on, or voluntarily entered into, the difficulty with the deceased with the felonious intent to kill him, and did not abandon or attempt to abandon the difficulty before the mortal- shot was fired, then you are instructed that the defendant can not invoke the law of self-defense, no matter ,how imminent the peril in which he found himself.”
The main objection to the instruction is that the evidence failed to show that Robison armed himself for the purpose of bringing on a difficulty with the deceased,'or that Robison voluntarily> entered into the-difficulty for the purpose of killing him, or for any other 'purpose. In other words, appellant contends that the instruction is abstract. The evidence tended to show that, before going into the back yard with the two officers who served the search warrant, appellant entered a side room, and, as he was coming out, placed something in his hip pocket, from which he later drew a pistol and killed Goff. The testimony of the State’s witnesses also showed that appellant refused to be searched, and drew his pistol -and unnecessarily fired upon Goff. We think the evidence detailed in the opinion as coming from the State’s witnesses was sufficient to warrant the giving of instruction number 19.
It is appellant’s next and last contention that the court committed reversible error- in refusing to give instruction mjmber 16 requested by him, which is as follows:
“The jury is instructed that, in passing upon the question of whether the defendant, at the time of firing the shot that killed the deceased, acted in self-defense, as defined by other instructions given by the court, it is your duty to place yourselves as nearly as possible in the position of the defendant at the time of the shooting, taking- into consideration all the facts and circumstances that then and there surrounded the defendant, taking into consideration the excitement and confusion surrounding the situation, and the defendant should not be ■held to the same deliberate care in ascertaining the danger and the force necessary to repel it as would be used by a person in afterwards viewing the situation from a place of safety, uninfluenced by excitement or danger. ”
This instruction is fully covered by instructions numbers 6 and 11 requested by appellant. Those instructions are as follows:
“You are instructed that, to justify a killing in self-defense, it is not essential that the facts and circumstances should make it appear to the jury to have been necessary; it is sufficient if the defendant honestly believed, without fault or carelessness on his part, that the danger was so urgent and pressing that the killing was necessary, either to save his own life or to prevent great bodily injury to him.
“You are instructed that, when a man is threatened with loss of life or great bodily injury, he is compelled to act upon appearances, and to determine from the circumstances surrounding him at the time as to the course he shall pursue to protect himself. In such cases appar-. ent danger is as effectual for his justification as real danger is, and, when he is brought to trial for homicide, committed under such circumstances, the question for the jury is not ‘Was the danger real?’ or ‘Did the necessity for the killing in order to avert it.actually exist?’ but ‘Were the appearances such as to reasonably impress the defendant honestly with the belief, at the time, that the danger and necessity did exist? Did they so impress him, and did he act under their influence?’ The jury is to judge of the reasonableness and honesty of his conduct from all of the circumstances surrounding him at the time, from his standpoint, and not from theirs.”
No error appearing, the judgment is affirmed. | [
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Kirby, J.
This is a proceeding on the part.of the Union Special School District No. 19 to condemn four acres of land of appellant for an additional site and grounds for conduct of its school, at the time located on an qcre and a quarter of land, which was inadequate for the purpose.
The court required $250 deposited in its registry for the payment of damages to be assessed. Judgment was rendered in favor of the owners of the land, fixing compensation at $400, from which, this appeal is prosecuted.
Many witnesses testified, and there was a wide range of opinions as to the value of the land taken, varying from $50 to $400 an acre.
No proper exceptions were saved and carried into the motion for a new trial, although objection was made to the introduction of some and the exclusion of other testimony.
Appellants insist that the court erred in its instructions to the jury, seeming to complain of that paragraph of the instructions telling the jury “the amount of money that the school board ought to pay would be the fair cash maiket value of the land at the time of the taking;” * * * “the market value is what the land would be reasonably worth on the market for a cash price, allowing a reasonable time within which to effect a sale.”
The Constitution provides that private property shall not be taken for public use “without just compensation therefor,” (art. '2, § 22, Constitution) nor “appropriated to the use of any corporation until full compensation therefor shall be first made to the owner, in money, or first secured to him by a deposit of money.” Art. 12, § 9, Constitution.
The law provides the procedure for the assessment of damages or fixing the compensation for the land taken, and .just compensation is held, by a long line of our decisions, to be the actual market value of the land at the time of the institution of the condemnation proceedings, and, since the. compensation was to be paid in money, no error was committed in the court’s telling the jury that the amount of money the school board ought to pay would be the fair cash market value at the time of the taking, stating it to be what the land would be reasonably worth on the market for a cash price, allowing reasonable time within which to effect the sale.
The court further instructed the jury, giving the rule announced in Ft. Smith & Van Buren Dist. v. Scott, 103 Ark. 405, 147 S. W. 440, as follows:
“The measure of the owner’s compensation for the land condemned is the market value thereof at the time of the taking, for all purposes, comprehending its availability for any use to which it is plainly adapted, as well as the most valuable purpose for which it can be used and will bring most in the market. ”
It was the province of the jury to determine the reasonable market value of the land, based on the statements of the witnesses testifying thereto, and, although they greatly discounted the opinions of witnesses that appeared unreasonable and extravagant, they fixed the amount of compensation under instructions properly declaring the law, and the verdict cannot be said to be other than just compensation for, or the fair market value of, the land taken.
We find no error in the record, and the judgment >is affirmed. | [
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‘HhMPSR,ETS-'T.-1
rhih'stiit'whs'bhoiight'p the'‘chancery -coñrt • of 'Conway; Ccitoity b^, appellee ,agaihs!lrS.,'!Fi Stobáti^’h/N; p.^Stqbahgk'iahd'hís rwifb‘:]kí 'J:¡r Sirobéíiigii; Fí B. C'dllins Tñvébtíhént;'Company !ahd/’T:'f]Vl.T‘Milléx^ Üpon.notés aggregát'iíi^ $2,73-8, 'si-gme.d^by'^.'Ñ.'Stó'b^ñgli áñd F. O. jStóban'gihj andbfo^fqrdcló'se aVimbittghgfe ceítain' redi' estate' in shid'-cotixit^' éxSÉhíe’íf'-by^F.'. 0. iStóbángh andhM.1J'.' '.Stobáugh t^f ’ seohre Üie 'last^foNr ndtesNa^fegating-thd'gtiin'bf $2“53Í7"!
It was alleged that prior mortgages had been given upon a part of said land to F. B. Collins Investment Company and T. M. Miller, but that the mortgage to F. B. Collins Investment Company was usurious and void, and that the mortgage given to T. M. Miller was without consideration, and void. The complaint alleged a mis-description of certain of the lands in the mortgage, and sought reformation of the mortgage so as to correctly describe the lands intended to be conveyed.
No answer was filed on behalf of B. F. Stobaugh. who had left the country.
F. 0. Stobaugh and his wife, M. J. Stobaugh, denied every material allegation in the complaint, and, by way of affirmative defense, alleged:
“That no part of the indebtedness alleged to be due by plaintiff for which the notes were given is an indebtedness due this plaintiff bj^ these defendants, but that whatever indebtedness is due plaintiff on notes sued on herein was created and is the indebtedness of the defendant, B. F. Stobaugh; that defendant, B. F. Stobaugh, is an adult person, a son of these defendants, F. 0. Stobaugh and M. J. Stobaugh; that, during the year 1923, the defendant, B. F. Stobaugh, was living in Faulkner County, Arkansas; that he had various and sundry dealings with the plaintiff, A. J. Brittain, during said year, the exact amount and the kind these defendants are unable to set out, but a part of same was created by plaintiff selling' to said defendant, B. F. Stobaugh, a lot of personal property, including mules, wagons and plow tools, and also by selling to defendant, B. F. Stobaugh, a tract of land in Faulkner County, Arkansas, the exact amount and the price to be paid by defendant, B. F. Stobaugh, to plaintiff these defendants are unable to set out, but -whatever indebtedness due by defendant, B. F. Stobaugh, to plaintiff for said personal property and lands was included in the notes purported to be signed by these defendants to plaintiff, A. J. Brittain, and for which the mortgage sought to be foreclosed by plaintiff was given to secure; that defendant, B. F. Stobaugh, on or about August, 1924, disappeared from this county, and, so far as these defendants are informed, he has left the State of Arkansas; that these defendants do not know the whereabouts of defendant, B. F. Stobaugh, and they are unable to locate him; that, after the said B. F. Stobaugh suddenly left the State of Arkansas, which was before any of said notes were due, the plaintiff, A. J. Brittain, took possession of all the personal property and the lands sold by him to said B. F. Stobaugh, and has unlawfully, surreptitiously and illegally disposed of same without process of law, which action is a fraud on the rights of these defendants. That the proceeds of six bales of cotton of defendant, B. F. Stobaugh, were received by plaintiff, for which credit has not been given, and, about December' 1, 1924, R. E. Hill, a son-in-law of the defendant, paid plaintiff $300, for which credit has never been given. Wherefore defendants pray that plaintiff, A. J. Brittain, be required to produce to this court all his books, ledgers and accounts pertaining to the dealings with defendant, B. F. Stobaugh, and he be required to give an account of all personal property taken by him and of the real estate now in his possession which was conveyed by him to said B. F. Stobaugh, to the end that these defendants and this court might know the exact amount due, if any, by these defendants on notes for which the mortgage sought to be foreclosed secured, and that, upon a failure to produce said accounts and books showing the business transactions between him and B. F. Stobaugh, plaintiff’s complaint be dismissed, and for all other proper and equitable relief.”
Appellee filed a reply to the answer of appellant, making a general denial of the allegations of the answer, and stating that he was ready and willing to surrender all books, papers and notes he had for the inspection of defendants and court.
During the pendency of the suit F. 0. Stobaugh died, and the cause was revived in the name of R. E. Hill, administrator of his estate. The cause was submitted to the court upon the pleadings and testimony, resulting in a judgment and decree of foreclosure for the full amount óíjfii’e-iití'féá á|íáliÍ!tbi,0Wtí'M,GÍMMI,’fr'b¿x,^'Iiicli4iíifá[)l[iüiü iiás ^beirbTúiy'p'i’o^bútilé^ td!’tlii;s b'b.ürt:'-’'1 '* Uii
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Hart, C. J.
Guy Railey prosecutes this appeal to reverse a judgment of conviction against him for the statutory offense of contributory delinquency.
The first assignment of error is that the witnesses for the State are accomplices, and that there is no corroborating testimony. The defendant was indicted under § 5784 of Crawford & Moses’ Digest, and the statute makes the offense a misdemeanor. Under § 3181 of Crawford & Moses’ Digest a conviction may be had upon the testimony of an accomplice. Hence this assignment of error is not well taken.
A careful consideration of the testimoney leads us to the conclusion that the defendant is a man of good character and was not likely to have committed the crime with which he was charged. It seems to us that a decided preponderance of the evidence shows that he was not guilty. . Under our rules of practice, however, we cannot disturb the verdict of a jury if there is any legal evidence of substantial character to support it. The testimony of the witnesses for the State warranted the jury in finding that the defendant was guilty of conduct towards the children which constituted the statutory crime, as will appear from our construction of the statute shown by the opinion on the former appeal, where the judgment was reversed on account of erroneous remarks of the trial court. Railey v. State, 170 Ark. 979, 282 S. W. 5.
The judgment will be affirmed. | [
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Mehaffy, J.
The appellant, who was • plaintiff below, filed suit in the Independence Chancery Court, alleging that he had theretofore obtained a judgment against T. F. Leonard and Virgie Leonard -in the1 sum of $5,000, which remained unsatisfied, and an execution had been returned nulla bona. He alleged that,.a few days before the judgment was obtained, said T. F. Leonard and Virgie Leonard had fraudulently conveyed to the appellants, W. A. and Leona Harmon, who were defendants below, certain described land. That, in furtherance of said fraudulent conveyance, the said Virgie Leonard permitted T. F. Leonard to take a conveyance of said land from W. L. Calaway, although she was the owner of the indebtedness against said land given by said Calaway, who purchased it, and that no consideraion-passed between her and her 'husband at that time. That the defendants knew about these thingsthat no cash consideration was paid by Iiarmon and wife, but they executed a note for $9,000 for the property, which was done for the purpose of defrauding and cheating plaintiff and preventing him from collecting his judgment.
Plaintiff alleges that, on the same day of the above conveyance to W. A. Harmon and wife, the said T. F. Leonard and Yirgie Leonard transferred and conveyed to the said defendants, W. C. Eobertson and Etta Eobert-son, his wife, certain other property, describing it, and that no cash consideration was paid, but a note executed for $4,500, and that this was done for the fraudulent purpose of assisting T. F'. Leonard and Yirgie Leonard to place the property beyond the reach of execution on the plaintiff’s judgment. He further alleged that T. F. Leonard and Yirgie Leonard had systematically and pre-meditatedly entered into a scheme and plan for the purpose of getting rid of their property and placing it beyond the reach of their creditors, and particularly this plaintiff; alleged that they have .considerable assets, consisting of money and notes, concealed for the purpose of avoiding payment of judgment.
Answer was filed, denying the allegations of the complaint, and thereafter the plaintiff filed an additional pleading, alleging that the defendants, W. A. and Leona Harmon, were indebted to Leonard in the srim of $9,000, and that Eobertson was indebted to Leonard in the sum of $4,000, and that they had disposed of their notes.
There was a'decree by the chancery court in favor of McSpadden against the Harmons, directing them to pay into the court a sufficient sum of money to pay the judgment of McSpadden.
Thereafter the plaintiff filed a supplemental complaint, showing that the Harmons and Eobertson had sold their notes and other property to one W. C. Har-grove of Pittsburg, Texas, and plaintiff asked that Har-grove be required to appear in the court. Plaintiff alleged that the three notes executed by Harmon provided that, upon failure to pay one when due, or interest when due, all three notes became due.
The Leonards and Harmons filed joint answers, and, in the meantime, Hargrove, who claimed to have purchased the notes, brought suit in Texas against the defendants, and it appears that they had never been to Texas before, but they went down and were served with summons between trains in the suit by Hargrove., And they pleaded this suit as a bar. Hargrove was served with a copy of the pleading, but did not appear in this court. A certified copy of the judgment of the Texas District Court, showing a judgment against W. A. Harmon in favor of W. C. Hargrove in the sum of $9,645, together with a copy of the complaint of Hargrove against Harmon, was filed.
S. M. Casey testified that he was present, representing Lawrence McSpadden, and heard W. C. Hargrove testify in the bankrupt court in Texarkana, and that Leonard was also present. That Hargrove testified that he bought the notes from Leonard, August 9, 1924, being three $3,000 notes of W. A. Harmon and a $4,000 note of W. C. Robertson, two $1,000 notes of R. A. Leonard and $1,000 of Independence County scrip, making a total of $16,000, and that he was to pay Leonard $9,500, and that he paid him at that time $3,500, and the balance in six weeks.. That all the payments were in.actual cash, no written evidences of the transaction;, and'Leonard testified to substantially the same facts.
Hargrove lives at Pittsburg, Texas, about 350 miles from Batesville, and stated that he made no investigation before buying the notes; he did not know the people who gave the notes, and later cashed the scrip at par value. He also testified that he had sold the Robertson notes, but still had the Harmon notes.
Mr. Casey also testified that the notes sold to Har-grove and the scrip were worth $16,500, as they were well secured.
Harmon and Robertson both testified in the contempt case in August, 1925, that they had gone to Texas and were sued by Hargrove. Harmon testified that - he bought the property from Leonard and gave three $3,000 notes, and that his wife signed the notes, and that they did not pay any cash. He did not know that Leonard was going to sell the notes, and did not know that he had sold them until later-. That he was sued in Texas on the notes on August 1. Papers were served on him ‘as he went through Mount Pleasant, Texas. That he was only there 15 or 20 minutes; had to change cars there. That he was never in Texas before this time, and was on his way to Dallas to see his sister there, and stayed there about a week. That he had no property in Texas. He swore that he did not know he was going to be served, had no idea that he was. He made no arrangements with Leonard to go down to Texas. That he did not make any defense in. the Texas case, for the suit was for the full amount of the three notes of $3,000 each. That he did not know that Hargrove owned the notes, although he knew that they were sold and that some one in Texas owned them. Did not see anybody down there but the sheriff, who delivered the summons; did not see Har-grove.
McSpadden undertook to collect his judgment by contempt proceedings, and the court below” ordered Leonard to pay the money into court, and, upon his failure to do so, ordered him to jail, and an appeal was taken to this court, and this court held that there was no lien on Leonard’s property, and that the judgment in this case amounted to imprisonment for debt, which was in violation of the Constitution.
The Harmons, Leonards and Robertsons were relatives, and, when Harmon went down to Texas and was sued, he did not know Hargrove and Hargrove did not know him. He was only at the station where he was served 15 or 20 minutes, and there was no explanation how Hargrove knew he was to be there; he had his suit, filed, summons issued and an officer there to serve it when Harmon got off the train. Moreover, the suit was brought in Texas, where Harmon had no property; where there was no possibility of collecting, when he could have foreclosed his mortgage or lien in Independence County and sold the property to pay the debt. Leonard, Robertson and Harmon were brothers-in-law. Leonard sold his property to Harmon, his brother-in-law, received no cash, but received notes secured by the property, and then, instead of making any effort to sell the notes to persons in Arkansas, who knew about the value of the securities, took his notes, together with Independence County scrip, to Pittsburg, Texas, and sold to Hargrove for about 60 per cent, of their value, when the property was ample security fpr the face value of the notes and could have been collected without any difficulty.
The court, after the testimony, entered a decree reciting that W. C. Hargrove had been served with a certified copy of the supplemental complaint; had failed to make any response, and that he had also been served with constructive service as required by law, and that an attorney ad litem had been appointed to defend for him. That the defendants, W. A. Harmon and Leona Harmon, had -been duly served with summons, and had filed answers, and the court further found that the defendant, T. P. Leonard, converted all his property into liquid assets and took same to Texas, and made a fraudulent disposition of all his notes, accounts and county scrip, including the notes of the defendants, Harmon and. Robertson, in an amount of $16,500, selling them for a discount of over 40 per cent, when the same were well secured and worth par value, and that he was later adjudged a bankrupt, and had no property out of which plaintiff’s judgment could be made, except the notes of defendant.
The court further found that ~W. 0. Hargrove participated in the fraudulent sale of said notes and scrip and bought the property at a grossly inadequate price, under such circumstances as would not constitute him an innocent purchaser or a bona fide holder for valué. The court further found that Harmon and Robertson went to Texas and suffered themselves sued there by "W. C. Hargrove, acting in collusion with the defendants, Leonard and Har-grove, for the purpose of defeating plaintiff in the collection of his judgment. And the court also found that the sale by Leonard to Hargrove of his entire assets was fraudulent and made for the purpose of defeating plaintiff in the collection of his judgment. And the court further found that there was sufficient assets turned over to Hargrove by Leonard' to pay him $9,500, the amount he claimed to have paid for the same, and to pay plaintiff’s judgment, with interest and costs. That Hargrove has disposed of some of the property, hut still has $9,000, and the court further found that there was sufficient due from Hargrove to defendant, Harmon, over and above the judgment and costs, to pay Hargrove more than the full amount that he claimed to have paid.
In addition to what the court recited in its decree, it may be said that the proof shows that Hargrove still, according to his own testimony, owes Leonard considerably more than enough to pay appellee’s judgment, and, in fact, Hargrove has a judgment in the Texas court for something over $9,000 against Leonard, so that Leonard still- owes more than $9,000.
It is unnecessary to set out the evidence. After a careful examination of all the evidence in the case, we are of the opinion that the finding of the chancellor was sustained by a preponderance of the evidence.
Appellant argues that this court has held that inadequacy of price is not sufficient to justify the court in holding that the conveyance was fraudulent, and that is true. That would not necessarily constitute had faith, hut thé inadequacy of price, together with all the circumstances indicating fraud in this case, seem to us to justify the finding of the chancellor that the sale was fraudulent, and that Hargrove participated in the fraud.
Appellant contends that fraud must be proved, and will never he presumed, and in this he is correct. The fraud must he proved, hut we think it has not only- been proved in this case, hut the facts proved are inconsistent with any proper motive. Good faith is the basis of all dealing, and every kind of contract, every transaction for the conveyance of property, may he vitiated by fraud. Of course,' an insolvent debtor may sell his property and give good title. He can do so if the transaction is made in good faith, and even inadequacy of price does not necessarily make it fraudulent, but it has many times been held that indebtedness or insolvency at the time of a conveyance creates a prima facie presumption of fraud.
It has been said: “Gross disparity between the consideration and the actual value of the property conveyed is a badge of fraud, and this even in tha case of an execution sale. Under such circumstances it is generally held that equity will in any event subject the property conveyed to the claims of creditors to the extent that the real value exceeds the consideration, for such a conveyance is partially voluntary. If the disparity of consideration is deliberate, with intent to defraud creditors, the transaction is utterly void as to creditors, and gross disparity may, under some circumstances, of itself justify the inference that there was actual fraud, especially where the disparity is occasioned not by the absence, but by the illegality of the consideration. * * * The court will not weigh the value of the goods sold and the price received in very nice scales, but, all circumstances considered, there should be a reasonable and fair proportion between the one and the other.” 12 B. C. L. 478.
In this case Hargrove purchased the property for approximately $7,000 less than its value, when the notes were secured by property that could be sold for a sum sufficient to pay the entire debt.
It is unnecessary to review or discuss the authorities cited by the parties, since we have reached the conclusion that the chancellor’s finding that the conveyance was fraudulent is supported by a preponderance of the evidence, and we have reached the conclusion that the decree of the chancellor is correct, and it is affirmed. | [
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Hart, C. J.,
(after stating the facts). There is no hard-and-fast rule in this State as to what contracts are void as being in restraint of trade, and each case must be judged according to its own facts and circumstances. It is also well settled that a person may legally purchase the business of another for the purpose of removing competition, with an agreement on the part of the seller not to- carry on the same business in the same place for a limited period of time. Covenants of this kind operate to prevent the seller from engaging in a business which he sells, so as to protect the buyer in the enjoyment of what he has purchased and to enable the seller to get the full value of his property, including the good will of his business. In general this does not injure the public, because the business is open to all other persons, and there is little danger that it will suffer harm, if the busi- ■ ness is profitable. The agreement could in no sense prevent other persons from entering'the business, if they should see it was a profitable- one. Shapard v. Lesser, 127 Ark. 590,193 S . W. 262, and cases cited; Wakenight v. Spear & Rogers, 147 Ark. 342, 227 S. W. 419; and McSpadden v. Leonard, 159 Ark. 193, 251 S. W. 694.
The closest question in the case at bar is whether or not the $10,000 mentioned in the contract should be treated as a penalty or as liquidated damages. It is the settled law of this State that, where the damages for breach- of contract are-in- their nature uncertain and difficult of ascertainment, the amount to be paid may be stipulated for by the terms of the contract. In the early case of Williams v. Green, 14 Ark. 315, the court said that parties may stipulate the amount of damages for breach of an agreement “not to carry on a rival trade or business, within certain limits, where the .breach may consist in acts of frequent recurrence, and the damages are in some degree conjectural.” The case of Nilson v. Jonesboro, 57 Ark. 169, 20 S. W. 1093, is a leading case on the difference between liquidated damages land a penalty. In discussing the question the court said:
“The authorities, however, show that, where the intention to liquidate the damages is not obvious, the stipulated sum will be given the effect of a penalty if it exceeds the measure óf a just compensation and the actual damage sustained is capable of proof. (Citing authorities). But, where the contract is of,such a nature that the damage caused by its breach would be uncertain and difficult of proof, the sum named by the parties is generally held to be liquidated damages, if the form and language of the instrument are not unfavorable to that construction and the magnitude . of the sum does not forbid it.”
As said in Blackwood v. Liebke, 87 Ark. 545, 113 S. W. 210, “But the question is not as to the status of the parties at the time when the contract terminated, but as to the -status of the parties at the time they made the contract. It may be, as the contract works out, that it would be easy to ascertain the damages for the breach of it, or to prove that there were none. But, if the status of the parties at the time of the contest was such that it would be difficult or impossible to have anticipated the damage for a breach of it, and there was a positive element of damage, then,' under the authorities, there is no reason why that may not be anticipated and contracted for in advance.”
To the same effect see Wait v. Stanton, 104 Ark. 9, 147 S. W. 446; Welbourn v. Kee, 134 Ark. 361, 204 S. W. 220; Suter v. Mason, 147 Ark. 505, 227 S. W. 782; Foran v. Wisconsin & Arkansas Lumber Co., 156 Ark. 346, 246 S. W. 848; and McSpadden v. Leonard, 159 Ark. 193, 251 S. W. 694.
The same rule has been adopted by the Supreme Court of the United States, and the rule itself and the reasons for it are clearly stated in Wise v. United States, 249 U. S. 361, 39 S. Ct. 303, 63 L. Ed. 805. Mr. Justice Clarke, who delivered the opinion of the court, said:
‘ ‘ The result of the modern decisions was determined to be that, in such cases, courts will endeavor, by a construction of the agreement which the parties have made, to ascertain what their intention was when they inserted such a stipulation for payment of a designated sum or upon a designated basis, for a breach of a covenant of their contract, precisely as they seek for the intention of the parties in other respects. When that intention is clearly ascertainable from the writing, effect will be given to the provision, as freely as to any other, where the damages are uncertain in nature or amount, or are difficult of ascertainment, or where the amount stipulated for is not so extravagant, or disproportionate to the amount of the property loss, as to show that compensation was not the object aimed at or as to imply fraud, mistake, circumvention or oppression. There is no sound reason why persons competent and free to contract may not agree upon this subject as fully as upon any other, or why their agreement, when fairly and understandingly entered into with a view to just compensation for the anticipated loss, should not be enforced.”
We are of the opinion that, tested by this rule, the agreement of the amount of $10,000 named in the contract in the case at bar should be treated as stipulated damages and not as a penalty. It is true that, according to the evidence for the defendants, the contract in question was not executed until after the deed for the land and the gin plant had been executed and delivered, and was entirely an afterthought on the part of the purchaser, and there was no consideration for it. On the other hand, according to the testimony of the plaintiff, the contract not to enter into the gin business in competition with him was a part of the consideration for the purchase of the gin plant from the defendants. The gin was an old one, and the plant itself was not worth more than $5,000. The plaintiff valued the good will of the business at $5,000, and, for this reason, agreed to pay $10,000 for the gin plant. The contract was to last for twenty years, and breach of it, in the very nature of thing’s, might be of frequent recurrence, and damages would be to some degree conjectural. The defendants might encourage or assist some one to enter into the gin business in competition with the plaintiff for a certain year, and the actual damage suffered might be small. However, if the plaintiff should bring suit for a breach of the contract, that would end the matter, and he could not bring a second suit if the defendants should, the next year or any subsequent year, induce others to set up a rival gin in the same place. As pointed out by this court, the status of the parties must be considered as of the date when they made the contract and not when it was breached. For this reason the reasonableness of the damages stipulated must be determined by the facts and circumstances at the time the contract was entered into, and the fact that no loss has in fact resulted from the breach of the contract does not affect the plaintiff’s right to recover. As .pointed out above, in making contracts in partial restraint of trade and stipulating for damages for a breach thereof, the seller has in view the obtaining the full value of the good will of his business in making the sale, and the purchaser has in view the right to protect himself in buying the' good will by preventing the seller from entering into competition with him. It is apparent that the good will would be at least materially lessened in value if the seller was at liberty to at once establish a rival business in the same place. Other cases holding that the amount stipulated in the contract as liquidated damages for a breach thereof which may be recovered in the event of a breach of the contract, even though no actual damages are suffered as a consequence of such breach, may be found cited in a case-note to 34 A. L. B. 134. Among the cases cited is that of the United States v. Bethlehem Steel Co., 205 U. S. 105, 27 S. Ct. 450, 51 L. Ed. 731, where the court approved the rule comprehensively stated and discussed in Sun Printing & Publishing Association v. Moore, 183 U. S. 642, 22 S. Ct. 240, 46 L. Ed. 366.
These cases hold that, if the contract provides for a definite sum as the liquidated or stipulated amount to be paid upon a breach thereof, then the amount so fixed, upon by the parties may be sued for; and it is not necessary for the plaintiff to prove any actual loss by reason of the defendants’ breach of the contract. All that is necessary to entitle the plaintiff, in such a case, to recover the stipulated sum, is to show the breach of the contract' upon which the payment thereof depends. In other words, the effect of a clause for stipulated damages is to substitute the amount agreed upon as liquidated damages for the actual damages resulting from the breach of- the contract, and thereby prevent a controversy between the parties as to the amount of damages.
The damages for a breach of a contract of this kind extend over a period of twenty years, and are uncertain, and, when the surrounding circumstances are considered,together with the purpose sought to be accomplished, -the' sum of $10,000 is not so extravagantly disproportionate to the damage which might result from the defendants entering into or aiding any one. else to enter'into the girt business in the territory named in the contract in competition with the plaintiff, as to show that the parties must have intended a penalty and could not have meant liquidated damages.
It is next contended that the evidence is not' legally sufficient to show that the defendants aided and assisted Thompson in setting up a rival gin in the town of Bose Bud, Kentucky Township. The testimony'oh this point" was conflicting, but the question was submitted to the jury on proper instructions. The evidence for the plaintiff, if believed by the jury, was legally sufficient to warrant a finding that the defendants' aided and assisted Thompson in setting up a rival gin in the territory embraced in the contract. According to the evidence adduced for the plaintiff, the defendants allowed Thompson to assemble his building material on their land and to pile upon, their land the wood which he used in operating the gin. The gin plant was erected within three or four feet of Thompson’s boundary line, and that it was apparent that the land of the defendants, which was next to it, must necessarily be used in unloading cotton at the gin. One of the defendants was there at the gin twice each day for fifteen or sixteen days during the erection of the gin. The jury might have inferred that he must have known these facts. In addition, he was seen to have frequent extended conversations with Thompson at the place where the gin was being constructed during the time of its erection. After the gin was put in operation, the defendants advised various persons to have their cotton ginned with Thompson, and said that it would be ginned cleaner by Thompson than by Plant.
The jury was instructed that the burden of proof was upon the plaintiff to show that the defendants in some substantial way aided or assisted Thompson in entering the gin business in the town of Rose Bud, and that, unless it should find these facts by a preponderance of the evidence, the verdict should be for the defendants. The evidence for the plaintiff is legally sufficient to sustain a finding by the jury that the defendants aided and assisted Thompson in setting up his gin and operating it, in violation of the contract.
The court also instructed the jury that, if the contract sued on was executed after the sale of the gin plant was consummated and was no part of it, then such contract was void, and the verdict should be for the defendants, in accordance with the principles of Kimbro v. Wells, 112 Ark. 126, 165 S. W. 645.
The respective theories of the parties to this lawsuit were fully and fairly submitted to the jury under proper instructions. It is urged, however, by counsel for the defendants, as a reason for a reversal of the judgment, that certain instructions asked for by the defendants were refused by the court. We do not deem it necessary to review these instructions or to discuss them separately, for the reason that, as above stated, in the instructions given at the request of the plaintiff and of the defendants, their respective theories were fully covered, and all disputed questions of fact were fairly submitted to the jury.
It is earnestly insisted, however, that the court erred in refusing' to give instruction No. 7 at the request of the defendants. The instruction reads as follows:
“You are instructed that, if you find from the testimony that C. L. Thompson had used water from a public well that was open to the public, though situated upon the lands of the defendants, or either of them, in the construction and building of his gin, and if you further find that the same was used by and with the consent of the plaintiff and without objection from him, then this fact would not constitute a breach of the contract sued on herein, and your verdict' should be for the defendants.”
There was no error in refusing to give this instruction. This court has frequently said that the trial court is not required to single out facts and make the verdict of the jury dependent upon whether they are true or not. The jury might have found that the plaintiff did not object to Thompson using water from the well’situated in the park of the defendant and still thought that the contract had been breached in other ways, as testified to by the witnesses for the plaintiff, and that, on this account, the plaintiff was entitled to recover the damages stipulated, if there was a breach thereof.
We find no prejudicial error in the record, and the judgment will therefore be affirmed.
Kirby-, J., dissents. | [
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Wood, J.
This is an action by L. C. Harris el oil. against Sylvian Hirsch to declare and enforce a lien on certain oil and other personal property and on a leasehold interest in twenty acres of land in Ouachita County, Arkansas, which land is described in one of the complaints. The first complaint was filed March 6,1926, and the interventions were filed later. Plaintiffs and inter-veners alleged, in substance,' that they were oil field teamsters and laborers, and, at the request of the defendant, Sylvian Hirsch, they furnished teams and labor for the purpose of building an earthen storage pit on lands described in the complaint, upon which the defendant had a lease, for the purpose of building a pick-up station for 'the collection of oil. They asked that they be given a lien on seven-eighths of the oil so collected and certain personal property and the leasehold interest of the defendant. Plaintiffs filed with the complaint a statement of their accounts, duly verified,
The defendant answered, denying the allegations of ilie complaint and interventions, and alleged that he had at no time employed the plaintiffs or interveners to do any work for him on his pick-up station or earthen storage tank on the lands described in the complaint; that he had no notice that the plaintiffs and interveners had ever done 'work for him on flic land described.
The plaintiffs and interveners testified, in substance, that they worked on the pit situated on the land as described in the complaint and interventions. A colored man by the name of Curl in Arnold employed them to do the work. Hirsch never employed them. They gave the defendant, Hirsch, no notice that they were going to institute suit against Mm. They did not know when the work was done — the last of -November or the first of December — it was finished about the first of December. Each testified to the number of days’ work done by him and the amount due him, and that same had not been paid. They testified to the effect that Arnold, who employed them, claimed to have a contract with the defendant, Hirsch.
The defendant, Hirsch, testified that he never employed any of the negroes to build the ¡pit for him. Neither of them ever gave him any notice that they were claiming ¡a lien or that they were going to file suit against him. He entered into a contract with Curlin Arnold to construct an earthen storage pit for him on the land described, and agreed to pay him $400 for the work. Arnold had never finished the pit. It was on the land described in the complaint and interventions, and he supposed that the claimants had worked on the pit. Witness did not know whether Curlin Arnold had paid the claimants in suit or not. Witness paid Arnold $200, and told him that if he would finish the pit he would pay him the balance of $200.
The court found that the defendant had entered into a contract with Curlin Arnold to build a storage pit on the lands described in the complaint and interventions, for which Arnold was to be paid the sum of $400. Certain of the plaintiffs had performed work and labor with their teams, wagons and slips on the storage pit, under employment by Arnold, the contractor. The court found that the claims were not filed within ninety days and no notice was given the defendant, Hirsch, and the trial court was of the opinion that the plaintiffs had eight months in which to perfect their liens and that their actions.were instituted within eight months from the time the last work was done by them. The court thereupon rendered a decree for the several amounts claimed -by the respective plaintiffs, and declared these amounts a lien on the leasehold estate of the defendant, Sylvian Hirsch, on the lands described in the complaint, and appointed a commissioner to sell such property to satisfy the decree. From these decrees the appellant prosecutes this appeal.
Act No. 615 of the General Acts of 1923 gives to the parties designated therein, including materialmen and laborers, a lien, upon the terms and conditions therein specified. Section 3 of that act gives to “any person, corporation,- firm, association, partnership or material-man, who shall furnish such machinery, material or supplies to a contractor or subcontractor, or any person who shall perform such labor under a subcontractor with a contractor, or who, as an artisan or day laborer in the employ of such contractor or' subcontractor, shall perform any such labor, shall'have a lien upon the said land or leasehold interest therein,” etc. The act is long, and it is unnecessary to set it forth. It suffices to say it is sufficiently comprehensive to include the appellees, as materialmen and day laborers furnishing teams and tools and performing day labor. They are therefore entitled to a lien upon the leasehold estate described in the complaint, provided they have proceeded as the law requires to assert their lien.
Section 8 of the act provides: “Except as herein expressly provided, the lien hereby created shall be construed, established, preserved and enforced in like manner, and in the same time as liens of mechanics are now construed, established, preserved and enforced, provided that, where the labor performed, or material, supplies or machinery furnished was under an open, running account, the same shall be construed as a continuous contract, and the time within which the verified statement of the claim for lien shall be filed with the clerk of the circuit court shall be computed from the time upon, which the last labor was in good faith performed.”
The mechanics’ lien law (§ 6922, C. & M. Digest) is linked by § 8, supra, to the act under review as the method prescribed for the establishment and enforcement of the liens, except as in act No. 615 otherwise expressly provided. The mechanics’ lien law makes it tlie duty of every person who wishes to avail himself of the act to file, with the clerk of the circuit court of the county where the property is situated upon which lie wishes to have a lien fixed, a just and true account of the demand due or owing1 to him, after allowing all credits, and containing a description of the property to he charged with the lien, verified by affidavit. In order to preserve a lien, this account must be filed within ninety days after the last item of the materials furnished or work or labor performed. See Planters’ Cotton Oil Co. v. Galloway, 170 Ark. 712, 280 S. W. 999, and cases there cited.
The appellees did not file any claim for a lien with the clerk of the circuit court, as required by § 6922, supra, nor did they institute their action within ninety days after the last item of labor ivas performed by them. The latter step would have been sufficient to cure the failure to file their claim as required by § 6922, supra. See Pfeiffer Stone Co. v. Brogdon, 125 Ark. 426, 188 S. W. 1187.
The learned trial .judge found that the claims were not filed within the ninety days prescribed, but he was of the opinion that the appellees had eight months in which to perfect their liens under the labor lien law. Section 6862, C. & M. Digest, provides as follows: “Proceedings under this act shall be commenced within eight months after the work is done.” But the Legislature saw proper, by the act under review, under the' eighth section above quoted, to prescribe that the liens created by that act in favor of laborers on property therein described should be “established, preserved and enforced in the same time as liens of mechanics are now construed, established, preserved and enforced.” The appellee sought to enforce their liens given them under Act No. 635, and not under § 6862 of C. Sc M. Digest. These liens are creatures of statutes, and they must be perfected and enforced according to the statutes under which they are created. Doke v. Benton County Lumber Co., 114 Ark. 1, 169 S. W. 327, 52 L. R. A. (N. S.) 870.
The appellees did not make tlie contractor a party lo the action, nor did they give the appellant ten days’ notice of the action, as required by § 6917, C. &• M. Digest. The appellees therefore are neither entitled to a lien nor to a personal judgment against the appellant. See Simpson- v. Black Lumber Co., 114 Ark. 464, 172 S. W. 883.
The decrees are therefore reversed, and the causes are remanded with directions to enter a decree dismissing the complaint and interventions for want of equity. | [
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Mehaufy, J.
The appellant, Marvin Hazel, was indicted by tlie grand jury of Miller County on the 7th day of June, 1927, charged with the crime of selling-liquor. He entered a plea of not guilty, was tried by a jury, found guilty, and his punishment fixed at one year in the State Penitentiary, and he has appealed to this court to reverse said judgment.
When the case was called for trial in' the circuit court, the defendant, who is the appellant here, filed a motion for continuance on account of the absence of witnesses Jeff Sams, Calvin Massey, and Ed Garrett. In the trial, however, witnesses Jeff Sams and Ed Garrett appeared and testified. Defendant’s motion for a continuance was overruled, ¡and exceptions saved. The appellant has filed no brief.
M. M. Brackman, a witness for the State, testified that he ivas constable of Sulphur Township; that in February, 1927, he arrested Looney Walls and Bob Blades and took from them a five-gallon keg of whiskey, near Olive Branch Church; that they were coming from the direction of defendant ’s home; that Walls and Blades gave him a description of the party from whom they bought the whiskey.
Mrs. Adcock, another witness for the State, testified that she lived down about six miles from Bloomburg, Arkansas, in Miller County, about a mile from Marvin Hazel, the defendant, and remembers when Blades and Walls were arrested by Mr. Brackman, and that she saw the defendant that afternoon, in an automobile with two other men; that they were going in the direction of Sul-phur Bottom, but that she did not see them coming- back.
Mrs. G. W. Adcock, another witness for the State, testified that she knew the defendant, and remembers the time when Walls and Blades were arrested, and that she saw the defendant some time that day in a car with two other men. Tliat they were going in the direction of defendant’s home.
Looney Walls testified that he knew Brackman, constable of Sulphur Township, and that he arrested him and Blades near Olive Branch Church, and that they had five gallons of liquor in the car at the time they were arrested; that they bought it from the defendant, Mr. Hazel, and said that the defendant went with him and Blades after the whiskey in a Ford car; that.they paid him thirty dollars for the whiskey; that, after they went after the whiskey, they brought Hazel back home and put him out at his house.
Jeff Sams, a witness for the defendant, testified that he remembered the day that Blades and Walls were arrested; that on that day he went to Bloomburg; that he passed defendant’s house about ten o’clock; that he stopped and stayed there a few minutes, and went on to Bloomburg; that he went in a hack, and got there between eleven and twelve;- that he did not see Walls either at defendant’s house or on his way to or from Bloomburg, but said he did not know what Hazel or Walls were doing that afternoon.
Hd Garrett, a witness for the defendant, testified that he'went to Bloomburg with Jeff Sams, but didn’t see Marvin Hazel, and didn’t see Walls, and didn’t know whether he took him off and brought him back or not.
Jolm Massey, another witness for tlie defendant, testified that he spent most of the day at defendant’s house, and did not see the defendant when he got in the roadster automobile with two other men and went off and came back, but he would not say that he did not do so.
Looney Walls was recalled for further cross-examination, and testified that he went the main road from Bloomburg to defendant’s house; that he doesn’t know what time they left Bloomburg, but it was after lunch time.
The defendant, in his motion for a new trial, contends that the verdict of the jury was contrary to the evidence and contrary to the law. In answer to this contention it is only necessary to say that one witness testified that he bought whiskey from the defendant, and that there was no testimony introduced that contradicted this, and it was a question of fact for the jury to determine, and the testimony of this witness, if believed by the jury, would be sufficient to sustain the verdict. As to whether the verdict of the jury is contrary to law, of course, depends upon whether there was error in the court’s instructions.
Appellant’s next ground for a motion for a new trial is because he alleges that the court erred in refusing to give a peremptory instruction. He then complains in his motion for a new trial because he says the court erred in refusing to give instructions No. 7, No. 9,'No. 10, and in modifying No. 10, and because the court erred in refusing to give instruction No. 11, requested by the defendant.
Instruction No. 7 contained a statement that, if the facts and circumstances could be explained in any reasonable way consistent with defendant’s innocence, he would be entitled to an acquittal, and this statement in the instruction made it erroneous, because, no matter what the circumstances may have been, or rather the circumstances might have been, consistent with his innocence, still the jury would not be instructed to find him not guilty because of this when there was direct testimony that witnesses had bought whiskey from him. In other words, while the instruction might have been proper in a case depending entirely on circumstantial evidence, it was not proper in this case. Rogers v. State, 163 Ark. 252, 260 S. W. 23; Green v. State, 38 Ark. 304; Logi v. State, 153 Ark. 317, 240 S. W. 400.
In the last mentioned ease the court said:
“Where circumstantial evidence alone is relied on to establish the guilt of one charged with crime, such evidence must exclude every other reasonable hypothesis than that of the guilt of the accused.* * * A conviction resting upon evidence which fails to come up to the standard prescribed by law is contrary to law, and it is the duty of the court to set ¡aside the verdict. ’ ’
It must be remembered that, in the above case, it was held that circumstantial evidence alone was relied on, and, as we have said, that was not this case. In this case there was direct evidence, a witness swearing that he bought whiskey from the defendant, and the court did not err in refusing to give appellant’s instruction No. 7.
For the same reason instruction No. 9 was properly refused. It also was an instruction that mig’ht have been proper where the State relied on circumstantial evidence alone. Moreover, this instruction was covered by the court’s instruction on reasonable doubt.
Instruction No. 10 was amended by the court by striking out the words 1 ‘ amounting to a moral certainty. ’ ’
In the ease above referred to, Green v. State, the court said:
“It was putting it very strong to require the State not only to prove the guilt of the accused beyond a reasonable doubt, but to go further and prove it to the exclusion of every other hypothesis. Either would be sufficient. The court expressed the rule sufficiently strong, and, as to the law of doubts, fully instructed the jury in its charge.”
In this case the court expressed the rule sufficiently strong, and, as to the law of doubts, fully instructed the jury in its charge as to reasonable doubt. And, for that reason, instruction No. 11 was properly refused as asked, and tlie court committed no error in giving the instruction as amended.
Appellant’s next ground for a new trial is because of a statement made to the jury, but the statement contained in the motion for a new trial is not in the bill of exceptions anywhere and is not contained in the record, except in defendant’s motion for a new trial. And that is true of appellant’s contention about the qualification of juror Harris. The court did not err in overruling defendant’s motion for a continuance. Two of the witnesses, on account of whose absence the continuance was asked, were present and testified, and, according to defendant’s statement in the application for a new trial, the absent witnesses’ testimony would have been cumulative. In addition to this it may be said that the grant--ing or refusing a motion, for continuance is in the discretion of the trial court, and it does not appear that the discretion was abused.
While the appellant filed no abstract and brief, we have very carefully examined the entire record and find no reversible error. The judgment of the circuit court is therefore affirmed. | [
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Hart, C. J.,
(after stating the facts). It is the settled law of this State that one who asks to be relieved from a judgment on the ground of unavoidable casualty preventing the defendant from making a defense to the action, the party asking to be relieved from the judgment must show merit; otherwise the court would be asked to do the vain thing of setting aside a judgment when it would be its duty to enter again the same judgment upon a re-trial of the case. It is not required of the defendant to establish his case conclusively-, but he must make out a prima facie defénse, the- final determination being left to .the court,, if the judgment is set aside. McDonald Land Co. v. Shapleigh Hardware Co., 163 Ark. 524; 260 S. W. 445, and Halliday v. Fenton, 164 Ark. 11, 260 S. W. 961.
In the case at bar the defendants alleged, as a defense to the actions to recover on the insurance policies, that the plaintiffs had failed to file proof of loss within the time provided in the policies. This, if proved, Avould constitute a valid defense to a suit on the ..policies.. Queen of Arkansas Insurance Co. v. Laster, 108 Ark. 261, 156 S. W. 848, and Illinois Bankers’ Life Association v. Byasse, 169 Ark. 230, 275 S. W. 519, 41 A. L. R. 379. In the motion to vacate the judgment proof was introduced by the defendants to show that no proof of loss had been filed by the plaintiffs in either- case. No question of the waiver to file proof of loss within the time provided in the policies has been raised -in the pleadings: Hence it was not necessary for the insurance companies to prove anything concerning a waiver, because the fact of waiver was not put in issue in the cases. The insurance companies would not be required to prove something that had not been put- in issue in the cases in order that they might have the judgments vacated on the ground of unavoidable casualty. In the case of Halliday v. Fenton, 164 Ark. 11, 260 S. W. 961, it was held that a finding of the circuit court that there was unavoidable casualty, within Crawford & Moses’ Digest, § 6290, subdivision 7, authorizing the vacation of a judgment, if supported by substantial evidence, will not bé set aside upon appeal. It was further held that evidence of a misunderstanding as to a continuance, resulting in the defendant’s absence from the trial, entitled him to have the judgment vacated under this subdivision of the statute.
In the present case one of the attorneys for. the insurance companies was a witness for them. According to his testimony he lived in Little Rock, and had practiced law for fifteen years. The eases in question were brought in -the circuit court in Union County, Arkansas. The attorney for the insurance companies saw the attorney for the plaintiffs about the cases, and told him to send him an affidavit as to the facts relative to the loss and he Avould see if there could not be a settlement of one of the cases. Subsequently he filed answers for the insurance companies. The attorney for the plaintiffs told the attorney for the insurance companies that he would’ notify him when the cases/were set for trial, and the attorney for the insurance companies relied upon him to do so. He did not know that judgments had been rendered in the cases until the term at which they were tried had lapsed. The attorney for the insurance companies sent the answers to the clerk of the circuit court in which the cases' were pending by mail. He asked the clerk to acknowledge receipt of the answers and advise him when the cases would be set for trial. The clerk answered the letter and acknowledged the receipt of the answers. He also stated that it would he impossible to tell just when the cases would be set for trial, and said that civil cases were usually- set by agreement of the attorneys.
The attorney for the' plaintiffs admitted having a conversation with the attorney for the defendants about setting’ the cases, hut denied that he promised to notify him when the cases were set for trial. The complaints were filed in the cases against the insurance companies in March, 1925, and the answers of the defendants were filed in April, 1925. On September 26, 1925, the court set the cases for trial on the 23rd day of October, 1925. During the period of time between the filing of these suits and their actual trial there were several adjournments of the court. The second division of the circuit court in which the cases were pending had just beeii created, and the docket was considerably congested. On the 26th day of September, 1925, the attorneys were called in attendance upon the court, and the cases were set for trial for the October term. Among other cases, the cases in question were set. for trial on the '23rd day of October.
The court made a specific finding that he did not think that counsel on either side of the case tried to take any advantage of the other. The court found that, without any fault on-his part, the attorney for the insurance companies was absent when the insurance cases were set for trial and tried by the court. He was not a member of the local bar, and the court found that the cases had been set hurriedly without notifying the attorney for the insurance companies. It is inferable from what the court said that it was the custom to set cases for trial, and that, on account of the congested state of the docket, the court was proceeding as expeditiously as possible to try the cases and clear the docket. The court seemed to take the blame on itself, and thought that, under all the circumstances, the judgments in the insurance cases should be vacated.
Under the peculiar circumstances of the case it cannot be said that the circuit court erred in finding that the cases had been set down for trial by mistake without notifying the attorney for the insurance companies, who did not reside in the city where the court was being held. It is inferable that it was the custom' for the local bar to be called together and cases set for trial. This showed that it was the intention of the circuit court to have all interested attorneys notified when their cases were set for trial. By some mistake or inadvertence, this was not done in these insurance cases. The court, by its action in setting aside the judgments, evidently thought that the usual practice of notifying attorneys had not been complied with. The whole trend of his reasoning in vacating the judgments 'shows that it - was his intention to have all interested attorneys notified that their cases were set for trial. It is an ancient maxim of the law that the action of the court shall injure no one. The circuit court evidently thought that his effort to clear the congested docket was the cause of the cases being set without any notification to the attorney for the insurance companies. Under these circumstances it cannot be said that his finding that the judgment should be vacated on the ground of unavoidable casualty is without any ■ substantial evidence to support it.
It follows that the judgment of the circuit court must he affirmed. • | [
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Habt, C. J.,
(after stating the facts). The record m this case shows a proceeding instituted by the municipal court of Texarkana, Arkansas, against W. E. Turquette for an alleged contempt charged to have been committed by striking and beating said municipal judge because he had fined -said Turquette for violation of a city ordinance. Turquette was fined in the municipal court in the State of Arkansas on the 2d day of January, -1926, and the assault was made in the State of Texas on January 4, 1926. The municipal court was still in session, but had taken a short recess, during which Judge Josephs had g-one to a drugstore which was situated in the city of Texarkana, Texas, about two hundred feet from the boundary line between the States of Texas and Arkansas.
This court has held, in effect, that all acts which impede or obstruct a court of justice or which tend to produce such effect, whether done in or out of court, are to be considered as done in the presence of the court, and are punishable as contempt. Weldon v. State, 150 Ark. 407, 234 S. W. 466. In that case, during a recess of the court, the circuit judge - was struck by Weldon for conduct in the performance of his'judicial duties in trying the case of the State of Arkansas against said Weldon. The case of the State of Arkansas against Weldon was tried at the courthouse in the city of Hot Springs, in Garland County, Arkansas, and the assault and battery was made upon the judge at a bathing place about eight.miles from Hot Springs, but which was in Garland County. The court, following the rule of the common law, held that the conduct, of Weldon was calculated to impede or obstruct the circuit court in the administration of justice, and that the act should be considered as done in the presence of the court, although it was done during a recess of the court and .about eight miles distant from the courthouse.
It is insisted, however, that the assault and battery in the present case was committed outside of the territorial jurisdiction of the municipal court of the city of Texarkana, Arkansas, and, for that reason, the court had no power to pnnish for contempt. We have not been cited to any case where the precise question- has been presented, and-have not been able to find any such case on onr own research. A majority of the court, however, is of the opinion that, under the doctrine of the Weldon case and of- the decisions from other courts upon which it was partly based, this does not make any difference.
It is perfectly plain that Turquette’s object was to embarrass or obstruct Judge Josephs in the discharge of his duties. He had been granted an appeal by the municipal court, but the transcript had not yet been lodged in the circuit court. Turquette was fined in the municipal court on Saturday, and the assault was made upon Judge Josephs on the following Monday. Tur-quette evidently intended to influence Judge Josephs in the matter, and the special judge trying the contempt -proceeding was warranted in finding that the assault was made while the case was still pending in the municipal court and at a time when that court had control over its judgment. The court made a special finding that, at the time the municipal judge was struck by Turquette, the latter said: “I’ll show you what it is to have me before your court and fine me.” This is a-quotation from the testimony of Judge Josephs, and, upon appeal, the finding of the. court below must be taken by us as reflecting the purpose for which the assault was made.
In short, the trial judge was warranted in finding that the assault was made for the purpose of influencing the municipal court in the trial of the case against Tur-quette, and that, while the assault was committed in the State of Texas, it was so near the municipal courthouse in the State of- Arkansas that it should be considered as to have been consummated there, and, for that reason, it was committed in the constructive presence of the court. The writer believes the better, view is to- hold that, the act having been committed outside of the terriT torial jurisdiction of the courts of the State of Arkansas, Turquette was not guilty of contempt. • ■ • <
It is next contended that the circuit court erred in not quashing the judgment of the municipal conrt punishing Turquette for contempt on the ground that the municipal court is not a court of record and therefore could not punish Turquette for contempt of court under the rule laid down in Ex parte Patterson, 110 Ark. 94, 161 S. W. 173. We do not agree with counsel in this contention. The municipal court of Texarkana, Arkansas, was created by the Legislature of 1917. Acts of 1917, vol. 1, page 734. The act provides that the judge of the municipal court shall he at least twenty-five years of age, of good moral character, learned in the law, two years a resident -of the State, and that he shall have have practiced law six years. His salary is fixed at $1,500 a year. The act provides that 'the city clerk shall be the clerk of the municipal court, and that' the city attorney shall be present and prosecute all cases arising out of the city- ordinances. The municipal clerk is required, to keep a complete docket of all civil and criminal pro ceedings to the extent directed by the judge. Hence we are of the opinion that the statute creating said municipal court made it a court of record, and that it has the same power to punish for contempt as other' courts of record. 6 R. C. L., § 29, page 517.
It follows that the judgment of the circuit court was correct, and it will therefore be affirmed. | [
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Mbhapfy, J.
The appellee, who was plaintiff below, brought suit in the Clay Circuit Court, alleging, among other things, that appellant, who was defendant below, was indebted to him in the sum of $4,080.30, for services as general manager and chief bookkeeper for said corporation; that in the month of September, 1919, he engaged his services to said defendants to take charge of their business at Piggott, Arkansas. That he took charge and devoted his entire time thereto for five years and nine months at $250 per month. That during that time he was paid certain sums from time to time, and that, after making all deductions, left a balance of $4,080.30, for which amount he brought this -suit. He filed with his complaint the following statement of account:
“Statement of account between F. J. Orcutt and St. Francis Valley Lumber Company and T. A. Foley.'
“To service 5 yrs. 9 mos. $250 per mo. $17,250.00
Cash Nov. 5, ’19..$ 559.00
Cash Dec. 31, ’20.. 1,000.99
Cash June 30, ’21. 1,046.67
Cash Dec. 31, ’21... 1,062.20
Cash June 30, ’20.. 961.91
Cash June 30, ’22. 1,300.87
Cash Dec. 31, ’22. 1,281.59
Cash June 30, ’23. 1,393.77
Cash Dec. 31, ’23. 1,312.70
Cash June 30, ’24. 1,300.00
Cash Dec. 31, ’24.:._ 1,300.00
Cash Mar. 21, ’25. 550.00
Total .$13,169.70 $17,250.00
“Balance due F. J. Orcutt..$4,080.30
“State of Illinois, County of Edgar.
“I,., sheriff of Edgar County, State of Illinois, do solemnly swear that I have this.day of September, 1925, duly served the within copy of complaint, with summons annexed thereto, on the within named defendant, T. A. Foley, by delivering a true copy thereof to such defendant on the.*.day of September, 1925, and that such service and delivery of said copy, with summons annexed, was made upon the defendant, T. A. Foley, in the city of Paris, County of Edgar, .and State of Illinois.
“And I further swear that the defendant, T. A. Foley, is personally well known to me.
“Sheriff, Edgar County, Illinois.”
“State of Illinois, County of Edgar.
“I,.:., notary public within and for the county and State aforesaid, do hereby certify that personally appeared before me., sheriff of Edgar County, State of Illinois, the above-named affiant, whom I certify to be personally well known to me, to be worthy of credit, and made oath that the matters and things set forth in the foregoing affidavit are true.”
The defendant filed answer and cross-complaint. The answer admitted the employment of plaintiff, but alleged that the salary was fixed at $100 a month, and he had been paid in full and overpaid, and asked for judgment against the plaintiff in the sum of $3,696.61.
The testimony of the plaintiff tended to show that he entered into an agreement with president of the defendant, but that nothing was said about his salary or compensation, that is, no amount was fixed, but that he came on down to Piggott a'hcl finally took charge, and that a brother of the president came down also and showed him a contract that he, the brother, had for $250 a month, and that he stated that plaintiff’s salary would be the same. Plaintiff’s testimony tended to show that the amount of his salary for the entire time was $17,250 and that he had been paid $13,169.70.
The testimony of both the president of the corporation and his brother contradicts-the testimony of plaintiff, and tends to show that his salary was to be $100 a month and a percentage of the profits.
.There are two reasons why it appears unnecessary to go into that feature of the case. First, that the $5,000 stock which plaintiff claimed he was to have the earnings from was never delivered to him, and he never paid anything on it. And second, that it seemed very doubtful if any profits at all were made during the period.
There are a number of questions raised by appellant, and one is that, the court erred in permitting the plaintiff to testify as to the contract which the defendant had with Fred Foley, the brother- of the president of the com pany. Of course Fred Foley’s contract would not be evidence in this case at all, but it seems that the only purpose of its introduction was to show the amount of salary of Fred Foley, and this was competent only on the theory that plaintiff testified that he was to have the same amount that Fred Foley was to have. This letter could not be considered for any other purpose, but we think that portion of it was competent for this purpose.' The plaintiff testified that he entered the employ of the defendant with the understanding and agreement that he was to have the same salary that Fred Foley was receiving, and it therefore became necessary to prove what that salary was.
There was some objection to other testimony, but it is unnecessary to discuss this, because the motion for a new trial does not mention any error of the court in admitting or rejecting testimony.
Appellant urges that the court erred in its refusal to give instruction number 4, which rea,ds as follows:
“You are instructed tha.t all items of debits or credits shown in the accounts of either of the parties, prior to- September 3,1922, are barred, and neither can recover against the other. ’ ’
The court refused to give this instruction, and.in this we think the court erred. That instruction told the jury that any item in the account or any charge in the account made more than three years prior to the beginning of the suit was barred by the statute of limitations, and this would be true unless plaintiff had based his suit on a mutual open account current. #
In the case of McNeil v. Garland, this court stated:
“But it is claimed by appellees that this was a • mutual running account of such a nature as comes within the rule that items within three years draw after them other items beyond that period.”
This we think is erroneous. To constitute such an account there must be a mutual credit founded on a sub-áis ting debt on the other side or an expressed or implied agreement for a set-off of mutual debts. Angelí on Lim. 138, and authorities there cited. A natural equity arises when there are mutual credits between the parties or when there is an understanding that mutual debts shall be a satisfaction or set-off pro tanto between the parties. The only thing upon which appellees can claim that their account was.a mutual open account current was the fact of payment of $50 by the appellant. But it has been well settled that, when payments have been made by one party for which credits are given by the other, it is an account without reciprocity and only upon one side. McNeil v. Garland, 27 Ark. 343.
“Where the items in an account are all charged against the one party and in favor of the other, as herein, it is not a mutual account. It lacks the very essential to make it such — mutuality.” Fitzpatrick v. Henry, Admr., 16 N. W. 606, 58 Wis. 250.
“To constitute mutual accounts there must be mutual demands. Each party must have a demand or right of action against the other.' The exception in the statute of limitations in favor of mutual accounts has no application when th'e demand is altogether on one side, although payments on account have been made. ’ ’ McArthur v. McCoy, 112 N. W. 155, 21. S. D. 314.
“On the other hand, mutual accounts arise where each party has rendered services or sold articles of property to the other with the expressed or implied understanding that their respective claims shall,' upon settlement, be offset to the extent of the smaller claim. * * * The more usual definition of mutual accounts is a reciprocity of dealing, charges, and credits on both sides, each party having a cause of action against the other.” Lapham v. K. & T. Oil, Gas & Pipe Line Co., 123 Pac. 863, 87 Kan. 65, Ann. Cas. 19131), 813.
“A charge on one side and mere payments on the '.other do not constitute a mutual account.” Peck v. N. Y. & Liverpool United States Mail S. S. Co., 18 N. Y. Sup. Ct. 226.
The authorities are'practically unanimous, so far as we have been able to find, in holding that a mutual account must be sucli ns shows that each has a claim against the other. And where one performs services for another and payments are made from time to time, as was done in this case, there is no mutual account. There could he no recovery in this case for any charge made more than three years prior to the bringing of the suit. All charges made prior to that time are barred by the statute of limitations.
Since we hold that the court erred in refusing to give instruction No. 4 requested by the appellant, it necessarily follows that instructions given in conflict with No. 4 are erroneous and should not have been given. We deem it unnecessary to discuss the evidence or the other instructions.
It is also urged by the appellant that the plaintiff was estopped by his own conduct, and that therefore there ought to have been a verdict directed for the defendant. There is some conflict in the testimony on this question and some evidence tending to explain the reason, but this does not seem to be very fully developed, and wherever there is a conflict of testimony on any question of fact, it is proper to submit the question to the jury.
For the error in refusing to give instruction No. 4 the judgment is reversed, and the case is remanded for a new trial. | [
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Wood, J.
The plaintiff below, appellee here, instituted this action in the chancery court against the defendant below, appellant here, on a policy insuring James Richard Holder against death by accident in the sum of $1,000. The appellee alleged that the assured was murdered by his wife, the beneficiary named in the policy; that she thereby forfeited' her claim to the insurance, and that the' appellant was holding the same in trust for the estate of the deceased, which the appellee, as administrator, was entitled to recover on behalf of the estate of the deceased, James Richard Holder. The appellee alleged compliance with the terms of the contract on the part of the assured before his death and a compliance with the terms of the contract on the .part of the appellee since the death of the assured, in order to entitle appellee to recovery. The prayer was for the amount of the policy, and the statutory penalty, and a reasonable attorney’s fee.
The appellant answered, admitting- the issuance of the policy as alleged in the complaint, but denied its other allegations, and set up that appellee was barred by judgment that had been recovered by the beneficiary in the policy at a former term of the circuit court, and pleaded such judgment as res judicata. Testimony by deposition on behalf of the appellee was taken in this cause. On the 29th day of June, 1926, the same being a day of the June term, a hearing was had upon the pleadings and proof adduced. At the close of the testimony the court indicated to the attorney for the appellee that the proof was not sufficient to justify a recovery, and thereupon the attorney for the appellee asked leave to take ia non-suit, which leave the court granted, and dismissed the action without prejudice. Thereafter, on the 26th day of October, 1926, the same being a day of-an adjourned term of the chancery court, the appellant filed the following motion:
‘ ‘ On the 29th day of June, 1926, which date was a day when the present term of this court was in session, the above cause was submitted and tried in this court, and at the termination of said trial, this court announced that its findings and decree would be against the plaintiff and for the defendant upon the merits of this cause, and that upon said findings this defendant was entitled to have decree entered; that thereupon the plaintiff, after the submission and trial of said cause, and after the depositions of witnesses had been introduced and read in said trial, and after the court announced what its decision and decree ’would be, asked permission to take a nonsuit in said canse, which said permission was granted, and a nonsuit and dismissal without prejudice was thereupon entered in this cause. That said plaintiff had no right to take a nonsuit at said time; that this court was without authority to grant same, and that this defendant was entitled to have the decree in its behalf upon the merits rendered and entered of record. Wherefore it prays that said nonsuit and dismissal be set aside and that the decree be rendered in this cause upon the merits in behalf of the defendants.”
The court heard the motion upon the facts as above set forth, and, after argument of counsel, found as follows :
“That, at the time the plaintiff entered a nonsuit, the cause came on to be heard; that, after reading the testimony and before the argument of counsel, the court indicated to the attorney for plaintiff that he did not think his proof was sufficient. Whereupon the attorney for plaintiff asked leave to take a nonsuit, and dismissed the cause "without prejudice, which was at the time by the court granted, and the court finds from the foregoing-facts that plaintiff moved for nonsuit before the final submission of the case.” The court thereupon entered a decree dismissing the motion of appellant, without prejudice, from which decree is this appeal.
Section 1261 of 0. & M. Digest reads in part as follows: “An action may be dismissed without prejudice to a future action: First. By the plaintiff before the final submission of the case to the jury, or to the court, where the trial is by the court.” Then follow other subdivisions, not necessary to set forth, and the section concludes as follows: “In all other cases, upon the trial of the action, the decision must 'be upon the merits.”
Under the facts above set forth the chancery court found that the “the plaintiff moved for a nonsuit before the final submission of the case.” The finding of the chancery court was correct. Such being the case, the above statute in plain terms authorized the court to dis miss the action without prejudice to a future action. Carpenter v. Dressler, 76 Ark. 400, 89 S. W. 89, was a case at law. The evidence had been adduced and the cause submitted to the court for hearing. The argument had begun, but, before it was concluded, the plaintiff asked and was denied permission to take a nonsuit. This court, in passing upon the ruling of the trial court, at page 403 of the opinion, said: “A case is not finally submitted until the argument is closed, and a plaintiff-has a statutory right to nonsuit until final submission.”
The above ruling governs this case. The provision of our law under review is a part of the Civil Code which was modeled after the Civil Code of Kentucky. In Vetrees v. Newport News, etc., Company, 95 Ky. 314, 25 S. W. 1, the Supreme Court of .Kentucky, passing upon the similar provision of its Civil Code, among other things said:
“Now, the bill of exceptions, which we have quoted, shows that, although the court had sustained plaintiff’s motion for the peremptory instruction, there had not been any submission of the case, final or otherwise, to the jury before plaintiff moved to dismiss the case, for it is stated that the jury was not actually instructed to find for defendant until after the motion of plaintiff to dismiss was made. Strictly and properly there can be no final submission of a case to the jury until all questions of law have been disposed of by the court, instructions and papers pertaining to the case have been actually delivered to the jury, and they are authorized, without further interposition or control of the court., to proceed to a judicial examination of the issue of fact submitted to them.”
Now, while the above rule of our own court and of the Supreme Court of Kentucky in construing the statute was announced in law cases, the same rule applies where the case is tried by the court, either at law or by the chancery court, before the case is submitted to the court or jury for final determination. Here, notwithstanding the court had indicated to the counsel for the plaintiff that the court did not think the proof sufficient to justify a recovery, counsel for plaintiff still had the right to ask permission to argue his client’s cause before the court; and there is nothing in the record to show that the court, if asked, would have denied him this right and privilege. If counsel had availed himself of this right and privilege, he might have been able to convince the court that its view of the testimony before hearing the argument of . counsel was erroneous and thus induced the court to find in favor of his client. Instead of taking this course, counsel for plaintiff elected to take a nonsuit, which he had the right to do. In cases at law, under a similar statute, it is held that a case is not finally submitted to the jury when the last word of a charge is read, and not until the .jury are directed to retire and to enter upon a consideration of their verdict. See Bean v. Harris, 46 Iowa 118; Morrisy v. Chicago, etc., Ry. Co., 80 Ia. 314, 45 N. W. 545; Mullen v. Peck, 57 Ia. 430, 10 N. W. 829; Oppenheimer v. Elmore, 109 Ia. 196, 80 N. W. 307; Gassman v. Jarvis, 94 Fed. 603; Chicago, etc., Ry. Co. v. Metalstaff, 101 Fed. 769.
The decree is therefore correct, and it is affirmed. | [
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Hart, C. J.
This is an appeal by the Dixie Culvert Manufacturing Company to reverse a judgment of the circuit court affirming the judgment of the county court disallowing its claim for materials furnished Perry County and used by it in constructing culverts.
The facts are undisputed, and the case was tried in the county court and in the circuit court upon the same fácts. During the year 1926 the Dixie Culvert Manufacturing Company furnished to Perry County certain materials which were used' in constructing culverts in said county. The company charged Perry County the usual price for such materials, and furnished an itemized statement of the materials so furnished. In the fall of 1926 it became apparent that Perry County would not be able to pay said company for the materials furnished. On t'he 27th day of November, 1926, the judge- of the county court caused to be spread.upon the records of the Perry County Court an order in which it is recited that it was found imperatives to purchase, in 1926, .culverts to use in the proper drainage of the roads of the county during said year. The order recites that the county judge, in his official capacity, entered into an oral contract with the Dixie Culvert Manufacturing Company to furnish Perry County with culverts of certain grades and sizes, which are set out in detail in the order. The aggregate price of said materials amounted to $2,424.76. The order further recites that said county judge and said Dixie.Culvert Manufacturing Company contracted for the delivery of said materials in Perry County in 1926 to be paid for in 1927 out of the road funds of said county for that year. The Dixie Culvert Manufacturing Company presented its petition to the county court of Perry County on the 17th day of January, 1927, asking that its claim in the sum of $2,424.76 for culverts purchased by Perry County in 1926 to be paid for out of the revenues of the county for road purposes received during the year 1927. An itemized statement of the materials furnished .was filed with the petition. This statement shows that the materials were furnished and were used by the county in the construction of culverts during the year 1926.
The county court found, under the facts stated, that the contract made by Perry County with the Dixie Culvert Manufacturing Company was invalid and unenforce able. Judgment was accordingly rendered, disallowing the claim. The circuit court, after hearing the same evidence, was of the opinion that said contract was void, and it was adjudged that the judgment of the county court made on January 17, 1927, should be affirmed.
The judgment was correct. As we have already seen, the culvert material was purchased in 1926 and used by the county in constructing culverts during that year. It is true that there was an order of the county court showing thát it was imperative to purchase said material ■and use it in the construction of culverts in order to drain the roads and prevent them from being greatly damaged. This order of the county court, however, was absolutely void under what is termed Amendment No. 11 to our Constitution. Kirk v. High, 169 Ark. 152, 273 S. W. 289, 41 A. L. R. 782; Nelson v. Walker, 170 Ark. 172, 279 S. W. 11; and McGregor, Collector, v. Miller, Treasurer, 173 Ark. 459, and 30 Law Rep. 225, 293 S. W. 30.
In the case last cited it wsss expressly said that a county cannot incur any obligation in any year exceeding the revenues of that year, and, if this is done, such obligations are void and cannot be paid out of the revenues of a succeeding year. The court pointed out that, if this course could be pursued, obligations could be carried from one year to another, and in effect would nullify, to a certain extent, one of the purposes of the amendment. This was precisely what was attempted to be done in the case at bar. The materials were purchased and used by Perry County in 1926. When it was found that the revenues of that year would not be sufficient to pay for the material, it was agreed between the claimant and Perry County that the claim should be paid out of the road funds for 1927.
No useful purpose could be served by again stating the reasons for our holding in the cases above cited.. We deem it sufficient to say that the facts of this case bring it squarely within the principles of law decided in the cases' cited. Therefore the judgment of the circuit court ■will be affirmed. | [
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Kirby, J.
This appeal is from the decree compelling specific performance of the contract of sale of a certain plot No. 41 in Prospect Terrace Addition to the city of Little Rock, with a two-story brick veneer tile-roof residence, etc., thereon, by appellant.
Appellee brought suit upon the written contract of sale, which provides:
“February 16, 1926.
“Mr. W. F. Moody,
613 A. O. U. W. Bldg., City.
“Dear Mr. Moody: This is to advise that, in the event you purchase from the writer plot No. 41 Prospect Terrace Addition to the city of Little Rock, together with the house erected thereon, for tlie sum of $1.4,750, on terms hereinafter mentioned, I agree to do the following: (1). I will erect two-story brick veneer two-ear garage, with servants’ room, together with appropriate driveway from Edgewood Road. (2). I will install servants’ toilet and washstand and bath in or adjacent to said servants’ room. (3). I will repair all cracks in said house and re-tint the walls, where necessary. (4). A regular Prospect Terrace deed is to be given to you, retaining vendor’s lien for unpaid purchase price, and the agreement is that you are to pay the writer the sum of $4,750, $2,500 in cash and $'2,250 in vendor’s lien notes indorsed by you; balance of purchase price of $10,000 is to be secured by vendor’s lien on said plot No. 41, Prospect Terrace, payable $1,000 per annum, one,.two, three ¡and four years from date, and the balance of $6,000 due five years from date; interest on all the said deferred payments to be paid semi-annually at the rale-of six'per cent, per annum.
“Tours very truly,
(■Signed) “S. L. Kahn.”
“The above conditions are satisfactory, and I here' with accept same, and hand yon my check for the sum of $500 to bind the agreement. .
(Signed) “W. F. Moody.”
The complaint also alleged:
“* * * That, after the execution of said contract, the same was modified, by agreement between the parties, that the plaintiff would place a tile roof on said garage and would be relieved from constructing an entirely brick veneer building, but would make it partially stucco instead of brick, and, in reliance on said agreement, plaintiff did so construct said building. « # # y>
Alleged the full performance of the contract as modified by appellee, the refusal of appellant to comply with its terms, the readiness of appellee to make the conveyance, and tendered a warranty deed and possession, etc.
The appellant filed an answer and cross-complaint; admitted the execution of the written contract exhibited with the complaint, denied any modification thereof, and alleged: “ * * * That, under the terms of the aforesaid contract for the purchase of said plot 41, and before the acceptance of said premises by the defendant, the plaintiff, among other improvements to be made thereon, was to erect a two-story brick veneer building to be used as a two-car garage and servants’ house. That it was the agreement and understanding of the parties that said building was to conform in material, style, and appearance to the said residence on said plot; * * * should be a two-story brick veneer with tile roof, in conformity to the residence erected on said plot of ground. That said building as constructed is materially different from that called for under the contract, and does not conform in material, style, value' or appearance to the residence on the said plot. That said building is in striking contrast in appearance to that of the residence, and destroys the contemplated effect to be produced by a building as contemplated under the terms of the contract.”
Denied that appellant had complied with the terms of the contract or was entitled to specific performance thereof.
The cross-complaint alleged appellants’ purchase of the premises under the written contract, the hind of garage and servants’ house agreed to he erected thereunder, the deposit of $500 with ¡appellant upon the execution of the contract, to he applied on the purchase price upon the completion of the improvement provided for under the contract and acceptance of the premises by appellant. Alleged a breach of the contract by appellant’s refusal to construct the building (garage and servants’ house) as prescribed in the contract; the construction of a building materially different from that contracted for, and constituting a great depreciation in appearance and Value to said premises as contemplated under the terms of said contract, and his refusal to accept the premises and perform the contract because of appellee’s said breach thereof, and for which he Was entitled to the return of his deposit of said $500, and prayed judgment therefor.
It appears from the testimony that, after the parties had reached an agreement, appellee attempted to reduce it to writing* in the form of a letter providing for the erection of a one-story garage with composition roof, which, upon presentation to appellant, he refused to agree to, and required the insertion of the clause providing for the construction of a two-story brick veneer garage, as appears in the written contract, before signing it.
Appellee testified that, 'after the contract was executed, the parties agreed that the garage and servants’ house could be constructed of brick and stucco, with a tile roof, instead of all brick veneer, as specified in the contract, and that it was constructed accordingly. He* also said that appellant, the day after the execution of the contract., asked to be released from it because of an unexpected development in his financial affairs, making him fearful of his ability to perform it, but that he declined to release him under the conditions existing.
Appellant testified that, during the negotiations for sale of the property, appellee talked of constructing a one-story garage with a composition roof, and suggested that he inspect certain garages already constructed with a view to approving one of that kind for these premises; that he made such examination, and, upon presentation of the letter supposed to embody the contract, he told appellee that he must have a two-story brick veneer garage, and, it being estimated that it would cost about $500 more than the one appellee had intended to build, he agreed to pay therefor one-half the additional cost, and the memorandum .of the contract for the purchase price was accordingly changed from $14,500 to $14,750 before signature thereof.
He denied that there was ever any modification whatever of the contract for the construction of the garage; admitted that he had gone to appellee the day following thé signing of the contract, because of some unexpected development in his financial condition, and asked to be released from it, and appellee refused to release him, giving as one reason therefor that he had already ordered by wire the special tile for the roof of the garage. • He exhibited a letter from appellee, dated the 20th of July, in which he stated:
‘‘The work which the contract provides I shall perform is progressing rapidly, and I shall expect same to be completed within a reasonable time. As soon as the same is completed, I shall, of course, expect you to immediately perform your part of said agreement.”
Bracy, the contractor, also stated that appellee had told him, a day or so after he began construction of the garage, that it must have a green tile roof and be rushed to completion; that the tiling should be ordered by wire.
When appellee called appellant, after the completion of the garage, and demanded that he perform Ms contract, he refused to do so because the garage had not been built-in accordance with the contract, but had only two sides oí the first story of brick construction, the remainder being of stucco-.
Appellee said he would not change the garage as constructed, but did not, at the time, claim that it had been constructed in accordance with any agreement modifying the contract. Neither did appellee deny that he had told appellant, on the day following the signing of the contract, when appellant requested to be released therefrom, tliat he would not permit such release because he had already ordered the tiling for the roof by wire. He only said that he did not recall having made such statement.
The burden of proof was upon appellee to show a substantial compliance with the obligations of his written contract before he could require a specific performance thereof by the appellant. The written contract embodied the agreement of the parties, and its terms are not to be contradicted by parol testimony. If a modification of the contract for performance was agreed to, as claimed by appellee and denied by appellant, it devolved upon the appellee to prove such modification. This court, which tries the case de novo, holds that he has not discharged such burden, and that the chancellor’s finding otherwise is contrary to the preponderance of the testimony.
Appellant denied having agreed to any change in the terms of the written contract, and his statement is corroborated by the statement and conduct of appellee and his contractor about "the tiling for the roof, -which appellee insisted was agreed to be put on by him in consideration of the change of construction of the garage to stucco instead of brick veneer. Appellant was insisting, under the terms of the contract, that a tile roof for the garage was required.
Appellee did not deny that, upon the day after the signing of the contract, he had told appellant, who requested to be released from it, that he could not release him because he had already ordered the tiling for the roof by wire and gone to other expense, and, in his letter of the 20th instant, stating his expectation of requiring appellant to perform the contract, he makes no mention whatever of any modification thereof.
It is undisputed that the garage was not built of brick veneer construction; that it would cost about $1,000 more to change it from stucco to brick construction, and appellant and some of the witnesses thought it detracted materially from the appearance of the premises; one, a contractor, stated that the premises are worth $2,000 less because of the stucco construction, than if the garage had been built of brick veneer.
This constituted a very material failure of performance of the contract by appellee, who could not therefore compel a specific performance of it by appellant, having been guilty of a breach thereof himself. The court erred in holding otherwise.
Appellant was also entitled to recover back the $500 he had deposited or paid to be credited on the purchase price of the property when it was accepted and completed in accordance with the terms of the contract, and should have had a decree, therefor on his cross-complaint.
The decree is reversed accordingly, and the case will be remanded, with directions to dismiss the complaint for specific performance for want of equity and to enter a decree in the cross-complaint for the return of the $500, and for other necessary proceedings not inconsistent with the principles o'f equity and this opinion. It is so ordered. | [
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Wood, J.
On November 8, 1916, G-. H. Joslyn and wife executed a warranty deed to T. W. Johnson, conveying to Johnson lot 3, block 5, in Joslyn’s Addition to the town of Gould, Arkansas, the said lot being shown on the plat duly recorded in Lincoln County, Arkansas. In addition to the usual-covenants, the instrument contained the following stipulation: “It is further agreed, as part consideration of this .contract, that the said Joslyn, before the sale of lot 4 of said addition, that he changed the location of the alley from the south side of lot 4 to the north side of lot 4, making alley between lots 3 and 4 as shown on said plat, and open and donate said alley to the town.” On May 10, 1922, T. W. Johnson and wife conveyed by warranty deed tlie lot above described to G. H. Holthoff and L. F. Johnson. In addition to the usual covenants the deed contained the following-: “It is further agreed as a part of this contract that the alley on south side of lot 4 of said block 5 be moved to the north side of lot 4, as shown on said plat.”
On February 9,1922, G. H. Joslyn and wife conveyed by warranty deed to Olive Yeid Joyce lot 4, block 5, in Joslyn’s Addition to the town of Gould, as the same appears on the plat of said addition above mentioned. In December, 1925, G. H. Holthoff and L. F. Johnson instituted this action against Joslyn and W. A. and Olive Veid Joyce, defendants, and later T. W. Johnson, W. E. Free -and O. W. Seifres, as mayor, were also named as defendants. The plaintiffs alleged that, by virtue of the above deeds from Joslyn to Johnson and from Johnson to plaintiff, they acquired title to lot 3 above mentioned and also a title to an opening and location for an alley ten feet wide between lots 3 and 4. ' They alleged that, when their grantor acquired title, an alley as above described was in fact located, opened and donated, and that they and their predecessor in title had been in the open, notorious and adverse possession of the alley since November 8,1916; that plaintiffs and the public generally had continuously so occupied the alley since that time with the knowledge of defendant, Joslyn, and all other parties, and plaintiffs therefore set up title by the seven-years statute of limitations. Plaintiffs alleged that they had constructed a store building to have an opening upon the alley as above described, and that they had no other means of entering the store building with freight except through this alley. They alleged that the defendants, W. A. Joyce and Olive Void Joyce, were attempting- to obstruct the above described alley by placing material thereon for the erection of a building, and would do so unless restrained. They also alleged that, if the court should find that the alley was not properly opened and donated by Joslyn, the plaintiffs had been damaged by his breach of contract in not opening and donating the same in the sum of $1,000. They prayed that defendant Joyce be permanently restrained from obstructing the alley, and that, if this relief were denied, they have alternative relief against Joslyn for damages for breach of his contract in the sum of $1,000.
The defendants Joyce, in a separate answer, admitted that they had purchased lot 4 and had placed material on the ground for the erection of a building, but denied that, in so doing, they will obstruct an alley between lots 3 and 4. They denied that any such alley had been donated and opened and occupied as alleged by the plaintiffs. They alleged that the plaintiffs were estopped from insisting upon any change in the location of the alley from the south side of lot 4 to the north side of lot 4. They set up that the plaintiffs, by their conduct and actions, were left to their remedy, if any, against the defendant Johnson for a failure of consideration. They prayed that the complaint be dismissed as against them for want of equity.
The defendant Joslyn,. in a separate answer, denied that the plaintiffs had acquired any title to the alley in controversy as claimed by them. He denied that, at the time of the execution of the deed from Johnson to plaintiffs, an alley had been in fact donated, opened and occupied as alleged by them, and denied that plaintiffs had built a store on this alley as alleged. He denied that plaintiffs had been damaged as alleged. He alleged that the stipulation in his deed to Johnson, under which plaintiffs claim, was not a covenant or agreement running with the land and did not pass to the plaintiffs under their deed from Johnson. He pleaded the statute of limitations of five and seven years in bar of plaintiffs’ right of action against him. He also embraced in his answer a general demurrer to the complaint.
The defendant Free, in his answer, alleged that he was the owner of block 5 of Joslyn’s Addition; that he had entered into possession of same and erected a brick store building on the north side of the lot immediately adjacent and parallel with the alley between lots 4 and 5 of Joslyn Js Addition to the town of Gould; that this addition was platted and an alley ten feet wide was shown upon the plat between lots 4 and 5; that the town of Gould accepted such plat, and streets and alleys had been laid out in conformity with such plat; that the said town of Gould and the public had used the streets and alleys thus platted continuously for more than seven years since the date of the dedication.of the said streets and alleys to the town. He alleged that at no time since such dedication had there been an effort on the part of any one to change the location of the alley between lots 4 and 5 as it was originally dedicated to the town. He alleged that he, having purchased lot 5 as a corner lot, according to the plat, was entitled to have the alley between lots 4 and 5 remain as originally established.
The testimony of T. W. Johnson was to the effect that he bought lot 3 on November 8, 1916, and also the alley. He went into actual possession, and built a store on lot 3 at that time, and had occupied the alley on the south side of his store since his purchase. He had been in actual possession of the alley six or seven years when he sold to the plaintiffs. He had occupied the lot and the alley all the time until lie sold to plaintiffs. There was no other alley across block 5 during that time. The alley next to his store was the only one used by the public. Witness knew nothing about the alley supposed to be between lots 4 and 5. Lot 3 was 43 feet wide, and witness constructed his store with an opening or door on the alley, which was the only way the witness could deliver and receive freight into his store building except through the front door on the main street. Witness further testified that, at the time he purchased the lot, the surveyor established the corners of the lot but did not mark off the alley. Before witness got his deed, however, he and Judge Joslyn measured off the lot and alley. After witness purchased the lot he did not let any building be put up in the ten-foot space set apart for the alley.
F. E. Grumbles testified that he was the clerk and recorder of Lincoln County. The plat of Joslyn’s Addition west of the railroad in the town of Gould shows an alley between lots 4 and 5 but does not show any alley between lots 3 and 4. The plat was duly recorded July 7, 1915, and was introduced in evidence.
Plaintiff, L. F. Johnson, testified, and his testimony is substantially the same as that of T. W. Johnson as to the purchase of the property in controversy; that he and Holthoff purchased lot 3 as described in the deed from T. W. Johnson, as above mentioned, which he identified and introduced in evidence. He stated that the deed contained a contract for the purchase of the alley in controversy the same as the deed -from Joslyn to' T. W. Johnson. The witness further testified corroborating the testimony of T. W. Johnson to the effect that, at the time T. W. Johnson purchased, the alley in controversy was opened and turned over to the public generally, as set forth in the deed from Joslyn to T. W. Johnson; that it had been continuously used by the public since then. Witness stated that there had been no other alley opened and used in block 5, that there had been no effort by any one to close the alley in controversy except Joyce; that happened about the time this action was begun. About that time witness told Joyce that the alley in controversy had been conveyed to plaintiffs. Witness further testified that, if the alley in controversy should be closed, the damage would be about equal to the value of the lot, which was estimated to be at least $1,000. Witness stated that, at the time he came to Gould in 1916, the alley between lots 4 and 5 shown on the plat of Joslyn’s Addition had not been opened, and it would not be possible to use it as such at the present time. Witness stated that the town of Gould was using the space shown on the plat as an alley between lots 4 and 5, having built a house on it in which to keep the fire-hose.' The space witness claims as an alley is ten feet south of his property line, and no more. At the time witness discussed the matter with Joyce as to the ownership of the alley, 'witness knew that Judge Joslyn had parted with title to lot 4. The testimony of the witness was further to the effect that, in going down the space to the side door of witness ’ store, the space was all open and the wagons traveled this open space — they were not confined to the ten-foot alley. There was nothing to keep them from so doing. The vehicles going north travel across the plaintiff’s lot and those going south cross the Joyce lot. Witness had made no demand upon Judge Joslyn to change the alley from the south side of lot 4 to the north side of lot 4, and had not taken any action to have the town council make the change. At the time witness’ father purchased lot 3 there was nothing on lot 4.
The testimony of Holthoff, the other plaintiff, substantially corroborates that of Johnson.
The testimony of the witnesses for the defendants Joyce was to the effect that lot 4, south of lot 3, since 1917, had been practically an open Space and used as a passageway. One of the witnesses, Mr. McClendon, had lived in Gould about fourteen years, and his testimony was to the effect that there had always been an opening there on the south side of Johnson’s store, for the last four or five years at least. People could drive wherever they pleased. There had been an opening of at least 100 feet since the shack on the south side of Johnson’s store burned, which had been used by the general public in passing from street to street. Another witness, who owned a grist mill located on the lot at the rear of plaintiff’s store and north of their lot, stated that 75 per cent, of the people going to and from his mill and to the back door of Johnson’s store traveled through the open space south of the garage building. That condition existed until the shack burned in 1921 or 1922. All of lot 4, the alleyway between lots 4 and 5, and a part of lot 5 was used for travel.
W. A. Joyce testified that he purchased lot 4, block 5, from Judge Joslyn on February 9,1922, and he identified and introduced the deed above mentioned. He examined the plat mentioned, which showed an alley 'between lots 4 and 5. He purchased with reference to this plat. There Avas nothing to indicate that there was any alley-Avay between lots 3 and 4. Witness did not learn that the plaintiffs claimed an alleyway between lots 3 and 4 until 1922 or 1923: Witness was planning’ to construct a brick building- on lot 4. The lot is 43 feet wide. If a ten-foot alleyway Avere taken off the north side it would not be a practical business lot for the town of Gould, and the market value of the lot thus reduced in size would be $500. Judge Joslyn represented to the mtness, at the time he purchased, that his lot would be 43 feet mde. Beginning at the west end of Johnson’s store, the entire lot is used by travel from Railroad Street to Joslyn Avenue, also hitching and parking wagons and cars. Several witnesses testified that the failure to have an alley between lots 3 and 4 damaged the plaintiffs from $50'to $150.
The trial court found that there was an open space and had been since the purchase of lot 3 from Joslyn, and that not only this ten-foot strip was used by the plaintiffs, but by the general public as well, both for driving across and for parking purposes; that Johnson’s contract Avith Joslyn was contingent that the alleyway be changed from between lots 4 and 5 and located between lots 3 and 4, Avhich was never done. The court declared that no vested right, either by laAv or easement, prescription or possession, divested the defendant Joyce of title to the land in controversy. The court found that the plaintiff was damaged in the sum of $100 because of the failure of Judge Joslyn to comply Avith his contract. Thereupon the court entered a decree dismissing the plaintiff’s complaint against Joyce for want of equity, and entered a decree in favor of the plaintiffs against Joslyn in the sum of. $100. From the decree the plaintiffs-and defendant Joslyn prayed and were granted an appeal to this court.
The paragraph in the deed from Joslyn to T. W. Johnson by which Joslyn agreed, as a part of the con- ¡¿deration, that, before tlie Bale of, lot 4, lie would chango, the location of the alloy from the south side of lot 4 to the north side of lot 4, making the alley between lots 3 and 4, was not a conveyance of the title to the alley, the strip of land ten feet wide in controversy. It was an agreement on the part of Joslyn to change the location of the alley as it then appeared on the recorded plat. This agreement Joslyn failed to perform, resulting in a failure of consideration to that extent, and, of course, rendering him liable to the appellants who deraigned their title to lot 3 from Joslyn to T. W. Johnson. The preponderance of the testimony proves that the appellants were damaged by reason of the failure of Joslyn to perform his contract to open the alley in the sum of $1*00. This covenant or agreement on the part of Joslyn was a breach of a contract f-or an easement which ran with the lot conveyed by Joslyn to T. W. Johnson, appellants’ predecessor in title. It was a' continuing contract, and was not violated by Joslyn until he sold lot 4 to Mrs. Olive Veid Joyce on February 9, 1922. The agreement inured to the benefit of the appellants as the successors in title to T. W. Johnson. The action by appellants against Joslyn is not barred by the statute of limitations. Tlie decree therefore in favor of the appellant Holthoff against Joslyn in the sum of $100 is affirmed.
As we have seen, appellants acquired no title to the alley or strip of land in controversy under the deed from Joslyn to T. W. Johnson. Indeed, the agreement of Joslyn to open the alley between lots 3 and 4 was one impossible for him to perform, because the undisputed evidence shows that he had already dedicated the land in Joslyn’s Addition to the town of G-ould and laid off the same into lots and blocks, with streets and alleys, as delineated on a plat which was filed by Joslyn as evidence of his dedication, and duly recorded on July 7, 1915. The law is that “an owner of'land, by laying out a town upon it, platting it into lots and blocks, and selling lots by reference to the plat, dedicates the streets and alleys to the public use, and such dedication is irrevo cable. * * * The dedication becomes irrevocable the moment that these acts occur.” Frauenthal v. Staten, 91 Ark. 350-355, 121 H. W. 395, and oases there cited.
In 19 C. J. 928, it is said:
“Where the owner of a tract of land lays it out in streets and lots delineated on a map or plan and sells lots bounded by such streets, which are referred to in deeds of conveyance as boundaries, the legal effect of the grants is to convey to the grantees the right-of-way over the streets respectively as laid out. * * * The right-of-way passes to each subsequent purchaser of the lots to which the easement appertained, whether mentioned in the conveyance or not. Furthermore, this also constitutes an incipient dedication to the public, which, according to the weight of authority, the grantor cannot revoke, although there has been no formal acceptance by the public authorities, or by user by the general public. Notwithstanding the fact the streets are never used or accepted by the public, the purchasers nevertheless acquire the same right in the'streets so described as against the grantor and each other as. they would if they were in fact.public streets.”
Mrs. Olive Yeid Joyce had a right to purchase and to acquire a perfect title to lot 4, block 5, Joslyn’s Addition to the town of G-ould, with reference to the alleys and streets in such addition as were on record at the time of her purchase. The undisputed testimony shows that Mrs. Joyce purchased lot 4, block 5, with reference to the plat of the town then on record, and that she had no knowledge of an alleyway running along from Railroad Street to Joslyn Avenue by the side of Johnson’s store on the south. Even though she had constructive notice by the deeds on record that Judge Joslyn had agreed to change the alley as specified in those deeds, this would not affect her right to purchase lot 4, block 5, Joslyn’s Addition, with reference to the recorded plat of such addition. Even actual notice of the deeds under which appellants deraigned title to the lot in controversy could not affect her right to purchase lot 4 with reference to the recorded plat of Joslyn’s Addition. The appellee, Mrs. Joyce, acquired title to lot 4 in Joslyn’s Addition, and with it the right to protest, and to successfully resist, the effort on the part of the appellants to have the alley changed from between lots 4 and 5, as it appeared on the recorded plat, to an alleyway between lots 3 and 4.
In this view of the law it becomes unnecessary to discuss the question of appellants’ alleged claim of title by prescription. The decree of the trial court is in all things'correct, and it is therefore affirmed. | [
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Kirby, J.
The appellant company brought this suit against Foster & Murray, a partnership, composed of J. C. Foster and I. C. Murray, upon a written contract of settlement of their account for materials furnished, and had garnishments issued against certain other persons claimed to be indebted to the defendant. The garnishees answered, denying any indebtedness, and no answer was filed by the defendants. The plaintiff filed a denial of the statement or answer of no indebtedness by the garnishees, and the case proceeded to trial.
The written contract of settlement was introduced, admitting an indebtedness of $1,835.10 to plaintiff, and stating’ that certain sums were due the defendants from, the Invader Oil Company, and, under a consent decree in the case of John D. Murray v. James B. Liggett et al.; that the parties were desirous of making a settlement, and agreed that the appellant company should be paid the sum of $700 from their claim against the Invader Oil Corporation; “that the claim against the other parties herein shall be equally divided between the Marion Machine, Foundry & Supply Company and Frank Myrick, after deducting a reasonable amount as attorney’s fees, until both parties are paid in full.”
The district manager of the appellant company stated that there was a balance of $611.93 due the said company, after all payments received under said contract of settlement, amounting to $1,125.04, had been duly credited.
The defendants testified, without objection, that they had been indebted to the supply company; that they made settlement of their indebtedness, agreeing to pay the balance due thereon, as stated in the written account, with an assignment of certain accounts due them from other parties, out of which it should be paid, and that the whole amount due under the contract had been realized by the plaintiff; that their debt was paid in full by the written contract and assignment of accounts aiid amounts collected thereon.
As already stated, no objection was made to any of this testimony nor to the court’s instructions to the jury. It returned a verdict in favor of defendants, from the judgment upon which this appeal is prosecuted.
It is contended that the judgment is contrary to law and not supported by any testimony. No answer was filed by appellees, denying the indebtedness to appellants under the contract sued on, but the case proceeded to trial without objection as thoug'h such denial had been made, the parties treating the matter as at issue, and neither was there any. objection to the testimony introduced conducing to show payment had been made of all indebtedness due from the defendants under the terms of the written contract, being in contradiction of and varying said contract.
The pleadings are usually regarded amended to conform to the proof made without objection, and, there being no objection to the introduction of such testimony in support of a denial of any indebtedness due to tlie plaintiff under the contract, as though such an answer had been filed, the matter will be treated here as having been at issue as it was regarded in the trial court.
No question can be raised here as to the ambiguity of the written contract or any error committed in permitting the introduction of parol testimony regarded contradicting or varying its terms, since no objection was made to the introduction of such testimony in the trial court. The instructions to the jury are not complained of.
The judgment is affirmed. | [
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Humphreys, J.
This is an appeal from a judgment dismissing appellant’s complaint, after sustaining a demurrer' thereto, because it failed to state a cause of action against appellee. The suit was brought by appellant, collector of Benton County, to recover from appellee, sheriff of said county, $3,325 received as a commission for issuing to and collecting license fees. from owners and operators of motor vehicles, during the period beginning January 1, 1925, continuing- until the institution of the suit. Appellant contends that it was his duty under the law to issue and collect for licenses to operate motor vehicles in said county, and that appellee issued and collected them without authority. Appellant relies. as a basis for Ms suit, upon § 44 of act No. 5 of the Extraordinary .Session of the General Assembly of 1925, known as tbe Harrelson Road Law,- which reads as follows:
“The duties required by this act of sheriffs in the collection, accounting for and paying oyer motor vehicle license taxes, are duties to be performed by them in their capacities of ex-officio collectors of all taxes in their respective counties, and their respective official bonds as such collectors shall be liable for the faithful performance of such duties and for truly accounting for and paying over all such license taxes; provided, where ' such sheriffs, as ex-officio collectors, permit the operation in their counties for a period of thirty days of motor vehicles without licenses, the amount of said license shall be chargeable to said sheriff, paid by him, and his bond liable therefor. Where said sheriff knowingly and willfully permits the operation of motor veMeles for a period of thirty days without collecting said license or making arrest for violation thereof, the said sheriff shall be guilty of a misdemeanor, and, in addition to the penalty provided therein for like misdemeanors, shall be liable to removal from office.”
His contention is that the offices of sheriff and collector in Benton County were separated in 1907 by act of the Legislature, and that the sheriff was not ex-officio collector during the period he collected for said licenses, and had no right to collect for them, under § 44 of said act. In other words, appellant’s contention is that § 44 authorized him, as collector, to issue and collect for said licenses. The section imposes the duty upon the sheriff, as ex-officio collector, to issue and collect for them. As a matter of fact the collector (appellant) was not ex-officio collector at the time, any more than the sheriff was. He was the collector of said county, and not the ex-officio collector thereof. As the section in question is ambiguous when read alone and literally, in order to arrive at the intention of the Legislature it will be necessary to read the section in connection with the preceding sections relating’ to tlie collection of said licenses. Section 40 of said act reads as follows:
“It shall be the duty of the Commissioner of State Lands, Highways and Improvements to furnish, on or before January first of each year, to the sheriffs of the various counties of this State, application blanks for the registration of motor vehicles. Said application blanks "shall be prepared in such form as may appear to the Commissioner of State Lands, Highways and Improvements to be necessary to properly carry out the provisions of this act, and said blanks shall bear serial numbers. 'The Commissioner of State Lands, Highways and Improvements shall charge to each sheriff the application blanks furnished to him in the same manner as poll-tax receipts, are now charged to sheriffs by the Auditor of the State. On or before December 31 of each year each sheriff shall return to the Commissioner of State Lands, Highways and Improvements all application blanks which he may have on hand which have not been issued, and the Commissioner of State Lands, Highways and Improvements shall charge each sheriff the sum of thirty-five dollars ($35) for each unused application blank not returned or accounted for. There shall be printed upon such application blank a receipt to be filled in and signed by the sheriff of the county.”
Section 41 of the act provides that any person required to register any automobile, truck or other motor vehicle shall determine the fees required for such vehicle and shall pay to the sheriff in the county in which he shall reside the fee required by this act, whereupon the said sheriff shall execute the receipt printed upon said application blank and shall deliver such blank to such applicant. The sheriff of each county shall retain for service, in addition to his salary, thirty-five cents out of each license fee collected by him. The sheriff shall appoint such number of deputies as may be approved by the county court, whose duty shall be to assist in the enforcement of highway regulations and police rural roads.
Section 42 provides that it shall be the duty of each sheriff to pay into the State Treasury, to the credit of the State Highway fund, all moneys received' by him under the provisions of this act, less the amount authorized to be retained by him, within thirty days after its collection.
Section 43 provides that, when the sheriff returns unused application blanks to the Commissioner, he shall issue a complete statement showing the number of applications received by him, the amount of fees received for each, and the Commissioner shall determine from such report whether or not the sheriff has properly accounted for and paid over the proper amount of money, and, if he failed' to do so, he shall notify such sheriff, and the Attorney General shall bring suit against the sheriff for the recovery of such money so due. It provides further that the sheriff of each county collecting the registration license fees shall file quarterly reports with the Highway Commissioner of all applications used by him, showing the number of applications and the amount received for same.
It will be observed throughout that the Harrelson Act authorizes the sheriff to issue and collect for the licenses, unless § 44 thereof forbids him from doing so and imposes the duty upon the collector. Even § 44 imposes the duty upon the sheriff, but in the capacity that neither he nor the collector possesses, because the offices of sheriff and collector had been separated by an act of the Legislature. This section can be reconciled with the other sections of the act referred to above by treating the language fixing the capacity in which the sheriff should act, as surplus-age, and this is the only way to reconcile the various sections of the act and leave a workable method for issuing and collecting for the licenses.
In interpreting statutes the inteut of the lawmakers is the object to be obtained. When §§ 40, 41, 42, 43 and 44 of said act are read together it is quite apparent that the Legislature intended for the licenses to be -issued by the sheriff and collected for by him. The same Legisla ture that passed the Harrelson Road Law, at a special or called session, discovered tlie ambiguity in tbe Harrelson Act and attempted to remedy it by enacting’ tbe following law:
“An act to amend § 21 of act No. 5 of tbe extraordinary session of tbe General Assembly of the State of Arkansas, approved October 10, 1923, by changing tbe classification of Lafayette County from class G to class D for tbe distribution of certain road funds to tbe various counties.
“Be it enacted by tbe General Assembly of tbe State of Arkansas:
“Section 1. That tbe fifth paragraph of § 21 of act No. 5- of tbe extraordinary session of tbe General Assembly of tbe State of Arkansas, approved October 10, 1923, be amended to read as follows: ‘The counties whose portion is to be used in tbe ratio of 50 per cent, for tbe county highway improvement fund, are as follows: Class D, Carroll, Cross, Faulkner, Jackson, Newton, Saline, Stone, Howard, Washington, White and Lafayette counties.’ That tbe eighth paragraph of said % 21 of said act No. 5 be amended to read as follows: 'The counties whose portion is to be used exclusively for tbe county highway improvement fund are as follows: Class G-, Bradley, Calhoun, Clay, Cleburne, Crawford, Fulton, Grant, Craighead, Greene, Hot Spring, Lee, Logan, Marion, Miller, Mississippi, Nevada, Ouachita, Pike, Scott, Sebastian, Sharp, "Onion, Lincoln and Benton counties.’
“Section 2. This act involving necessary functions and expenses of State Government, and being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this act shall take effect and be in force from and after its passage.- Approved April 9, 1924.”
It is contended that the amending act just quoted is void because not one of the subjects included in the. Governor^ call for the special session. Without deciding that question, the act indicates very clearly that the Legislature intended in the Harrelson Act to impose the duty of issuing and collecting for State licenses upon the sheriff. The purpose of the amendment was to clarify the ambiguity existing in the Harrelson Act and not to change collecting officers.
No error appearing, the judgment is affirmed. | [
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Wood, J.
This, is action by the plaintiff, Cole, against the defendant railway company to recover damages in the sum of $409.19, which plaintiff alleged he sustained on a carload of peaches shipped by him on July 25,1925, from Highland, Arkansas, via Prescott & Northwestern Railroad Company and Missouri Pacific Railway Company, consigned to the plaintiff at Kansas City, Missouri, and diverted by him to G-eorge Floyd at Ellsworth, Kansas, over the defendant railway. The plaintiff alleged that the injury and damage to the peaches were caused by the negligence of the defendant in not keeping the car properly refrigerated in which the peaches were being transported. The defendant answered, and denied the allegations of negligence, on the part of itself or its connecting carriers, and alleged, by way of affirmative defense, that, if the peaches were damaged, it was caused by the failure on the part of the plaintiff to properly load, brace and pack same. For further defense it was alleged that, under the contract of shipment, claims for loss, damage or injury must he made in writing within six months after delivery of the shipment. That this was a condition precedent for recovery under the contract, and that plaintiff had failed to comply with the same; and, for further defense, that the damage, if any, was caused from inherent defects and infirmities of the peaches.
The plaintiff introduced testimony tending to prove that the peaches were delivered to the Prescott & Northwestern Railway Company at Highland, Arkansas, shipped under the name of Bert Johnson Orchard Company, billed to T. 0. Cole at Kansas City, and diverted from there to George Floyd at Ellsworth, Kansas. The car arrived at its destination over the defendant railway on July 31, about seven o’clock a. m., and was called for by plaintiff about nine o’clock a. m. Cole’s agent handling the car at Ellsworth asked permission of the defendant’s agent at that place to let him unload the ear. The car had been sold to three merchants at $2.50 per bushel delivered. The defendant’s agent refused to let Cole’s agent unload the car, saying that he had to have a bill of lading or a written order from the shipper. Cole’s agent offered to pay the freight, and wired Cole to instruct the defendant’s agent at Ellsworth to release the car. The car was released at six o’clock p. m. on July 31. It was found that the bracing had been shaken loose and 24 baskets of the peaches had been spilled. The top layer and the second layer were moulded, caused from getting warm after being under refrigeration. Plaintiff’s agent sold the car in that condition, after paying the freight, for $360.78. If the peaches had been in good condition they would have brought $1,005. The loss on the car was $409.10. The peaches were properly iced at first, and were damaged because, somewhere along the route, the ice had melted, and the car had not been re-iced. It was shown that the peaches, when delivered to the railroad for shipment, were what is designated as a commercial or standard pack-ones, twos and threes, all in firstclass condition, sound in every respect. On the hill of lading was the following notation: “Delivered only on written order of Patterson Orchard Company, sales agent, without surrender bill of lading. ’ ’
The witness who stated, over the objection of appellant, the condition of the peaches as to decay, and, in his opinion, the canse thereof, had had five years’ experience in handling peaches, and, during that time, had handled 100 cars. When this witness was permitted finally to enter the car at Ellsworth, Kansas, he found about one-half the hunker full of ice. The freight hill was introduced, which showed that the peaches had been consigned to the plaintiff’s agent, George Floyd, at Ellsworth, Kansas, and it had a notation made on the same by the defendant’s delivering agent, as follows: “Car received in very bad condition. Peaches badly molded, braces in car loose at one end. Looked as if some gone. Thirty-six baskets total loss — others badly damaged.”
Plaintiff’s agent was permitted to testify, over the objection of appellant, that he was allowed to enter the car at six p. m. without producing a written order or bill of lading.
There was testimony on behalf of the appellant to the effect that, on July 28, the time the car was turned over to the appellant, appellant’s agent at Kansas City inspected the same and found the temperature to be 45 degrees at the top and 46 degrees at bottom. Peaches firm to ripe, decay two to five per cent., brown rot, fifty to seventy-five per cent, blemishes; 75.to 100 per cent, curculio, or insect stains, and no whiskers. There was also testimony by the defendant tending to prove that the assistant cashier and divergent clerk of the Missouri Pacific Railway, who handled this car at Kansas City, carried.out the orders given by him to divert the car to the Frisco. PTe had had eighteen years’ experience in the railroad service. The bill of lading is a contract of shipment. The original is presented on" the arrival of the goods, and is the authority for delivery. The waybill is made from the bill of lading, and travels with the car, carried by the conductor. On the arrival at destination the way-bill is delivered to the depot agent, and then to the consignee. The depot agent does not receive the bill of lading until the consignee brings it to him.
The court instructed the jury, and we will refer to these instructions later. The. jury returned a verdict in favor of the plaintiff in the sum of $200. Judgment was entered in plaintiff’s favor for that sum, from which is this appeal.
The appellant first contends that there is no evidence to establish negligence on the part of the appellant. We cannot concur in this view of learned counsel for the appellant. The salient features of the evidence hearing on this issue are set forth above. The testimony of the appellant’s own witness, Evers, who inspected the car when it arrived at Kansas City over the Missouri Pacific Railway, between nine and ten o’clock a. m. on July 28, was to the effect that, when he went into the car, the ice bunkers were full of ice; the fruit was firm to ripe. He stated that it contained some blemishes, describing the same, but said that there were no whiskers. The jury might have found that there was no unnecessary or unusual delay in the diversion of the car from the Missouri Pacific Railway to the appellant. The appellant therefore had possession of the car from about 1:40 p. m. on July 28 to about seven a. m. on July 31, a period of something more than two days. The testimony of appel-lee’s agent- to whom the peaches were consigned at Ellsworth, Kansas, and who had had -large experience in handling shipments of this character, was to the effect that, .when he was permitted to enter the car at six o’clock p. m. on the day of its arrival at Ellsworth, he found the peaches badly decayed, and that the peaches were properly iced at first, and that, somewhere along the line, they had not been re-iced, and the ice had melted until there was only half a bunker of ice, which was too low. He further stated that a twelve-hour delay in re-icing the car would have made the condition worse. The testimony was sufficient to warrant the jury in finding that the car was properly iced when appellant received the same at Kansas City and that the appellant neglected to re-ice the same while the car was in its possession, and tliat because of this neglect the peaches were found in a decayed condition when appellee’s agent obtained possession thereof at .Ellsworth, Kansas. Even if it be conceded that there was delay in delivering the peaches to the appellee’s agent after the arrival of the car because of the absence of a bill of lading, nevertheless during this delay the appellant was. still in possession of the peaches and it was its duty to exercise ordinary ca,re to see that they were properly iced in order to preserve them as far as possible. It was a question of fact for the jury under the evidence as to whether or not the appellant was negligent in handling the peaches. It occurs to us that this question was not a matter of presumption, but the affirmative testimony tended to prove that the appellant Avas negligent.
The contract of shipment provides as follows: “Claims for loss, damage or injury to property must be made in writing to the originating or delivering carrier or carriers issuing this bill of lading within six months after delivery of the property, * * *; provided, that if such loss, damage or injury was due to delay or damage Avhile being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim or filing of claim shall be required as a condition precedent to recovery.” The appellant alleged that the plaintiff failed to comply with this provision of the contract and pleaded such failure as a defense to the action.
Among other instructions on this issue, the court at the instance of the appellant told the jury in instruction No. 12. that the burden Avas on the plaintiff: to prove that claim for loss, damage or injury to the peaches was. made in writing to the Prescott & Northwestern Railway Company or the defendant Avithin six months after the delivery of said peaches to the consignee at EllsAVorth, and if the plaintiff failed to prove that such written notice was given, the defendant Avas not liable unless the jury found that it was negligent in failing to ice the car during the time defendant was in possession thereof, and the burden of proving such negligence, if any, by a preponderance of the evidence was on the plaintiff.
The court also instructed the jury on this issue, in instruction No. 5, that the burden was on the plaintiff to prove by a preponderance of the evidence that the peaches were delivered to the initial carrier in good condition and of the kind and quality .susceptible of transportation without damage en route if the transportation was handled without negligence on the part of the carriers, and, if the plaintiff failed to prove this fact by a preponderance of the evidence, the defendant was not liable.
The court also, at the instance of the appellee, in its instructions numbered 2 and 3, in effect told the jury that, if it believed from a preponderance of the evidence that the peaches were in a good, sound condition at the time they were received by the appellant for shipment, and were in a damaged condition at the time they were delivered to the consignee at Ellsworth, Kansas, plaintiff had made out a prima facie case against the defendant, and the burden was on the defendant to show that the damaged condition of the peaches did not result from any negligence on the part of the defendant.
This is an interstate shipment, and the law as declared by the Supreme Court of the United States must govern. In one of its most recent pronouncements upon.the subject the Supreme Court of the United States, among other things, said:
“¥e think that, by the use of the words ‘carelessness or negligence,’ it was intended to relieve the shipper from the* necessity -of making written proof of claim when, and only when, the damage was due to the carrier’s actual negligent conduct, and that by carelessness or 'negligence is meant not a rule of liability without fault, but negligence in fact. * * * There is no language in the statute from which a purpose may be inferred to vary or limit the common-law rules governing proof of negligence as a fact in issue, and the shipper may follow these rules when he seeks to show that no notice of claim was necessary. The respondent therefore had the burden of proving the carrier’s negligence as one of the facts essential to recovery.” C. & O. Ry. Co. v. Thompson Mfg. Co., 270 U. S. 422, 46 S. Ct. 320; Barrett v. Van Pelt, 268 U. S. 85, 45 S. Ct. 437; see also Davis v. Roper Lbr. Co., 269 U. S. 158, 46 S. Ct. 28. On the theory that there was no compliance with the contract in regard to the filing of the written claim for loss, damage or injury, as we have already seen, there was positive, affirmative, proof to justify the jury in finding that the ■ appellant was negligent in handling the peaches, and, if that were the only theory, the court would have ruled correctly in granting appellant’s prayers for instructions Nos. 12 and 5, supra.
But, on the other hand, if the requirements of the law and contract in regard to giving notice in writing of claims for loss, damage or injury to property have been complied with, then the court ruled correctly in instructing the jury as it did in granting appellee’s prayers for instructions Nos. 2 and 3, supra. The bill of lading required that the claim for loss or damage or injury to the property must'be made in writing to the delivering carrier or carriers issuing'' this bill of lading within six months after delivery of the property. In St. Louis-San Francisco Ry. Co. v. Keller, 90 Ark. 308, 119 S. W. 254, we said:
“The object of the conditions of this character, it is said, is to enable the carrier, while the occurrence is recent, to better inform himself of what the actual facts occasioning the loss or injury were, and thus protect himself against claims which might he made upon him after such a lapse of time as to frequently make it difficult, if not impossible, for him to ascertain the truth.”
This action was begun by the appellee against the appellant on October 22, 1925. That was within less than three months after the alleged loss and damage to the appellee by the appellant occurred. The appellee’s complaint certainly set forth in writing its claim for the loss and the damage sustained by him with sufficient certainty to precisely advise the appellant of the nature of his claim. The appellant was summoned at once, and therefore notified in a definite way of the claim appellee was making, and, after being thus served with notice of appellee’s action, a period of more than five months intervened before the cause was brought to trial, during which period the appellant had ample opportunity to make all the investigation necessary or that could have been reasonably desired to ascertain the truth connected with the claim and to shape its course with reference thereto. This is all that the provision of the law and the contract under review contemplate.. We hold therefore that the appellee complied with his contract in regard to making the written notice for claim of loss, damage, or injury to his property. Such being the case, it follows that, when appellee introduced evidence to show" delivery of the shipment to the carrier in good condition and its delivery to the consignee in bad condition, the petitioner became subject to the rule applicable to all bailees, that such evidence makes out a prima facie case of negligence. The effect of appellee’s evidence was to make a prima facie case for the jury. See C. & O. Ry. Co. v. Thompson Mfg. Co., supra, pages 422-423, and cases there cited; also the case of H. Rouw v. St. L. S. F. Ry. Co., ante. p. 1, and other Arkansas cases there cited.
Having granted appellee’s prayers for instructions Nos. 2 and 3, to be sure the court should not have granted the appellant’s prayers for instructions Nos. 5 and 12, because the latter prayers were in conflict with the former and made the charge of the court on the burden of proof as to negligence inconsistent and contradictory; however, appellant is not in an attitude to complain of the ruling of the court in granting its prayers for instructions Nos. 5 and 12. Appellee’s prayers for instructions Nos. 2 and 3 were correct, and appellant cannot claim that to be a reversible error which it invited the court to make by granting its prayers Nos. .5 and 12. Appellant certainly was not prejudiced because the court erred in placing the burden to prove negligence on the appellee.
There is no reversible error in the record, and the judgment is therefore affirmed. | [
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Mehaeey, J.
The appellant, plaintiff below, filed the following complaint:
“The plaintiff, for its cause of action against the defendant, alleges:
“First. That the plaintiff is a corporation organized and existing under and by virtue of the laws of the State of Louisiana, and is engaged in the wholesale grocer business in said State, with its principal office in Shreveport, Louisiana, and branch office at Minden, Louisiana.
“Second. The defendant is a banking corporation organized and existing under and by virtue of the laws of the United States, with its principal office in St. Louis, Missouri, and was, at all times hereinafter mentioned, and is now, under and by virtue of the laws of the United States, operating a branch bank, known as the Little Rock Branch Federal Reserve Bank of St. Louis, in Little Rock, Arkansas.
“Third. That on or about the.day of December, 1923, H. T. Dickens of Bussey, Columbia County, Arkansas, was indebted to the plaintiff upon account in the sum of $897.44, and mailed his check, drawn on the Bank of Taylor, of Taylor, Columbia County, Arkansas, for the sum of $897.44, in settlement of said account; that said cheek was mailed by the said H. T. Dickens at Bussey, Arkansas, to the plaintiff at Minden, Louisiana, and was received and the amount credited to the account of H. T. Dickens by the plaintiff, on or about the.day of December, 1923.
“Fourth. That on or about the.day of December, 1923, Gr. W. Brown, of Taylor, Columbia County, Arkansas, was indebted to the plaintiff upon account in the sum of $806.47, and mailed his check, drawn on the Bank of Taylor, of Taylor, Columbia County, Arkansas, for the sum of $806.47, in settlement of said account; that said check was mailed by the said Gr. W. Brown at Taylor, Arkansas, to the plaintiff at Minden, Louisiana, and was received and the amount credited to the account of Gf. W. Brown by the plaintiff on or about the...day of December, 1923.
“Fifth. That on or about the.day of December, 1923, as soon as said checks were received by the plaintiff, it deposited said checks in the Bank of Minden, of Minden, Louisiana, for collection; that the First National Bank of Shreveport immediately indorsed and transmitted said checks for collection to the defendant at Little Rock, Arkansas; that, on or about the.day of December, 1923, the defendant transmitted the afore said checks, together with other checks, to the Bank of Taylor, Taylor, Arkansas, for collection and return.
“Sixth. That on the.day of December, 1923, the said Bank of Taylor received said checks drawn on it las aforesaid, and stamped said checks ‘Paid,’ and charged to the accounts of H. T. Dickens and Gr. W. Brown, the said Dickens and Brown each having more to their credit in the Bank of Taylor than the amount of each of said checks, and on the same day the said Bank of Taylor transmitted to the defendant its draft on the Bankers’ Trust Company of Little Rock, Arkansas, for the aggregate amount of the checks, including the two checks sued on herein; that the defendant, immediately upon its receipt, presented said checks to the Bankers’ Trust Company of Little Rock, Arkansas, for payment, and payment was refused, the Bank of Taylor having been placed in the hands of the State Bank Commissioner, notice of which had been received by the Bankers ’ Trust Company; that the plaintiff does not know whether the payment of said checks was refused on account of insufficient funds or whether it was on account of having received notice that said bank had been taken in charge by the .State Bank Commissioner. That the defendant thereafter charged the amount of said checks to its immediate correspondent, First National Bank of Shreveport, and the First National Bank of Shreveport immediately charged the amount of said checks back to the Bank of Minden, who in turn charged the amount of said checks hack to this plaintiff.
“Seventh. Plaintiff alleges that the defendant was negligent in not requiring the Bank of Taylor to pay the amount of said checks in money and in accepting in payment of said checks a draft drawn on the Bankers ’ Trust Company of Little Rock, Arkansas, which proved to he worthless; that the plaintiff, by reason of said negligence, suffered damages in the sum of $1,703.91, the amount of said checks.
“Wherefore, premises considered, plaintiff prays judgment against said defendant for its damages afore said in the sum of $1,703.91, together with interest, cost, and all other and proper relief.”
Appellee, defendant below, filed demurrer and answer, which are as follows:
“The defendant demurs to the complaint herein beeaúse the same does not state a canse of action, and, in no wise waiving said demurrer, but specially reserving and standing upon the same, defendant, by léave of court, answers and says:
“1. Defendant is not liable to the plaintiff because, at the time the checks in question were forwarded by the defendant to the Bank of Taylor, upon which they were drawn by H. T. Dickens and G. W. Brown, the said Bank of Taylor was insolvent.
“2. The defendant denies,that it is liable to the plaintiff, and says that it has no contractual relations with the plaintiff; that there is no privity of contract between the • plaintiff and defendant, as the defendant received such checks through the Federal Reserve Bank of Dallas, such cheeks being direct routed to the defendant by the First National Bank of Shreveport by the consent only of the Federal Reserve Bank of Dallas, with directions to defendant to transmit the proceeds of the checks, if collected, to the Federal Reserve Bank of Dallas. Defendant is responsible therefore, if liable at all, .which it denies, only to the Federal Reserve Bank of Dallas.
“3. Defendant is not liable in any event, because it was agreed between the First National Bank' of Shreveport and the Federal Reserve Bank of Dallas that all checks for collection, such as those involved in this action, might be forwarded to the drawee bank and a bank draft accepted therefor in payment. That the Federal Reserve Bank of Dallas published a notice to this effect to all of its correspondent and member banks, including the First National Bank of Shreveport, which directly assented thereto and was bound by such regulation, and all the customers of the First National Bank of Shreveport, forwarding checks for collection through the Federal- Reserve Bank of Dallas, and, by its permis sion, direct routing checks to its correspondent banks, were bound by such regulation. Thai the defendant, on its own part, had given notice to all of its correspondents, including the Federal Reserve Bank of Dallas, that it would forward checks for collection to the drawee bank and accept in payment therefor a bank draft, and that the Federal Reserve Bank of Dallas, the First National Bank of Shreveport, and all banks for whom defendant, undertook to collect checks, assented to and were bound by such notice.
“4. Defendant, saving and reserving all of its defenses heretofore set. up, says that it is not liable to the plaintiff in any event on account of the allegéd negligent act complained of, because, after such checks had been forwarded to the Bank of Taylor, and after the Bank of Taylor had remitted to pay the same by a bank draft drawn on the Bankers’ Trust Company of Little Rock, and after. such .draft was dishonored by the Bankers’ Trust Corhpany of Little Rock because of the insolvency of the Bank of Taylor, and after notice of such fact had come to the knowledge of the plaintiff, the plaintiff elected to hold the Bank of Taylor, and ratified the act of the defendant by filing claim with the State Bank Commissioner against the Bank of Taylor, seeking to collect the proceeds of such check from such drawee bank. The defendant pleads such ratification in bar of the plaintiff’s claim hereunder.”
Thereafter the defendant filed the following amendment to its answer:
“The defendant only undertook to collect checks or forward the. same for collection under the lawful conditions set forth by regulations published by the Federal Reserve Board and in force and effect at the time of the transactions complained of, particularly regulation J, series of 1920, and the .conditions and terms for the collection of checks set forth in Circular No. 6, series of Í922, dated December 20, 1922, lawfully published by the defendant, and the terms and conditions in Circular No. 19, series of 1923, dated September 24,1923, lawfully published by the Federal Reserve Bank of Dallas, all of which regulations, terms and conditions fully bound the plaintiff, and by which it is provided that checks received by the defendant might be forwarded for collection to the drawee bank and an exchange draft accepted therefor and the checks released to the drawee bank, all of which the defendant pleads in defense of the plaintiff’s 'cause of action.”
This case was submitted upon an agreed statement of facts and certain evidence. The agreed statement of facts is as follows:
“The following statement is agreed upon as the facts upon which this case may be submitted. (In the event of an appeal by either party, only relevant portions of the publications and circulars attached as exhibits hereto will be carried into the record; such relevant portions will be indicated by underscoring those parts of such documents as are read in evidence by either party at the trial hereof).
“The plaintiff, the Bank of Minden and the First National Bank of' Shreveport, are domiciled in the district of the Federal Reserve Bank of Dallas. The First National Bank óf' Shreveport is a member bank of the Federal Reserve System, Dallas District. The bank of Minden is not a member.
“If forwarded for collection through a Federal Reserve Bank, the checks involved in this action would have been cleared through the Dallas Bank, unless, under regulations published to member and non-member banks, permission had beeu obtained from the Dallas Bank for direct forwarding through a Federal Reserve Bank of another district, in which latter event the proceeds would be. cleared through the Dallas Bank' and the collection made under terms and conditions'governing the clearance and collection of checks published by the Dallas bank.
“The Bank of' Taylor was in the district of the Federal Reserve Bank of St. Louis. The checks involved in-this action were sent direct to the Little Rock Branch of the Federal Reserve Bank of St. Louis, by permission obtained by tbe First National iBank of Shreveport from the Federal Reserve Bank of Dallas. The Federal Reserve Bank of St. Lonis and the Federal Reserve Bank of Dallas had published regulations governing the terms and conditions upon which either of them would collect checks or forward the same for collection. These regulations were known to the First National Bank of Shreveport, and no collection business was accepted by either of the Federal Reserve Banks, or any branch thereof, except subject to the conditions of such regulations. The officers of the Bank of Minden would testify that these regulations were unknown to them.
“A copy of the regulations in force by the St. Louis Bank, designated as circular No. 6, series of 1922, dated December 20, 1922, is attached and made a part of this agreement as Exhibit 1, and a copy of the regulations in force by the Dallas Bank, designated as circular No. 10, series of 1923, dated September 24, 1923, is attached and made a part of this agreement as Exhibit 2. A copy of the regulations adopted by the Federal Reserve Board, .series of 1920, is attached and made a part of this agreement as Exhibit 3.
“After the failure of the Bank of Taylor, defendant was authorized by the Federal Reserve Bank of Dallas to file claims with the receiver of the failed bank in behalf of its indorsers, which authorization included the sum claimed by Hicks Company, Ltd. A copy of this authorization, dated February 27,1924, is attached to this agreement as Exhibit 4. The items of $806.47 and $897.44, representing the checks which had been deposited for collection by the plaintiff with the Bank of Minden and forwarded by that bank to the First National Bank of Shreveport, a member bank of the Dallas Federal Reserve District.
“The First National Bank of Shreveport was authorized by the Bank of Minden to file a claim with the receiver of the failed bank as to the above two items. This was by letter dated February 8, 1924, as shown by letter of the First National Bank of Shreveport, dated September 17, 1925, attached hereto as Exhibit 5.
.• “Correspondence between Hicks Company, Ltd., and the defendant occurred as shown by letters dated May 12, 13, and 14, 1924, attached hereto as Exhibits 6, -7, and 8.
.“Direct forwarding of checks for collection from banks in the Dallas District to the Federal Reserve Bank of St. Louis was authorized by the Dallas Bank, April 20, 1922, as shown by letters attached hereto as Exhibits 9 and 10.
“A claim on behalf of its indorsers was filed with the receiver of the Bank of Taylor by the defendant, copy of which is attached as Exhibit 11, the claim of Hicks Company, Ltd., being covered by the two items shown on the. list attached to the claim in the respective amount of the checks.
“The. form of deposit ticket in use by Bank of Taylor and used by Hicks Company, Ltd., in depositing the two checks, is attached hereto as Exhibit 12.'
“The Bank of Taylor forwarded a bank draft drawn oh its balance at the Bankers’ Trust Company, Little Rock, which was not paid because of insufficient funds. The balance of the Bank of Taylor with the Bankers’ Trust Company on December 13, 1923, was $1,582.43. '
■ ‘ ‘ The defendant has made payments to the plaintiff out of proceeds it received from the Bank Commissioner in the liquidation of the assets of the Bank of Taylor, as follows:
September 3, 1925.$164.30
September 28, 1925..$154.41
February 27, 1926.$154.41
Total .I.i...:..$473.12
“The Bank of Taylor was the only bank at Taylor, Arkansas,- the nearest other bank being at Stamps, about ten miles distant from Taylor. The last published statement of the Bank of Taylor is exhibited herewith as Exhibit No.” ’ •
Numbers of exhibits were introduced, including circulars, letters and copies of regulations, wbicb we do not think necessary to set out here.
W. A. Hicks testified, in substance, as follows:
“He is vice president of the American Southern •Trust Company of Little Bock, which is engaged in general commercial banking business. His bank does business generally all over Arkansas, and a large amount of business over the United States; does a general commercial banking business, the collection of checks, drafts and items of that character. The capital of the bank is one million dollars, and a surplus of two hundred thousand dollars. The average deposit is about sixteen million dollars. Witness has been in the banking business in Little Bock for 15 years. Until its merger with certain other banks, this bank was the largest bank in Arkansas. I am familiar with the universal custom of Federal banks in this Federal Beserve District and in the United States in collecting checks drawn on out-of-town banks. The general custom is to send the checks direct to the paying banks. It is the custom to accept drafts drawn by the drawee bank on their correspondent, which is usually located in the town in which the sending bank is located. It is not the custom to demand currency from the drawee bank for checks being collected.'
“Cross-Examination. — This has been the custom since I have been in the banking business. It is not generally the custom to ascertain the financial condition of the bank before sending. If it should be brought to our direct attention that the bank is in.an insolvent condir tion, we would route our items to another bank. We never make any special investigation as to the condition of .a bank. We do not make any investigation as to the amount of the capital stock, or the size of the bank. Every State bank is required to publish a statement, and our bank receives these statements. We receive statements from .every bank in Arkansas. We make it our special business to get them, to keep in touch with the situation, and to find out whether or not the bank is getting along all right, if it is doing business with us in a borrowing way. The published statement of the bank does not indicate its condition as being solvent. A bank may be over-extended, and may be solvent and in good condition according to the published statement. It is very hard to tell from the published statement as to whether the bank should be considered as being in a shaky condition. The published statement might indicate that it is in an overextended condition,, but not that it was insolvent. If the bank showed that it had twelve and a half thousand dollars capital stock, seven and a half thousand surplus, $2,250 undivided profits, deposits of about $54,000, loans for more than $130,000, and loans and discounts and bills payable of $53,000, I would not call it in absolutely first-class condition, but I would not call it in an insolvent condition. It depends entirely upon the assets in the way of bills receivable. If the assets were worth dollar for dollar just like it stated, and absolutely good, it would not be insolvent, but if the assets were not worth that much money, which is usually the case, it would not show a very good report, but that is a thing that could be determined only by an intensive examination of its assets. In 1921 and 1922 our bank, known as the German National Bank, had deposits of $6,900,000, and we were borrowing seven and one-half million dollars, and our bills receivable were twelve million dollars. "We were not insolvent, but our statement indicated that we were rather in an over-extended condition. In the year 1923 many banks in Arkansas were still in an over-extended condition. We have had less bankruptcies of banks in Arkansas than in any State surrounding us over a period of five years, but I am not saying that this over-extended condition was a very good sign. As I stated before, it depends on the value of the assets of the bank, and the assets cannot be determined without an extensive examination by one who knows the value of their paper. It is possible that their cash may be low today and collections tomorrow bring up their resources. It does not indicate entirely that the bank is insolvent, but indicates that the bank is trying to take care of its community, and has gotten itself in that condition during hard times, and has not yet been able to recover. When we loan money to country banks we do not require individual indorsement of directors, but we require collateral — that is, the pledging of their bills receivable; in some cases we require individual indorsement.
“Redirect examination. — I examined the published statement stipulated in the agreed statement of facts in this case, and we see nothing in the statement that ivould keep us from sending items direct to the bank of Taylor for collection.
“Re-cross examination. — There is nothing in the statement to indicate that we would not send items for more than $4,000 direct to the bank. The statement shows that the entire capital stock was taken up in banking house, furniture and fixtures, banking house and other real estate was $12,000, the capital stock $12,500, the surplus $7,500, the undivided 'profits $2,234, making approximately $10,000 margin in their capital stock, surplus and undivided profits above their furniture and fixtures, banking house and other real estate. It is reasonable to expect, in analyzing a statement of this character, that the banking house, furniture and fixtures are of some value. That would have to be determined, of course, on a sale of the assets. Tn my way of analyzing this statement I would decrease that 50 per cent., banking house, furniture and fixtures, and other real estate worth approximately $6,000, which, added to the surplus, capital stock and undivided profits, would make a net amount of better than $6,000. We would not hesitate to send items direct to the Bank of Taylor for colléction. They did owe the $53,000 and the $130,000. Not knowing the value .of the paper, I cannot say whether, subtracting the loan $53,000 and the $130,000 from the loans and discounts, the usual amount of bad paper, whether that would leave the bank insolvent. I will say that this statement indicated that the bank was in very extended condition, but' the over-extended condition does not indicate insolvency. It might be insolvent and it might not- — that depends entirely on its assets.”
F. A. Coe testified, in substance, as follows:
“I am manager of the Little Rock Clearing House Association, which is an association of the banks of Little Rock for making settlements on Little Rock checks, and in addition we run a country department for the collection of so'me out-of-town checks. I have been secretary of this association since August last year. I was with the Little Rock branch of the Federal Reserve Bank of St. Louis since January 1, 1919, until August 1, 1923. I am acquainted, with the universal custom of blanks handling checks drawn on out-of-town banks for collection. I understand the universal custom to be as stated by Mr. Hicks, whose testimony I have heard.
‘ ‘ Cross-examination. — I was assistant cashier of the Federal Reserve Bank at this place when the items in question were sent to the Bank of Taylor. Mr. A. F. Bailey was in charge, lie is not here. It is the universal custom to send checks to these country banks without making investigation'.of their financial condition. The Bank of Taylor is not a member of the Federal Reserve Bank or the Federal Reserve System: It was the custom of the Federal Reserve Bank to send these items to nonmember banks without making any investigation as to their financial standing.
“Redirect-examination. — It is also the custom of the Little Rock Clearing House Association to do the same thing. This is a commercial custom which is the outgrowth of business conditions.”
The above was. all the evidence introduced, and. the court, after hearing the evidence, found the law and facts in favor of the defendant, and rendered judgment accordingly. The plaintiff saved its exceptions, filed its motion for a new trial, which was by the court overruled, prayed an appeal to the Supreme Court, which was granted..
The appellant’s contention is that it has a right to sue the Federal Reserve Bank, and that it is not bound by the regulations of the Federal Reserve Bank. Appellant alleges that the Federal Reserve Bank was negligent in accepting the draft of the Bank of Taylor, and that because of that negligence it is liable in this case.
The Bank of Taylor, to whom the checks were sent, was the payee bank, and this court had, prior to' the act of the General Assembly of 1921, held that it was negligence to send a check for collection to the payee bank. But, after the passage of that act, this court held that that act changed the rule, and, in the decision eonstruing the act of the Legislature, the court said that there are two conflicting lines of decisions, one originating in New York and the other in Massachusetts. Under the first rule a bank was responsible for all of the correspondent banks through whose hands the check passed for collection, unless there was an express contract to the contrary between the customer and the initial bank, and the other rule holding that the correspondent banks were agents of the customer, and the initial bank is not responsible for their negligence.
The act of the Legislature of 1921 is set out in full in the case of Farmers’ and Merchants’ Bank v. Ray, 170 Ark. 293, 280 S. W. 984. The court in that case said: “The evidence in this case was sufficient to warrant the jury in, finding that appellant wias not guilty of any negligence in the selection of its correspondents and. that it was not negligent itself in forwarding the check for collection. ’ ’
The case relied on chiefly by appellant is the case of Federal Reserve Bank v. Malloy, 264 U. S. 160, 44 S. Ct. 296, 68 L. ed. 617, 31 A. L. R., 1261. That case not only announces the two rules, the New York rule and the Massachusetts rule, but the case annotated, and many authorities are collected. Among other things it-announces as one of the reasons for its decision, that the checks were delivered to a bank in Florida for collection, and stated that the relation of the payee to the initial bank'of deposit was controlled by the Florida statute, with respect to which it must be presumed they dealt with each other, and that this statute had the effect of importing the Massachusetts rule into the contract, with the result that the initial bank had implied authority to intrust the collection of the check to a subagent and the subagent in turn to another, and the risk of any default or negligence on their part rested on. the owners.
In that case it was urged that the acceptance of the drawee’s draft instead of money was justified by custom. And the United States Supreme Court said, with reference to the custom:
“The business of check-collecting is handled by the Federal Reserve Bank in a way very similar to that in which it is handled ¡by collecting banks throughout the country. When one bank receives checks on another in a distant city, it usually sends them to the bank on which they are drawn, or to some other bank in that city, and receives settlement by means of an exchange draft drawn by the bank to which the checks are sent upon some one of its correspondents. When checks are sent with the expectation that the bank receiving them will remit at once, we call it sending for collection and return. When this is done, the bank upon which the checks are drawn is expected to cancel the checks and charge them to the accounts of the drawers, and to remit by means of its exchange draft, or by a shipment of currency. An exchange draft is used more frequently than a shipment of currency. ’ ’ -
_ The court then said, after quoting the, above evidence :
“It thus appears that the custom, if otherwise established, does not fix a definite and uniform method of remittance. When checks are sent for collection and return, the bank is expected to cancel the checks and charge them to the account of the drawers, and remit by means of its exchange draft, or by shipment of currency, the former being used more frequently than the latter. Whether the choice of methods is at the election of the drawee bank or the collecting bank does not appear.”
The court then stated that the custom was not known to plaintiff, and, all other reasons aside, by its uncertainty and lack of uniformity, it furnishes no definite standard by which the terms of the implied consent sought to be established thereby can be determined. The court, continuing, said:
‘ ‘ It furnishes no rule by which it can be ascertained when an exchange draft shall be remitted and when currency shall be required, or who is to exercise the right of election. A custom to p.ay 2 pence in'lieu of tithes is good; but to pay sometimes 2 pence, and sometimes 3 pence, as the occupier of the land pleases, is bad for uncertainty. * * * A custom to do a thing in either one or the other of two modes, as the person relying upon it may choose, can furnish no basis for an implication that the person sought to be bound by it had in mind one mode rather than the other.” Federal Reserve Bank v. Malloy, 264 U. S. 160, 44 S. Ct. 296, 68 L. ed. 617, 31 A. L. R., 1261.
It will be observed that the testimony in that case .showed the custom to be to send either a draft or cash. But the testimony in this case shows that it is the universal custom to send the checks direct to the payee banks, and that it was the custom to accept drafts drawn by the drawee bank on their correspondent, which is usually in the town in which the sending bank is located. It is not the custom to demand currency from the drawee bank for the checks being collected.
The above was the testimony of Mr. W. A. Hicks, vice president of the American Southern Trust Company, and Mr. F. A. Coe testified that he was the manager of the Little Rock Clearing House Association, and acquainted with the universal custom of banks handling checks drawn on out-of-town banks for collection, and he understood the universal custom to be as stated by Mr. Hicks, whose testimony he had heard.
The difference between the case relied on by appellant and the case at bar is, as to custom, that, in the case of Federal Reserve Bank v. Malloy, supra, the testimony showed the custom was to receive either money or drafts, one or the other. The testimony in this case shows that the custom was to receive drafts and not money, so there was' no uncertainty aibout it.
It is contended that the appellee was negligent in sending to the payee hank and negligent in receiving a draft instead of money. But the allegation in the complaint is that it was negligent in not requiring the Bank of Taylor to pay the said checks in money, and in accepting in payment a draft drawn on the Bankers’ Trust Company. This is the only act of negligence alleged.
As we have already said, the statute itself authorized the appellee to send the check to the Bank of Taylor, and hence this could not be negligence, and the appellant, in its complaint, alleges that the appellee received the checks, transmitted them to the Bank of Taylor, Taylor, Arkansas, and that the Bank of Taylor received the checks, stamped them paid, and charged them to the account of Dickens & Brown, and that on the same day the said Bank of "Taylor transmitted to the defendant its draft on the Bankers’ Trust Company of Little Rock, and that the defendant, appellee here, immediately presented said checks to the Bankers’ Trust Company.
According to the allegations in the complaint and the proof in the case, the appellee was not negligent in forwarding the check for collection, nor was it guilty of any negligence in any- other way. And, under the rule announced by this court since the act of 1921, the Federal Reserve Bank, the appellee here, was not negligent. See Bank of Hunter v. Gros, 171 Ark. 859, 268 S. W. 1032; Rainwater, Bank Commissioner, v. Federal Reserve Bank of St. Louis, 172 Ark. 631, 290 S. W. 69; Federal Land Bank of St. Louis v. Goodman, 173 Ark. 489, 292 S. W. 659; Bank of Keo v. Bank of Cabot, 173 Ark. 1008, 294 S. W. 49.
In the view that we have taken of this case, it is unnecessary to discuss the other questions mentioned in the briefs of counsel. We have reached the conclusion that the appellee was not guilty of any negligence, and the case must therefore be affirmed. | [
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Mehaeey, J.
This is a suit by the State of Arkansas against the bridge company to collect a franchise tax from the bridge company. The bridge company, a corporation organized under the laws of the State of Tennessee, was authorized by act of Congress, approved July 20,1912, to construct, maintain and operate a bridge and all approaches thereto across the Mississippi River at Memphis, Tennessee, in accordance with the provision of the act entitled ‘‘An act to regulate the construction of bridges over navigable waters,” approved March 23, 1906. The act of July 20 was amended by act of Congress of August 23, 1912, but the amendment to the act is not important, we think, in determining whether or not the bridge company is liable for the franchise tax sued for herein.
The complaint alleged that the bridge company, though a foreign corporation, organized under the laws of Tennessee, was doing business for profit in the State of Arkansas, and has a capital stock of $1,260,000 actually engaged in business in Arkansas, and it is also alleged in the complaint that the Arkansas Tax Commission had assessed the defendant with a one-tenth of 1 per cent, tax on that amount of its capital stock operating and doing-business in Arkansas, for the privilege of exercising- its franchise in the State of Arkansas. ■
The defendant alleged that it received its franchise from Tennessee and not from Arkansas, and that therefore the State of Arkansas had no right to impose a franchise tax unless it was doing business within the State of Arkansas of such a character that the State could impose and collect a tax for that privilege. It alleged that the sole business in which it was engaged was the maintenance, ownership and operation of- an interstate bridge across the Mississippi River, one end and the approaches thereof being located on the Tennessee shore and the other end and the approaches thereto b.eing located on the Arkansas shore, and that said bridge was leased to three interstate carriers, which three owned the; entire capital stock of the bridge company and paid, as a rental for the use of the bridge, only such sum as was necessary to take care of maintenance, taxes and other fixed charges, and that therefore the defendant was not engaged in any sort of business in the State of Arkansas. That, if engaged in business, it was engaged exclusively in interstate commerce, or in maintaining an instrumentality of such commerce. That it did not engage in any sort, of intrastate commerce in Arkansas. That it constructed the bridge under special license and franchise óf the Congress of the United States, and that for Arkansas to impose a franchise tax was á tax upon this Federal franchise, as it had no franchise from the State, of Arkansas, and needed none. That the franchise tax imposed by the State of Arkansas was necessarily a tax upon interstate commerce, as the defendant whs not in any manner, shape or form engaged in intrastate' commerce within the State of Arkansas.
There was no proof taken, but the parties entered into a stipulation which provided, among other things, that, if the bridge , company should be held liable for the 1918 tax, the taxes for subsequent years would be controlled by the décree of the court, and therefore, upon an adverse decree being entered against the bridge company, it included taxes for the year 1918 and the taxes for all subsequent years down to the date of the decree, making a total of $17,408.49. '
The Pulaski Chancery. Court entered a decree on January 21, 1927, holding the bridge' company liable for the franchise tax, and gave judgment for the above amount. Prom this decree the bridge-company prayed an appeal, which was granted. ,, . ¡
Appellant’s first contention is that it is engaged in no sort of business in the State of Arkansas. The- stipulation, however, entered into between the parties provides that the bridge company is a corporation chartered, organized and existing under the laws of the State of Tennessee, authorized tó do business- in thé State of Arkansas for the-purpose of constructing, owning, controlling and maintáining a railway bridge, approaches and terminals over and- across the Mississippi River. The stipulation further provides that, after filing the proper papers and making the proper: showing pursuant to the statutes of the State of Arkansas, it was admitted into the State of Arkansas on May 27, 1927, and since that time has been authorized to do business in the State of Arkansas. On that date Thomas S. Buzbee.,;was appointed as agent for service, pursuant to the; statutes of Arkansas, and said appointment has not been canceled, and said bridge company paid its franchise tax .for the year 1917. It is also stipulated that 66 per cent, of the entire structure is in Arkansas and the track .and approaches of the said.bridge in Arkansas are' 4.39 miles. It still has authority -to do business- in the State of Arkansas. While the bridge company does not use the bridge' itself, but leases it to others, it is leasing it, maintaining it, keeping it and its approaches repaired,, and constantly employing labor and capital in' thé State of Arkansas, and in this way is-doing business in Arkansas.
This court has -repeatedly-held that, in case of a foreign corporation, the-tax or license is paid for exercising its corporate powers within the State. The bridge company in this case has the privilege of exercising its corporate powers in this State, and is daily- engaged in business in repairing-and maintaining the bridge and aimroaches. ' ■ ■ . . ■ . •
But this court has recently held that the tax is not based upon the doing of business in the State, but the right or privilege of doing business in the State. State ex rel. Attorney General v. Chicago Land & Timber Co., 173 Ark. 234, 292 S. W. 98. The above case discusses the constitutional questions and the statutes, and collects many of the authorities which are applicable in this case. It was also stated in the case last referred to:
“It will thus be seen that a foreign corporation is required, ‘for the privilege of exercising its franchise in this State,’ to pay a franchise tax of one-tenth of 1 per cent, each year upon the proportion of the subscribed, issued and outstanding capital stock of the corporation represented by property owned and used in business transacted in this State.
“It is stated generally that, to render a foreign corporation subject to the jurisdiction of a State, the business done by the company in the State must be of such a character and extent as to warrant the inference that the company has subjected itself to the jurisdiction and laws of the State. There is no precise test of the nature or extent of the business that must be done. All that is requisite is that enough be done to enable the court to say that the corporation is present in the State. The business which a foreign corporation is conducting in the State, in order to give the courts of the State jurisdiction over it by proper service of process, must be a part of the business for which it was organized. Some courts take the view that it is essential that the foreign corporation transact a substantial part of its ordinary business in the State. Other courts, while recognizing that the transaction of an ordinary portion of the business of the corporation by authorized agents in the State is sufficient to render the corporation subject to the jurisdiction of the courts of the State, hold that it is not necessary that the transactions in the State of the foreign corporation shall be the performance of those particular acts which constitute the characteristic feature of the business for which it was organized, or that the chief or principal part of the business of the corporation shall be transacted in the State. A continuous course of business, as distinguished from a singie transaction, conducted by authorized agents within the State, constitutes a doing of business so that the corporation may be fairly said to be present in the State and amenable to the process of the courts.” 14A C. J. 1372 et seq.
The section of the law above quoted is sustained by authorities, many of which are cited under the section. We think there is no question but what the bridge company is doing business in the State .of Arkansas, and not only that, but the bridge company itself recognized the fact that it must do business in Arkansas and, for that reason, complied with the laws of the State of Arkansas entitling it to do business in this State.
Appellant’s next contention is that, if engaged in business in Arkansas, it is engaged solely in interstate commerce or solely in the maintenance, ownership and operation of an instrumentality of such commerce. According to the stipulation and agreements in this case, the bridge company is not only not engaged in interstate commerce, but it is not engaged in any kind of commerce. It does not operate the bridge and does not carry either passengers or goods. In fact, it does nothing in the way of commerce, either intrastate or interstate. It owns, leases, repairs and maintains the bridge across the Mississippi Elver, and, while the bridge may be an instrumentality of interstate commerce so far as the carriers are concerned, the bridge company has nothing whatever to do with carrying either freight or passengers, and therefore does not use the bridge as an instrumentality for interstate commerce or any other kind of commerce.
Appellant calls attention to the case of Norfolk & Western Ry. Co. v. Penn., 136 U. S. 115, 10 S. Ct. 958, 34 L. ed. 394, and states that this is a conclusive case. The difference between that case and this is that the Norfolk & Western Bailway Company was actually engaged in interstate commerce itself, and, for that reason, the court held that the tax on keeping an office in Philadelphia was a tax on interstate commerce. The- railway company in that cáse was eng-aged in commerce exclusively, was a common carrier, and engaged in interstate commerce, and we think that the case has no application here at all, and the same may he said of other cases cited with reference to interstate commerce.' .
As we have said, the bridge company merely owns the' bridge,- leases it and maintains it. If a company owned a-boat or a number of boats,- and-leased them to a carrier- or to any person or corporation who used the boat in- carrying persons or freight in interstate commerce, the boat would be used in interstate commerce, the carrier-would be engaged in interstate commerce, but the owner of the boat would have no connection whatever with interstate commerce. And we therefore think that the bridge company in this' case is not engaged in interstate commerce,, and it is not engaged in the operation of an instrumentality used in interstate commerce.
Appellant’s next contention is that, if the maintenance of á bridge in Arkansas is carrying on business, it is - interstate commerce.' We think that what we have ■already said answers this contention and that the authorities cited by appellant ‘in support of this contention have no application. Of-course, if the bridge company was á carrier, then whatever was done by the carrier with reference to the bridge, in relation to its business as carrier, would be in interstate commerce, but we have no’ such casé here. - ■
The appellant next contends that'the tax is a tax on a Federal: franchise. The'bridge company received its franchise from the State of Tennessee and riot from the Federal Congress, or, if the authority to build the bridge granted by Congress can be called a franchise at all, it is not ¡a. primary franchise, but a secondary. The act granting authority 'to build the bridge expressly states that the bridge : company -is á Tennessee corporation, :and grants the authority to build the bridg'e to a corporation already 'created under the laws of the State of Tennessee. The same requirement would have been necessary for any person who desired to build a bridge across a navigable stream, whether the stream was between two states or wholly within one State. The grant of authority is necessary in all cases where a bridge is built across a navigable stream, and it is just as necessary where there is no interstate commerce passing over the bridge as where it is between two states and all the commerce going over it is interstate. It is merely permission and authority necessary to be granted.because the stream is navigable, and the tax here is not in any sense a tax on a Federal franchise and is not a burden on interstate commerce. The bridge company is- not engaged in commerce. :
The act granting authority provides as follows:
“Be it enacted by the Senate and House of Bep-resentatives of the United States of America in Congress assembled, that the Arkansas & ■ Memphis Bailway •Bridge & Terminal Company, a corporation organized under the laws of the State of Tennessee, its successors and assigns, be and are hereby authorized to construct, maintain and operate a bridge and all . approaches thereto, across the Mississippi Biver at Memphis, Tennessee, ’ ’ etc.
The word ‘ ‘ authorized’ ’. used in-the- act evidently means- clothed with authority, warrant or legal power. It gives a right to the bridge company to act, empowers it to build the bridge, and does not mean that it is required to build it — it is simply permissive. ■
We take it that no one would contend that, even after the act was passed and the authority granted, there was any obligation on the bridge company to build the bridge. It could build it or not, as it wished, but, if it desired to build a bridge, it would have the authority to do so.
The appellant has not only complied' with the laws of Arkansas authorizing it to do business in this .State, but it has never withdrawn from the State in the manner provided by law. Whether its failure to do so is because it would thereby subject itself to the penalties for doing business in the State without complying with the law, or for any other reason, is immaterial. The fact is that it is authorized upon its own application to do business in Arkansas and is continuing to do business under that authority.
The decree of the chancery court is correct, and is therefore affirmed. | [
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Hart, C. J.
Jesse Hill prosecutes this appeal to reverse a judgment of conviction against him for selling intoxicating liquors in violation of our statute.
Two witnesses testified for the State. According to the testimony 'of one of them, he gave the defendant $15 for a gallon and one-half of whiskey, called “old white mule,” in Clark County, Arkansas, in July, 1926. Another witness for the State testified that, in 1926, he bought a quart of intoxicating liquor from the defendant at his home in Clark County, Arkansas, and gave him two dollars for it. It is true that the defendant adduced evidence at the trial tending to show that he did not sell any intoxicating liquor at any time or place, hut the jury was the judge of the credibility of the witnesses, and the evidence for the State, if believed by the jury, was legally sufficient to warrant the jury in returning a verdict of guilty. Corley v. State, 162 Ark. 178, 257 S. W. 750.
The next assignment of error is that the court erred in allowing the State to ask and prove by the defendant, on his cross-examination, that he had been convicted of illegally manufacturing intoxicating liquors. The defendant was permitted to say that, although convicted, he was innocent; and the court told the jury that his cross-examination in this respect could only be considered by them as affecting the credibility of the defendant as a witness. There was no error in the action and ruling of the court. Canada v. State, 169 Ark. 221, 275 S. W. 327.
The next assignment of error is that the court erred in overruling defendant’s motion to quash the indictment. The motion alleges that the indictment in the case at bar was for the same offense as charged in another indictment against the defendant in the same court. The record does not contain anything to show whether or not this is true, and, in the absence of such showing, we cannot consider this assignment of error. If a judgment could be reversed upon mere allegations of error in motions made, without proof to sustain them in the record, no judgment could escape reversal if the defendant or his counsel had ingenuity enough to prepare and file motions the allegations of which, if true, would he grounds for reversal.
We find no reversible error in the record, and the judgment will therefore be affirmed. | [
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Wood, J.
This is an action by the appellee against the appellant to recover damages for the alleged loss of a case of cotton- fabrics consisting of M. F. C. gingham of the value of $498.22. The appellee alleged that on the 24th of June, 1920, Marshall Field & Company delivered to the Danville & Western Bailway Company at Spray, N. C., to he shipped to the plaintiff at Magnolia, Arkansas, the case of fabrics mentioned, and that the Dan-ville & Western Bailway Company, through its connecting lines, delivered the same to the appellant at Chestnut, Louisiana, to he shipped to the appellee at Magnolia, Arkansas; that the appellant had failed to deliver the same to the appellee, to its damage in the sum above stated, for which the appellee prayed judgment.
The appellant, in its answer, among other things admitted that the said shipment and case of goods was received by defendants, and alleged that same was promptly delivered to plaintiff at Magnolia, Arkansas.
The testimony establishes the following facts: On the order of the appellee there was shipped from Marshall Field & Company, on June 23, 1920, from Spray, N. C., a case of cotton fabrics alleged to contain M. F. C. gingham of the value of $498.22, over the Danville & "Western Rail: road, the initial carrier, and over the appellant, the delivering carrier. The package or pase was numbered 198,139. The case was covered by waybill numbered 2041, dated June 24, 1920, showing shipment from Spray, N. C., to Chestnut, where it was received by the agent of the connecting carrier and by him delivered at that point to the appellant, and from there to Magnolia, Arkansas, under waybill numbered 178, 'dated July 28, 1920. The last waybill covered the waybill No. 2041, dated June 24, 1920, from Spray, N. C. On August 6, 1920, a case numbered 198,139, covered by waybill No. 178, was delivered by the appellant’s agent at Magnolia, Arkansas, to George W. Monroe, drayman and agent of the appellee.
Witness J. Y. Orrell testified, in substance, that he was the overseer of the packing and shipping department of the Carolina Cotton'& Woolen Mills at Spray, N. C., and shipping agent of'Marshall Field & Company; that case No. 198,139 was packed on May 14, 1920, containing 30 pieces of M.. F. C. gingham of the value of $498.22; that this cáse was delivered to Danville & Western Railway Company about June 24,1920, for shipment to the appellee at Magnolia, Arkansas. It was further shown that the M. F. C. gingham was packed in a wooden box numbered 198,139; that the box was constructed of tongue-and-groove plank, 5/8 of an inch thick, securely nailed together and wrapped with Avire at both ends. It atos shoAvn by the shipping- clerk and the billing clerk of the Carolina Cotton & Woolen Mills at Spray, N. C., that they did not receive any information .from the appellee of a failure to receive the case of gingham packed and shipped as indicated. It Avas shown that the initial carrier received written notice on Noa^ember 13,1920, that “one case of M. F. C. gingham numbered 198,139, consigned to the appellee, had not been delivered. ’ ’
J. P. Machen testified, in substance, OA^er the objection of the appellant, that his company never received the goods; that he notified appellant’s local agent of the matter, and the agent stated’ that the shipment had not arrived, and that he had traced the same, but coald not find it, and that the goods had never been delivered. Witness stated that Mooney made an affidavit to this effect, which he forwarded to Marshall Field & Company’s claim department. He was present when the affidavit was signed, and the station agent stated in his presence that the shipment had never reached the railroad station at Magnolia, and that the shipment had never been delivered to Gr. W. Monroe, the drayman and agent of the appellee. He stated that, if the case No.-198,139, involved in this suit, -contained M. F. C. gingham, the Machen Company did not receive it. It received no goods which it did not have an'invoice to cover.
W. E. Walker, another member of the - firm of Mache» & Company, testified to the same effect. He also stated, without objection, that the local agent told him that the case in controversy had never arrived at Magnolia, and that the goods had never been delivered. Another witness, who was an employee of Machen & Company at the time, stated that the M. F. C. gingham had never been delivered.
The cashier of the appellant testified to the effect that the appellant’s records showed that the waybill No. 178 was received at Magnolia on the 31st of July, 1920; that Gr. W. Monroe called for the freight of appel-lee, and that on the 6th or 8th of August, 1920, he delivered to Monroe the three pieces of freight called for by the waybill No. 178 and collected the freight on the shipment and gave Monroe the expense bill covered by the waybill, and that Monroó signed the receipt for the goods, took the freight, and paid the freight bill from Spray, N. C., to Magnolia, Arkansas. On cross-examination he stated that all he knew about the matter was what his records showed, and that these records were correct. He did not deliver the goods. The warehouseman did that. He did not know whether the goods were délivered to Monroe or not. He only knew that Monroe paid him the money and got the receipts. Witness could not tes tify that the goods arrived at the station. He did not check them in or see them checked — he conld not swear that the three pieces came in, and did not know that either one of them was numbered 198,139.
The court, at the instance of the appellee, instructed the jury, in effect, that the burden was on the appellee to prove that the goods in controversy had been delivered 'to the appellant by its connecting carrier, and that their verdict should be in favor of the appellee unless the appellant delivered the property to the appellee. Also there were instructions to the effect that a receipted freight bill was only prima facie evidence of the delivery of the freight, and that, notwithstanding this receipted freight bill for the goods in controversy, they should find for the appellee if the appellant failed to deliver the goods to the appellee or its agent.
At the instance of the appellant the court, in effect, told the jury that, if they found from a preponderance of the evidence that the appellant delivered a case of goods No. 198,139 at Magnolia, Arkansas, to G. W. Monroe, drayman for Machen & Company, their verdict should be for the appellant, although the case did not contain the goods covered by the invoice of Marshall Field & Company.
The court further instructed the jury that, before the appellee could recover in the case, it must prove by a preponderance of the evidence that the gingham described in the complaint was shipped as alleged, and that the value of the shipment was $498.22, and that it was received by the appellant, and that appellant failed to deliver the gingham to the appellee.
The jury returned a verdict in favor of. the appel-lee, and from a judgment in appellee’s favor is this appeal.
There was testimony from which the jury might have found that a case numbered 198,139, containing 30 pieces of M. F. C. gingham, was delivered to the initial carrier at Spray, N. C., and, through the connecting carrier, was delivered to the appellant for shipment to the appellee at Magnolia, Arkansas. In fact, the appellant admitted that the case of cotton goods alleged was received by it for shipment to the appellee. The appellant contends, however, that the undisputed testimony shows that this same case was delivered by it to Monroe, the drayman, the consignee’s agent, at Magnolia, Arkansas. The material testimony on this disputed issue of fact is set forth above, and it speaks for itself. It was an issue' of fact for the jury, under the evidence, as to whether or not the appellant delivered the case of goods in controversy at Magnolia to the appellee’s agent, Monroe. The appellant contends that the undisputed testimony shows that the case of goods in controversy was delivered to the appellee’s agent, Monroe.
Appellant’s cashier, on his direct examination, testified that his records, which he kept and which were correct, showed that he delivered to Monroe the three pieces of freight covered by waybill No. 178, which includes the case in controversy, on August 6' or 8, 1920; that he paid the freight thereon and signed the receipts for the goods. On cross-examination, however, the witness stated, among other things, that he- could not remember if it were not for the figures on Iris record. He did not remember a thing on earth about the goods. His records showed that Monroe got three cases of something, but witness did not know what they were and did not remember that one of them was ease No. 198,139. That his records did not show that case No. 198,139 was delivered to Machen & Company,. and,»so far as he was concerned, he knew nothing about it except as shown by the records. On cross-examination he stated that he did not deliver anything but the expense bill; that he did not deliver the goods; that that was the duty of the warehouseman, and witness did not know whether they were delivered to Monroe or not. He stated that he did not know whether Monroe got the goods or not, or what he did with them. Witness only knew that he got the money and the receipt. He could not swear that the three pieces came into the station. He did not see them checked in there. Witness did not check them himself and did not see them checked in. He was only testifying from the records.
On the other hand, the members of the firm of the appellee and one of its employees who was working for it at the time stated that the goods in controversy 'were not received. Two of these witnesses stated that the station agent told them, on several occasions, that the goods had never arrived in Magnolia. While appellant’s cashier testified that his records showed that the goods were delivered to appellee’s agent, Monroe, and that these records were correct, his testimony further showed that he did not know whether the goods were actually delivered to Monroe or not, and that it was the duty of the warehouseman of appellant to deliver the goods. The warehouseman of the appellant was not introduced.
The issue as to whether the case numbered 198,139 was delivered to appellee’s agent, Monroe, was submitted to the jury under correct instructions. Appellant contends that the words “goods in controversy” used in appellee’s prayers for instructions' were misleading. But only a general objection was made to the instructions, and it occurs to us that this particular phraseology could not have misled the jury, because the testimony shows that the goods in controversy were designated by a case bearing the number 198,139. If this box, so designated, was delivered to the appellee or appellee’s agent, then appellant was not liable, but, on the other hand, if a box bearing this number was not delivered to the appellee or its agent, the appellant was liable.
The appellant further contends that the appellee’s" prayers for instruction Nos. 2 and 3 were' incorrect because they were abstract in telling the jury, in effect, that, notwithstanding they might find that the plaintiff or plaintiff’s agent receipted a freight bill showing delivery of the goods in controversy, the jury nevertheless might find for the appellee if they further found that the appellant did not deliver the case of goods in controversy. These instructions, in effect, hut told the jury that the receipted freight hill was prima■ facie evidence that the' case of goods in controversy had been delivered to the appellee, and that it ivas the province of the jury, notwithstanding the receipted freight bill, to determine whether or not the goods in controversy had actually been delivered to the appellee or to its agent. In other words, the issue at last was whether or not the case of goods in controversy had been delivered to the appellee or to its agent, and, in determining this issue, the jury should take into consideration the receipted freight bill in connection with the other testimony in the record bearing on that issue.
When these instructions are considered, as they must be, in connection with appellant’s prayers for instructions which were granted, we are convinced that the issues of fact in the case were submitted to the jury under correct instructions.
The appellant contends that the court erred in permitting the witness Machen to testify that Mooney, the station agent of the appellant at Magnolia, Arkansas, said, and made affidavit, in the presence of Machen, that the shipment in controversy had never reached the appellant’s station at Magnolia, and that the goods were not delivered to the appellee or its agent. The reason urged for the objection to the admission of this testimony is that there was no evidence in the record to show that a station agent had any control over the matter of receiving or delivering freight, and that, in the absence of testimony showing that he had such authority, his statement and declaration to Machen was inadmissible.
In Daniel v. Doyle, 135 Ark. 547-550, 204 S. W. 210, 211, we said:
“In its broad sense and in its common signification, a station is a place at which both freight and passengers are received for transportation or are delivered after transportation, and includes a flag station.” See also St. L. etc., Ry. Co. v. Neal, 66 Ark. 543, 51 S. W. 1060.
Since Mooney was tbe station agent at the town of Magnolia, it was within the, scope of his employment and authority to receive' and deliver freight. “It has been held that a shipper may assume, in the absence of anything to the contrary, that a railroad station agent has authority to contract with reference to the acceptance and carriage of freight.” 4 Elliott on Railroads, p. 482, § 2118, and numerous cases cited in. note.
Wood, in his work on Railroads, says:
“Indeed, from necessity, and from the usual course of business, these agents must, in the absence of notice to the public of any special limitations upon their authority, be treated as the representatives of the corporation at their respective stations, with full authority to bind it by general or special contracts relative to the transportation of freights over the road. Being authorized to receive, receipt for, and bill goods for shipment, the public has a right to presume that they have authority to bind the corporation by contracts relating thereto.” I Wood on-Railroads, page 506.
• The statements made by the station agent, Mooney, to Machen, to which the appellant objected, were strictly within the line of his duty and the scope of his authority, and the court did not err in admitting the testimony as to these statements. I Elliott on Railroads, § 254.
There is no reversible erroi’, and the judgment is therefore affirmed. | [
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Mehaeet, J.
Wharf Improvement District No. 1 of the City of Helena is an improvement district created by ordinance upon the petition of property .owners-in the city of Helena, and was organized “for the purpose of constructing a wharf on the Mississippi River and the necessary approaches thereto; said wharf -to consist of adequate mooring- places composed of stone, concrete, wood or steel, located approximately at the foot of Arkansas Street, on the Mississippi River, in the city of Helena; and a loading barge of adequate size, to be moored at that point; the approaches thereto, and storage places and other necessary equipment; to construct a wharf-house containing-two floors, a railroad track on an incline from said wharf-house due east along the-south side of Arkansas Street from the said wharf-house to the .said loading barge and wharf on the Mississippi River; also a roadway to be constructed upon Arkansas Street from the west -line of Natchez Street to the east line of said wharf-house; also ■ a railroad track from Elm Street to said wharf-house; together with all necessary cars, cables, hoists and other freight-handling and loading machinery necessary to make sáid wharf and its appurtenances complete.”
The improvement district so created was held to be valid, in Solomon v. Wharf Improvement Dist. No. 1, 145 Ark. 126, 223 S. W. 385.
The Arkansas Legislature, in 1927, passed Act No. 61, which is as follows:
‘‘Section 1. That boards of improvement in municipal improvement districts now existing or hereafter organized in this State for the purpose of constructing-wharves for the transfer and interchange of river and rail freight are hereby charged with the duty to operate, manage and control the said improvements. Such boards shall also have the power to lease the improvements, in whole or in part, or otherwise contract for the operation of such improvement, upon such terms as may be deemed by them advisable, and have power to lease from others such equipment as, in the judgment of said board, may be deemed advisable. Such board shall collect moneys due such improvement districts for tolls, wharfage, storage, elevation, rentals and all moneys other than moneys received from collection of the assessment of benefits, and shall keep an accurate and separate account thereof. Such board of improvement shall have control of the disbursement of such moneys, and may therefrom pay costs of operation, maintenance, repairs, replacements, renewals, improvements, depreciation or bonded or other indebtedness, in such times and in such manner as the said board may deem to the best interests of the owners of real property in the district.
“Section 2. In addition to the powers now vested by law in boards of improvement, boards of improvement of improvement districts described in § 1 of this act shall have power to construct and to borrow money with which to construct new and additional improvements necessary, convenient or required for transfer or interchange of any and all commodities. Such board of improvement may issue the notes, bonds or other evidences of indebtedness of such district to evidence such indebtedness, which obligations shall be negotiable, although payable only from a certain fund, and may pledge net revenues arising from the operation of such hew and additional improvements, and mortgage snch new and additional improvements to secure the repayment of such borrowed money and interest thereon.
“Section 3. Boards of improvement of the class described in § 1 of this act shall have power to acquire, by lease or purchase, real estate heeded or convenient in the public service rendered by such improvement district; power to grant rights-of-way over any and all properties owned by such district, and power to grant landing rights to persons engaged in water transportation.
“ Section 4. No indebtedness, obligation or liability, or the interest thereon, created or incurred under the provisions of this act, shall at any time be secured or paid by or. from any special assessment upon or taxation against the real property of any such improvement district.
“Section 5. That all contracts heretofore made by any board of improvement of the class described in § 1 of this act, not in conflict with the terms of this act, be and the same are hereby confirmed, approved and ratified.'
“Section 6. If any clause or section of this act shall be held to be unconstitutional, it shall not invalidate the remainder thereof, but the balance of this act shall remain in full force and effect.
“Section 7. Agriculture and industry of the State will be aided and assisted by the purposes herein contained, and therefore an emergency is hereby declared to exist, and this act being necessary for the preservation of the public peace, health and safety, it shall take effect and be in force from and after its passage.”
The appellant, plaintiff below, brought this suit. attacking the validity of Act No. 61 for the following reasons:
(1) That under the Constitution of the State of Arkansas the Legislature is inhibited from delegating the powers undertaken to be delegated by said act to local improvement districts. (2) That the said act is and was unconstitutional in that it violates the funda mental and underlying principles of our form of Government. (3) That even under the provisions' of said act the defendants have no power or authority to enter into the several contracts hereinabove set out. (4) That the said contemplated improvement is not a public improvement, but is an improvement which is related solely in its operation and effect to private business and private interests. (5) That the operation of a grain elevator is not a public improvement but is, from its very nature, a private business. (6) That generally the making of said contracts is ultra vires, improper, and an invasion of public agencies into the field of private affairs.
“Plaintiff alleges that, unless enjoined by order of this honorable court, the defendants will execute the contracts aforesaid, or some of the same, whereby the rights of third persons might attach, to the injury of plaintiff’s rights.”
• We deem it unnecessary to set out the testimony taken in this case, because tlie attack made is on the validity of the act and the power of the Legislature to pass the act. And the appellant’s first contention is that this case is controlled by the decision in Lipscomb v. Lenon, 169 Ark. 610, 276 S. W. 367. That case construed the act passed by the Legislature in 1923 authorizing the formation of an improvement district for the 'building of an auditorium for public meetings, and, while the court stated that it would be a most desirable improvement, yet it 'was plainly for the benefit of the whole community, and that it could not and did not confer any peculiar or,special benefit upon the real estate assessed and taxed for its construction and maintenance.
Tliat act provided for the assessment of benefits and for the taxing of real estate, and it was held in that case that the act was void, and, among other- things,we said:
“Even if it could be said with any plausibility that the building ■ of an auditorium directly and specially benefited the real estate situated within the city of Little Bock, it would strain the wildest imagination to the breaking' point to conceive bow sncb an improvement would be of any direct or special benefit to the real estate situated in Fourche mountains or in Fourche bottoms or to any other real property lying in those country portions of the township included in the district — those beyond the limits of the city of Little Rock.”
It must be remembered that these lands were to be taxed for the purpose of securing money to build the auditorium, and taxed on the theory that these lands would be benefited. Of course it was perfectly plain that the lands mentioned by the court in that case could receive no benefit whatever from the building of an auditorium in' the city of Little Rock, and, since real estate can be taxed for local improvements only on the theory that the benefits to the land were equal to or greater than the tax required to be paid on the land, and since it was manifest that these lands could not be benefited at all, the court properly held that the lands not benefited could not be taxed for the purpose of making the improvement. It was also properly held that the improvement was a public improvement and did not benefit the lands sought to be taxed specially.
It is conceded that act No. 61 provides that no taxes shall be levied to pay for the grain elevator, but it is contended in legal principle that this is immaterial, the appellant contending that, if the Legislature has a right to create an improvement from revenues, then it also has the right to create one to be paid from taxation on real estate. The improvement district in this case was organized, and- this court has already held that it was valid.
Section 4 of act 61 provides: “No indebtedness, obligation or liability, or the interest thereon, created or incurred under the provisions of this act, shall at any time be secured or paid by or from any special assessment upon or taxation against the real property of any such improvement district.”
It will be seen that it‘is expressly provided in the act that no indebtedness, no obligation, no liability or Interest thereon, which may be created under the provi sions of this act, shall be paid from assessments or taxation on the real property. The act therefore is not void because of any tax or assessment on real property, and we know of no constitutional provision that would prohibit the Legislature from passing the act in question. It has been repeatedly held by this court that the Constitution is not a grant of powers, and that the Legislature may do anything not prohibited by the Constitution. This court has also many times held that all doubts as to the constitutionality of a statute must be resolved in favor of the statute.
It has been said by this court that, in determining whether an act is constitutional, we should look to see, not whether the power is given, but whether in expressed terms or by necessary implication it is forbidden. This court has said:
‘‘ Then, when we come to pass upon the constitutionality of an act of the Legislature, we must remember that a State Constitution is not a grant of enumerated powers. Its object is to outline the departments of the Glovernment and apportion its various powers among them. Having vested the lawmaking powers in the Legislature, it possesses that power in an absolute and unlimited degree, unless the restriction is found in the Constitution itself.” State v. Martin, 60 Ark. 343, 30 S. W. 421, 28 L. R. A. 153.
Again it has been said:
‘“ft is not to be 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 so doing by the Constitution, and the act assailed must be plainly at variance with the Constitution before the court will so declare.” McClure v. Topf & Wright, 112 Ark. 342, 166 S. W. 174.
The appellant has not called our attention to any particular provision of the Constitution which he claims is violated by the act and to no case holding that a similar act is violative' of the Constitution. And, unless there could be found some provision of the Constitution that either expressly or by implication prohibits the passage of an act like this one, then the Legislature had the power to pass the act, because, as has been said, the Constitution of the .State is not a grant or an enumeration of the powers vested in the legislative department, but is a limitation upon the exercise of such powers, and the Legislature can exercise all powers not expressly or by fair implication forbidden by the Constitution.
The only limitation contained in the Constitution with reference to improvement districts in cities and towns is as follows:
“Nothing in this Constitution shall be so construed as to prohibit the General Assembly from authorizing assessments on real property for local improvements in towns and cities, under such regulations as may be prescribed by law, to be based upon the consent of the majority in value of the property holders owning property adjoining the locality to be affected. But such assessments shall be ad valorem and uniform.”
It was necessary to comply with this provision of the Constitution in the organization of the district. This provision was complied with, and the act was held valid. The only thing this act seeks to do is to give the district, which is already formed, additional authority, but it does not in any way seek to tax the people, and we therefore think that the Legislature had the power to pass the act.
We deem it unnecessary to discuss all the authorities presented by appellee, but we have reached the conclusion that the act does not violate any provision of the Constitution, and the case is therefore affirmed. | [
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Wood, J.
Tlie appellant was convicted in the Miller Circuit Court on a valid indictment charging him with the murder of one Lawrence Harris “by striking and beating him, the said Lawrence Harris, with an instrument, the exact description of said instrument being unknown to the grand jury.’’
It is unnecessary to set forth the testimony in detail. It suffices to say there was testimony from which the jury might have found that the appellant acted too hastily in killing the deceased. Appellant killed the deceased on Sunday night. On the Saturday night preceding appellant was in a car across the street from where the deceased had a store. Supposing that a negro woman by the name of Ada Lee Clark (who, the testimony tended to prove, was the paramour of deceased) was in the car with the '¡appellant, the deceased went out to the car armed with a pistol, and asked whether Ada Lee Clark was in the oar, and, on learning that she was not, he abnsecl the appellant and the woman, and stated that if the woman had been in the ear he intended to kill her and any one else in the car. There was no one in the car with the appellant. Appellant said nothing. The following night the appellant, with three other parties, at the request of one of the parties, Tom Sims, drove by Ada Lee Clark’s home. Sims stated to appellant that he owed the Clark woman $1.50. Sims got ont of the car and went upon the porch of Ada Lee Clark’s house, and knocked at the front door. Another woman, living in the house with the Clark woman, answered, and told Tom Sims not to come in the house. She asked Sims who was in the car, and, upon being informed that the appellant was in the car, she told Sims to go back and tell the appellant to get away from there, as the deceased was in the kitchen talking to Ada Lee Clark. Sims left the house and went to the car, and, just as he got to the car, he heard a lick, and saw the deceased and appellant by the side of the car. Sims saw appellant strike deceased, and deceased fell." Sims helped the deceased to rise, and started with him to Ada Lee- Clark’s house. She met them at the front steps, and requested Sims to take the deceased to his store. The deceased beckoned Ada Lee Clark with his hand to come to him. She went to him, and she and Sims started down the sidewalk with the deceased toward his store, and at this time the deceased gave Ada Lee Clark a pistol. She then called another negro man and asked him to help Sims take the deceased to his store, and she went back to her home with the deceased’s pistol.
According to the testimony of the appellant, while he was in his car on the night of the fatal rencounter in front of Ada Lee Clark’s house, when Tom Sims was talking to the other woman at the front door of Ada Lee Clark’s house, the deceased left the kitchen and went out of a south door and came to the ear where appellant was sitting, and, as he got near the car, appellant recognized him, and saw that he was coming to the car with Ms band in his pocket. Appellant jumped out, and, as he did so, his foot struck something. Appellant picked it up — it was a piece of oak picket. Appellant said, “I don’t want you to pull that gun on me,” and hit the deceased on the head, and, when deceased raised his arm,. he hit him again. At that time Sims had arrived, and said to appellant, “Don’t do that — get in the car and get away,” so appellant got in the car and left. Appellant was asked why he struck the deceased with the picket, and he stated that he was scared the deceased was g’oing to shoot him. “He came there like he was g'oing to shoot me — had his hand like he was drawing a gun.” Appellant saw something — he didn’t know whether it was a gun or not, as the deceased never got it out of his pocket. Appellant further stated that he did not know what the deceased was coming out there with — deceased had his hand in his pocket — appellant didn’t know whether he knocked him down on the bridge or not. When he last saw the deceased he was not flat on the bridge. It was shown that the deceased had an insurance policy on his life in favor of Ada Lee Clark. Appellant was asked if he had not been paying attention to Ada Lee Clark, and if he did not know that the deceased had $1,000 insurance on his life. Appellant stated he did not know that deceased had any insurance on his life in favor of Ada Lee Clark. Appellant, in answer to questions by counsel for the State, stated that the deceased pulled a gun on him the night before and threatened him, and that he (the appellant) did not feel good over it, but he didn’t say anything to the deceased. Appellant’s own testimony shows that he met the deceased on the bridge coming towards his car. “That’s where they had the fight.” Appellant stated that he met the deceased on the bridge, but he did not have anything* to do but get out of the car and straighten up. Appellant did not know when he jumped out of the ear that the stick was there. His foot just happened to strike it.
The State was permitted to prove by witness Ada Lee Clark, witness for the appellant, and also by Elzeta McKilliau, a witness for tlie State, tliat the deceased was paying their house rent.
After all the testimony was adduced, the court instructed the jury that the testimony to the effect that the deceased was paying the house rent for Ada Lee Clark and Elzeta MeKillian could be considered by the jury only for the purpose of testing the credibility of these witnesses. The court gave certain instructions at the instance of the State, to which rulings counsel for the appellant objected and duly excepted. • The court also gave certain prayers for instructions at the instance of the appellant, and refused certain other prayers. The jury returned a verdict finding the appellant guilty of manslaughter and fixing his punishment at imprisonment in the State Penitentiary for a period of seven years. The court entered judgment sentencing the appellant in accordance with the verdict, from which judgment is this appeal.
The appellant contends that there is no evidence to sustain the verdict, and that the judgment is excessive. The punishment for voluntary manslaughter is not less than two nor more than seven years’ imprisonment in the penitentiary. Section 2367, C. & M. Digest. There was evidence to sustain the verdict finding the appellant guilty of voluntary manslaughter. The jury might have found from the appellant’s own testimony that he acted too hastily in taking the life of the deceased. The jury were warranted in finding that the appellant voluntarily and unnecessarily engaged in the rencounter with Lawrence Harris which resulted in the death of Harris. It was purely the province of the jury to determine under the evidence the guilt or innocence of the appellant. In Bruder v. State, 110 Ark. 402, 161 S. W. 1067, we said: ‘ ‘ This court has held that, where a jury believes that the defendant shot under the belief that he was about to be assaulted, but that he acted too hastily and without due care, and was therefore not justified in taking life under the circumstances, he is guilty of manslaughter.” McGough v. State, 119 Ark. 57, 177 S. W. 398.
Since tlie jury lias found the appellant guilty and fixed his punishment at the. maximum period of imprisonment provided by statute, we do not feel that the testimony is sufficient to justify our interference with the verdict of the jury in that respect. We therefore do not reduce the punishment.
The indictment charges that the appellant “feloniously did kill one Lawrence Harris, a human being, by striking and beating him, the said Lawrence Harris, with an instrument, the exact description of said instrument being unknown to the grand jury, against the peace and dignity of the State of Arkansas.”
The appellant contends that the verdict was contrary to the evidence, because the State failed to prove the above allegation of the indictment. The undisputed evidence by the appellant shows that he struck the deceased with an oak picket, and the undisputed evidence shows that this blow resulted in the death of the deceased. The case is ruled on this point by the case of Wells v. State, 151 Ark. 221-227, 235 S. W. 798-800, where we said:
“The indictment charged that the deceased was killed with a blunt instrument, the exact nature of which was unknown to the grand jurors. The contention that it was error not to require proof of this allegation cannot be sustained. The uncontradicted testimony at the trial showed that Trenz was killed with a blunt instrument. The testimony of appellant himself was to the effect that he struck Trenz with a stick. In view of the above undisputed evidence, it is manifest that the above allegation in the indictment was wholly immaterial, and should be treated as surplusage.” See also Rogers v. State, 136 Ark. 161, 206 S. W. 152, and other eases cited on this point in brief of the Attorney General.
Learned counsel for the appellant contend that the court erred in admitting the testimony of Ada Lee Clark and Elzeta McKillian to the effect that the deceased was paying rent on the house occupied by them. To this testimony of Elzeta McKillian, at the time it was admitted, counsel for the appellant made no objection and saved no exception to the ruling of the court in admitting
the same. Counsel for appellant objected to the testimony of Ada Lee Clark, which objection the court overruled, yet counsel for appellant did not except to the ruling of the court in overruling the objection. The ground of the motion for a new trial therefore, assigning as error the ruling of the court admitting the testimony of the above witnesses, cannot be sustained. In Clardy v. State, 96 Ark. 52-57, 131 S. W. 46-48, we said:
‘ ‘ The proper manner in which to make and preserve an objection to the introduction of testimony, is, first, to make the objection at the time the testimony is offered or to ask its exclusion at the time it is given, and to obtain a ruling of the court thereon, and then to except to an adverse ruling.” See also Warren v. State, 103 Ark. 165, 146 S. W. 477, Ann. Cas. 1914B, 698.
At the time the court instructed the jury that the testimony of Ada Lee Clark and Elzeta McKillian, to the effect that the deceased paid their house rent, could only be considered in passing on the credibility of the witnesses, the appellant did not object and did not except to the ruling of the court in so instructing the jury. It follows therefore, from the above authorities, that the court did not err in overruling the grounds of the motion for a new trial assigning as error the admission of the above testimony; and neither did the court err in limit,-ing the consideration of such testimony “for the purpose only of testing the credibility of these witnesses.” But, even if the objection and exception to the ruling of the court had been properly made and saved, still the testimony was proper for the consideration of 'the jury in determining the credibility of these two witnesses. Hollinsworth v. State, 53 Ark. 387, 14 S. W. 41.
Counsel for the appellant do not point out in their brief any alleged errors in the rulings of the court in the granting and refusing prayers for instructions, but they say they would do so if the appellant had the means of printing a more elaborate brief. We have examined the instructions given at the instance of the State, and the prayers for instructions granted as well as those refused at- the instance of the appellant, to determine whether the court erred in the granting and refusing of prayers for instructions prejudicial to the rights of the appellant in the trial of the cause. It would serve no useful purpose, and would unduly extend this opinion, to set out and comment upon the charge of the court. We have examined it carefully, and it suffices to say that the charge was fair, full and correct. The charge was in conformity with the law in such cases, as same has been often announced by this court.
The judgment is correct, and it is therefore affirmed. | [
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McHaNey, J.
On August 25, 1925, the appellee sold and delivered to S. H. Parsons a certain Dodge automo-bile for $817.50, of which $75.93 was paid in cash, and, for the remainder, two notes were executed, one for $517.50, payable $51.75 monthly, for ' which title was retained to the car, and one for $224.07 due December 15, 1925. No further payments were ever made by Parsons. Some time in 1926, the exact date not being shown, Parsons traded this Dodge car to appellant for a new Chrysler, and, on May 4, 1926, appellant sold the Dodge to Leo Bourland of Port Smith, who, in turn, sold it to a man in Booneville. After appellee learned that Parsons had traded the car to appellant, and after appellant had sold it to Bourland, Mr. Wahl, on behalf of appellee, called on appellant and told him they had title, to the car, and appellant advised him to get after Parsons. Thereafter, on June 28, 1926, appellee instituted this action against Parsons to recover on the notes and against appellant to recover the value of the Dodge car as for conversion. Appellee also sued out a writ of general attachment against Parsons, arid the sheriff took the Chrysler car into possession under the writ. The People’s Loan & Investment Company intervened in the attachment matter, claimed title to the Chrysler as holder of the’ notes executed by Parsons in part payment therefor, and on a hearing the court ordered the Chrysler delivered to intervener. Parsons did not answer, and judgment by default for the amount of the notes and interest was rendered against Mm. Appellant demurred to the complaint. The court overruled the demurrer, and appellant excepted. Without waiving his demurrer, he answered, and a trial of the issues between them resulted in a verdict and judgment against appellant for $350, and he has appealed.
We think the demurrer should have been sustained. The complaint showed on its face that Parsons was a conditional vendee of the Dodge ear; that he had paid a part of the purchase price, been given possession of the car under a contract of sale and purchase, which retained title thereto until all the payments had been made in accordance with the terms of the contract. Under such conditions this court has held in numerous cases that the vendee has such an interest in the chattel as he may sell or mortgage it.
Quoting from the first syllabus in the case of Sunny South Lumber Co. v. Neimeyer Lumber Co., 63 Ark. 268, 38 S. W. 902, which is ampfy supported by the text of the opinion, it is said:
“The vendee of personal property, who pays part of the purchase price under an agreement that the title shall remain in the vendor until the purchase money is fully paid, has an interest in the property which may be mortgaged by him. ’ ’
And in the case of Dedman v. Earle, 52 Ark. 164, 12 S. W. 330, the court said:
“If it be true that appellee reserved the title to the mule until the purchase money was paid, McElroy had an interest in the mule which he could sell. He did not become a mere custodian of the mule. He had a right to sell him at such a profit as he could make. [Citing cases]. His vendee would only take such interest as he had. All appellee was entitled to was his purchase money or the mule. He had no right to the profit, if any was gained. When McElroy traded for the horse, the mule still remained appellee’s, subject to the condition of the sale. By what means did the horse become his property? He could not treat the exchange as a wrongful conversion of the mule,' and elect to waive the tort, and, by ratification, convert the horse into his own property.', That would he entirely inconsistent with the rights acquired by McElroy through the conditional sale.”
In the recent case of Fairbanks, Morse & Co. v. Parker, 167 Art. 654, 269 S. W. 42, it is said:
“In conditional sales of personal property, where the title is retained by the vendor until the purchase price is paid, the- vendee acquires an interest which he can sell or mortgage without the consent of the vendor, but the vendor’s right to recover the property, if the purchase price of the property is not paid, is not prejudiced by such sale or mortgage.” Clinton v. Ross, 108 Ark. 442, 159 S. W. 1103; Estes v. Lamb & Co., 149 Ark. 369, 233 S. W. 99.
It will therefore be seen from the above decisions, and many others that might be cited, that the selling of the Dodge car by Parsons was not an act of conversion oh his part, as he had the rightful possession to the car and the lawful right to sell it,’ and there could be no conversion on the part of appellant in accepting said car and selling it in the usual course of business, especially since he had .no knowledge of any rights of appellee in and to the car. This court held in the case of Settles v. State, 92 Ark. 202, 122 S. W. 500, where such a conditional vendee was indicted for larceny by embezzlement, having-sold a piano in which title had been retained in the seller, that Settles had not committed any crime by making such a sale. This case is unlike the case of Newberger Cotton Co. v. Stevens, 167 Ark. 257, 267 S. W. 777, 40 A. L. R. 1279, cited by appellee, for the reason that the facts in that case showed that A. L. G-rey was holding the cotton of Stevens in his warehouse as a bailee. In other words, the cotton of Stevens was' stored in Grey’s warehouse, and, while there, Grey delivered it to the Lesser-Goldman Cotton Company in Port Smith, to whom he was indebted, together with other cotton, and all of it was sold to the Newberger Cotton Company. This was a conversion, as Grey had no interest in the cotton of Stevens as purchaser, or otherwise.
Then there is another rule that would preclude appellee from recovery against the appellant in this action, and this, too, appears on the face of the complaint, which makes the complaint open to demurrer, and that is that, where a vendor of chattels has reserved the title until the purchase price is paid, on breach of condition he has two remedies: One is to retake the chattel and thereby cancel the debt, and the other is to sue for the debt and thereby waive his title to the property. So, in such a case the vendor has the right to elect which remedy he will pursue, and, having elected to pursue the one, he is precluded from pursuing the other. One of the leading cases on this subject in this court is Nashville Lumber Co. v. Robinson, 91 Ark. 319, 121 S. W. 350. In that case the court siaid:
“For, if the appellant elected to retake the property, and thus in effect to cancel the debt before this suit was brought, then it could- not thereafter sue to recover the purchase money also. "When this debt became due and was unpaid, the vendor, having reserved the title until the purchase price was paid, had its election to take either of two courses. It. could elect to retake the property, and thus in effect cancel the debt, or it could bring its action to recover the debt, and thus affirm the sale and waive reservation of title.” Citing Butler v. Dodson, 78 Ark. 569, 94 S. W. 703. See also Baker v. Brown Shoe Co., 78 Ark. 501, 95 S. W. 808; White v. Beal & Fletcher Grocery Co., 65 Ark. 278, 45 S. W. 1060; Bell v. Old, 88 Ark. 99, 113 S. W. 1023. And in the case of Hollenberg Music Co. v. Barron, 100 Ark. 403, 407, 140 S. W. 582, 36 L. R. A. (N. S.) 594, Ann. Cas. 1913 C, 659, this court quoted with approval from Bell v. Old, supra, as follows :
“The principle is well established that the seller of personal property who has reserved title until the purchase price is paid may, upon default of payment, retake the property, and thereby cancel the debt, or he may sue to recover the debt, and thereby affirm the sale, in which case he looks to the debtor and not to the property; in the other case he looks to the property and not to the debtor.”
And in the more recent case of Olsen v. Moody, Knight & Lewis, Inc., 156 Ark. 319, 246 S. W. 3, it is said:
“This court is committed to the doctrine-that a vendor who has retained title in personal property until the payment of the purchase money has only two remedies for a breach of contract. He may either treat the sale as canceled and bring suit in replevin for the property, or may treat the sale as absolute and sue for the unpaid purchase money, and, in aid thereof, attach the property, under §§ 8729 and 8730, C. &. M. Digest.” (Citing cases). “There is no suggestion in any of the Arkansas cases that a third remedy is open to a vendor who has conditionally sold personal property.”
It necessarily follows, from what we have said, that - the judgment of the circuit court was wrong, and must therefore be reversed, and, no cause of action appearing, the case will be dismissed. It is so ordered. | [
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Smith, J.
Appellant was tried-under an indictment charging Mm with the crimes of burglary and grand larceny. He was acquitted on the larceny charge, but was convicted on the burglary -count of. the indictment and given a sentence .in the State Penitentiary.
A .bank at Altus had been entered by burglars, who, after entering the vault where the Safety deposit boxes were kept, broke into several of these boxes. “When the sheriff arrived at the scene he observed finger !prints -on the boxes, and he caused photographs of these finger prints to be made. Appellant had been confined in the State Penitentiary, and while there his finger prints had been taken, and at his trial W. H. Bennett, who testified that he was an expert in the comparison and identification of finger prints, having devoted many years to that study, further testified that the finger prints on the boxes were identical with those of appellant made at the penitentiary.
The witness Bennett .was subjected to a searching cross-examination by counsel for appellant, in the course of which he stated that the finger prints of no two persons .were identical. After eliciting this opinion, counsel for appellant moved to exclude it, and assigned as error the refusal of the court so to do.
We think that no error was committed in this ruling, for the reason, first, that counsel’s cross-examination brought out the answer. A second reason is that the witness stated that his answer was not an opinion, but was a fact, which had been demonstrated to be true after multiplied thousands of tests, and. that he himself had made innumerable tests without finding any finger prints of different individuals to be identical.
The case of Moon v. State of Arizona, 198 Pac. 288, 22 Ariz. 418, annotated in 16 A. L. B. 362, gives an interesting review of the development of the study of finger prints, and in the annotator’s note it is said that the courts have uniformly held that evidence as to the correspondence of finger prints is admissible to prove identity.
The cross-examination of the witness Bennett was devoted to an attempt to discredit the ability of the witness to distinguish between different finger prints, and, upon the redirect examination of the witness by the prosecuting attorney, the record contains the following-recitals : ‘ ‘ At this point the prosecuting attorney requested the court to permit the -witness to make a demonstration to the jury of his ability to compare finger prints. The court granted the request over the objec tions and exceptions of the defendant. Whereupon the witness, in the presence of the jury and with the assistance of the sheriff, had each of the jurors to place his left thumb on a piece of paper and sign his name thereto. Witness left the room, and the sheriff had Mr. W. T. Blaylock, one of the jurors, to place his left thumb on a piece of paper Avithout his name. Witness was called back and given these pieces of paper. After a few minutes, he said it was Mr. Blaylock’s finger print.”
Counsel for appellant asked the court to exclude from the consideration of the jury this demonstration, and to admonish the jury to disregard.it, and an exception was saAmd to the refusal of the court to so instruct the jury.
In the case of Moon v. State of Arizona, supra, the exact demonstration permitted in this case was made, and that action Avas assigned as error, but the Supreme Court of Arizona, after saying that there Avas no pretense that any trick or device had been employed, held that the test Avas proper to determine the skill of the witness in identifying finger prints.
In holding that no error had been committed, the court quoted from the brief of counsel for the State as follows: “To a layman, unsophisticated and incredulous, the idea that a finger laid on a clean sheet of paper, leaving no visible trace, thereby leaves a signature upon that paper, absolutely and positively, is a fact startling enough, but to see that finger print development under the finger-print powder is a demonstration impressive and convincing. It might well be that, until a juryman Avitnessed this demonstration, he Avould never believe that a plain porcelain slab would reveal the incriminating finger print, but, having seen their own finger prints developed from invisible impressions on sheets of paper, it was no longer a question of speculation; it was to the juryman a fact as commonplace as radium, or Avireless, or flying in the air.”
The court further said that, “for obvious reasons, the admission of experimental testimony must largely rest in. the discretion of the trial judge, and the exercise of this discretion will not he controlled, unless it is manifestly-abused.”- ... . .
See also the annotated case of State of Nevada v. Kuhl, 175 Pac. 190, 3 A. L. R. 1694, 42 N. W. 185, where a somewhat similar demonstration-..was made in the. presence of the jury, and the- testimony held admissible, after an extensive review of the authorities. . .
It has always been held competent to examine a witness who proposes to testify as an .expert, touching his qualifications as such.
At § 62 of the -chapter on “Expert and Opinion Evidence,” in 11 R. C. L. page 646, it is.said that: “He (the expert) may also 'be subjected to tests to determine the value of his opinion. Thus a handwriting expert has often, been required to pass. .on. other signatures submitted to him on the witness stand,-though, they were not relevant to the case.” There is;a. conflict in the authorities, however, as to. whether this exarnination should be confined to writings already in evidence. .
The presiding judge wrote, into the bill of exceptions-the following statement :• - ■
• “While the jury-were deliberating on the case of the State of Arkansas v. Willard Hopkins, and after the same had been submitted to them and after they had been deliberating for -a considerable period of time, without háving reached a verdict,- one of their number, Mr. Will Mullens, as I understand his name, came to me and asked me if they could find the defendant guilty and recommend in their verdict that his sentence be suspended during the time he remained within the jurisdiction of the court and supported his widowed mother. I told- him they could do this, but that it was not binding on the court.- This was in the absence of the defendant, his'counsel and the other jurors. Later in that day another member of the jury on this case, Mr. Eli Turner, as I understood his name, came tó me and asked me practically the same question that Mr. Mullens did, and I -told him that they could. This was also in the absence of the defendant, his counsel, and the other members of the jury. I further certify .that, shortly thereafter, the jury brought into open, court a verdict finding the. defendant guilty of burglary and not .guilty of grand larceny, with the recommendation in accordance with what I told them they could do.” . , .
The Attorney General has virtually confessed-that this proceeding was erroneous, and such we think it wás.
In the casé of Pearson v. State, 119 Ark. 152, 178 S. W. 914, a member of the jury addressed the following note to the presiding judge: “If.the jury should find the defendant guilty as ¡charged in the indictment with a recommendation for leniency, has your Honor the authority and will you assess his punishment at twenty-one years in the State Penitentiary, or for life?” The judge answered the above note by writing thereon the word “No.” When this communication was had between the court and the jury, neither the defendant nor his attorneys were present, and they knew nothing about the incident. It was there said:
“Therefore, treating the exception as true, the court erred in communicating with the jury ifi the manner set up in this exception, in the absence of the defendant and his counsel. This inquiry on the part of the jury and the answer thereto by the court was tantamount to giving instructions to the jury in the absence of the defendant and his counsel. If the appellant or his . counsel had been present, then they might have objected to the court’s answering the inquiry in any manner :at all, and they might have objected to the answer that the court gave. It is unnecessary to determine whether the answer was correct. In Kinnemer v. State, 66 Ark. 206, 49 S. W. 815, the court re-read the instructions to the jury in the absence of the defendant exactly as at first given before the jury retired to consider of their verdict. Of this procedure, we said: ‘ The instructions could not be re-read in his absence, for, although they were read exactly as at first given, the defendant had the right to know and see that such was- the case, and to he present for that purpose’ ” (citing authorities).
In the recent case of Wacaster v. State, 172 Ark. 983, 291 S. W. 85, it was said:
“Section 3192, Crawford & Moses’ Digest, provides how a jury, after it has retired for deliberation, shall acquire information on any point of law or about any part of the evidence, if there is a disagreement, that they must require the officer to conduct them into court, where the information required must be given in- the presence of, or after notice to, the counsel of the parties. Its provisions are mandatory. ’ ’
See also Wawak and Vaught v. State, 170 Ark. 329, 279 S. W. 997, and Aydelotte v. State, 170 Ark. 1192, 281 S. W. 369.
The court should not have charged the individual jurtfrs as to the law of the case in the absence of the accused and his counsel, and, for this error, the judg*ment must be reversed, and the cause will be remanded for a new trial. | [
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Mehaeey, J.
A petition was filed in the county court at Jonesboro, by owners of real property, asking for the formation of a drainage district. Certain taxpayers filed remonstrance, and the circuit court, after a hearing, found that all of the real property included within the proposed district would be greatly enhanced in value and the health of the= residents greatly improved, public roads and highways benefited, and it would be to the advantage of the owners of real property to establish the district, and ordered the establishment of the. district and the drainage as prayed in the petition.
Certain property owners appealed to this .court, and their contention is that the entire scheme is one for purely municipal improvements, or, if not for municipal improvements, there is not any unity in the several projects.
The drainage district embraces about 6,510 acres of land, according to appellant’s statement, and to be taxed at $212,975. One thousand and ten acres of the property is city property,, divided into approximately 3,500 lots. The appellant's earnestly contend that the district cannot be formed lawfully because there is no unity and no authority in law for this kind of proceedings. - That this is a scheme to drain the city with a system of storm-sewers, seeking an outlet through the rural property.
We think this question is answered against the contention of appellants in the case of Butler v. Board of Directors Fourche Drainage Dist., 99 Ark. 100, 137 S. W. 251. In that case the -court said, speaking through Chief Justice McCulloch :
“Appellant owns real property in the city of Little Rock, and in an action instituted in the chancery court of Pulaski County he attacked the validity of an act of the General Assembly creating and laying off an improvement district 'for the drainage of certain portions of the Fourche bottoms and contiguous territory.’ The boundaries of the district include the whole of the city of Little Rock and several adjoining townships outside of the city. Fourche Bayou, the stream to be drained, lies wholly without the city limits, but the bottom or flooded lowlands extend into the city limits. The statute, as subsequently amended, authorizes the board of directors of the district to proceed with the making of the improvement, the assessment and collection of taxes, the borrowing of money, etc., without procuring the assent of a majority in value of the owners of real property in the district. ’ ’
The court then quotes art. 19, § 27, of the Constitution of Arkansas, and, continuing, the court says:
“The question is now presented to us, for the first time, whether the above-quoted section of the Constitution applies to and forbids the creation of an improvement district lying partly in and partly outside of a city or town without obtaining the consent of the property owners. The Constitution of the State is not a grant or an enumeration of powers vested in the legislative department, 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. State v. Ashley, 1 Ark. 511, 513.
“We are of the opinion that the above quoted provision of the Constitution applies only to assessments for improvements purely local to a municipality, and not to local improvements covering wider territory, even though a part or all of the municipality be included therein. An improvement district like this, covering territory both in and out of a municipal corporation, does not fall within either the letter or the spirit of the constitutional provision. It is not a local improvement in a town or city, and therefore not within the letter of the constitutional prohibition. It is not within its spirit, for, there being no inhibition upon the creation of districts outside of cities or towns, there is no reason for construing the provision to mean that the consent of the property owners inside of the city or town must be obtained, whilst the wishes of the property owners in the same district outside of the city or town may be ignored.” Butler v. Bd. Dir. Fourche Drainage Dist., 99 Ark. 100, 137 S. W. 251; Cox v. Road Improvement Dist. No. 8 of Lonoke County, 118 Ark. 119, 176 S. W. 676; Cumnock v. Alexander, 139 Ark. 153, 213 S. W. 767; Thompson v. Mann, 159 Ark. 391, 252 S. W. 4.
“So far as the authority of the Legislature to form a district or to authorize its formation by the circuit court Or other agency is concerned, including property both in the city and in the country, is settled by the decision in Butter v. Board of Directors Fourche Drain. Dist., above mentioned. The fact that a portion of the property was in the city of Jonesboro and a part of it outside the city does not make the district invalid.
.“Appellants, however, argue earnestly that it is invalid because it is two improvements; that there is a distinction between a sewer and a drain or ditch, and, in support of that argument, call attention to Words & ■Phrases and Ruling Case Law. We do not agree with counsel for appellant in this contention. There may be a distinction between a sewer and a drain or ditch, but there is not necessarily any distinction.”
“The section of R. C. L. referred to b}r appellant, among other things, states: ‘The words “drain” and “ditch” have no technical or exact meaning, but are used to signify a hollow space in the ground, either natural or artificial, where water is collected or conveyed away. A drain as distinguished from a sewer may be open and is so arranged as to carry away surface water, but, as used in a statute, the word has been construed as broad enough to include sewers, and the.term “sewage” is generally held to include matter carried away in drains as well as that carried away in sewers, though not such matter as may incidentally be washed or cast into streams without the mediation of a sewer or drain. It has been said that the only difference between drains and sewers is that they are called sewers in cities and closely populated communities, while they are called drains in rural and agricultural communities, and the further difference that sewers are generally covered over to prevent the escape and dissemination of foul odors and noxious gases, and conceal the passage of their contents through the streets, while drains are open. And whatever technical differences there may be in the definitions of the two, the principles applicable to drains and sewers are very similar’.” 9 R. C. L. 618.
The authorities referred to in Words & Phrases are also in accord with the rule of law above stated. That is, that the chief difference between drains and sewers is that they are called sewers in cities and closely populated communities while they are, called drains in rural and agricultural communities. The .object of drains, both inside and outside of the city of Jonesboro, in this.case is the same.
We do not deem any extended discussion necessary, for the reason that we think the case is ruled by the ease of Blutler v. Bd. Dir. Fourche Drain. Dist. above mentioned. We conclude that it is one improvement for the purpose of draining the territory described, and that it is a valid district. It does not violate any constitutional or statutory provision as heretofore construed by this court. The judgment of the circuit court is therefore affirmed. | [
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Smith, J.
Appellant was indicted for seducing Carrie Whisenliunt, an unmarried female, was convicted at his trial, and has appealed. The first insistence for the reversal of the judgment of the court sentencing him to a term in the penitentiary is that the testimony failed to show that the female alleged to have been seduced was an unmarried person. The testimony shows, however, that the woman alleged to have been seduced had been reared in that community, and the witnesses all called her Miss Whisenhunt, and she was referred to as the daughter of Bob Whisenhunt. Appellant and all the other witnesses who testified in the case had long been acquainted with her, and she testified that appellant courted her and agreed to marry her, and, by virtue of this promise, had carnal knowledge of her, and that she had never had sexual intercourse with any other man. This testimony, we think, sufficiently supports the finding that Miss Whisenhunt was an unmarried person.
It is also insisted that the testimony is not legally sufficient to support the conviction, in that the testimony of Miss Whisenhunt is not. corroborated either as to the promise of marriage or the act of sexual intercourse, both of which facts appellant denied.-
Miss Whisenhunt testified that appellant began to visit her the second Sunday in April, 1924, and that he called nearly every Sunday after that, and frequently spent Saturday evenings with her. That he courted her, and she foil 'in love with him, and that they became engaged on tlie second Sunday in May, and he asked her to have sexual intercourse with him, but she declined to yield, and he became angry and discontinued his visits for a few weeks, but he apologized for his request and resumed his visits, and they renewed their engagement. Appellant renewed his importunity that she have sexual intercourse with him, and insisted that it was not wrong, as they were going to marry, and she yielded because she loved him and believed he was going to marry her. This occurred the third Sunday in June, 1924. The acts of sexual intercourse were repeated, but always under and in reliance upon appellant’s promise to marry her. Appellant continued his visits until September, when Miss Whisenhunt told him that she had become pregnant. Appellant declined to marry her, and went to Texas, and did not return until December. He then went to Colorado, where he remained until he was brought back to this State by the sheriff.
Miss Whisenhunt was corroborated as to the atten-lions paid her by appellant, and that, during this interval, his attentions were exclusive. Miss Whisenhunt gave birth to a boy child March 5, 1925.
T. A. Morphew testified that appellant told him in May, 1925, that he had come to see his wife, referring to Miss Whisenhunt, and that he was going to see her and give her $75 and then leave the country. Appellant asked witness to deliver this money, but witness declined to do so. On his cross-examination witness testified that appellant said he had come to see his wife and Clayton Pen-son’s baby.
' J. W. Penson testified that he saw appellant after his return, and appellant asked him had I seen his boy; was he a fine boy; how did, he look? The child referred 1o was the baby to which Miss- Whisenhunt had given birth. This witness testified that appellant said he would not deny it being his boy, and was asking how did he look, and was he a fine boy. Witness told appellant the child was puny, and they did' not think it would live, and appellant answered that he did not give a d-if it would die.
B. A. Penson testified that appellant admitted to him that he told Miss Whisenhunt a lie when he promised to marry her.
Appellant admitted that he had loved Miss Whisen-hunt, and that, after the birth of the child, he had asked her why she was accusing him, and had also asked her if he was the father of the child, and that she had answered that it didn’t make any difference whether he was the father of the child or not, she was going to send him “over the road” anyway.
We think this testimony sufficiently corroborative of that of Miss Whisenhunt to meet the requirement of the law, that the testimony of a female alleged to have been seduced be corroborated by other evidence.
The court gave only one of the instructions requested by appellant, the one given being to the effect that, although appellant had promised to marry the prosecuting witness, yet if the engagement was broken and he afterwards had intercourse without renewing his promise to marry, he would not be guilty of seduction. We have already said that Miss Whisenhunt admitted the engagement had been broken, but she also testified that it had been renewed, and that she yielded under the renewed promise.
Of the other instructions asked by appellant, several might well have been given, as they were correct declarations of the law as applied to the issues of fact in the case, but it appears that the instructions given fully and fairly declared the law applicable to all the issues of fact presented by the testimony.
The instructions given by the court required the jury to find beyond a reasonable doubt, before convicting appellant, that he had obtained carnal knowledge of Miss Whisenhunt by virtue of a false express promise of marriage, and that, prior to.the act of intercourse, she was of chaste character, and the jury was directed to acquit the defendant if any reasonable doubt was entertained of the previous chaste character of the prosecuting witness, The jury was further instructed that it must he found beyond a reasonable doubt, before defendant could be convicted, that Miss Whisenhunt was induced to surrender her virtue through the promise of defendant to marry her, and that only, and that, if she had yielded her virtue for sexual pleasure, and not by reason of a promise of marriage, the defendant would not be guilty.
The court also fully and correctly charged the jury as to the necessity for corroboration both as to the promise of marriage -and the act of sexual intercourse, and gave other instructions on the question of reasonable doubt and the presumption of innocence.
Several witnesses testified, on behalf of appellant, to the effect that they had had sexual intercourse with Miss Whisenhunt prior to the time of her alleged seduction, but it is evident from the verdict returned under the instructions given that the jury did not believe this testimony.
Appellant requested an instruction numbered 15, which reads as follows: “You are instructed that the prosecuting witness is presumed to be chaste and virtuous and the defendant is presumed to be innocent, but the presumption of innocence is greater than the presumption of virtue.”
It is insisted that no other instruction given covered this phase of the case, and that it was error to refuse this instruction.
At § 61 of the chapter on “Seduction” in 24 R. C. L., page 777, it is said :
“Much conflict of opinion has resulted in determining whether, in the prosecutions for seduction, the burden of proof rests on the State to prove the chastity of the woman seduced, or on the defendant to prove her want of chastity. In favor of the former position, it is contended that the State must establish every element of the offense beyond a reasonable doubt, and the chastity of the woman is one of the essential elements. On the other hand, it is contended that a woman is presumed to be chaste until the contrary is shown. The majority rule favors the latter view; hence, the chastity of the woman is presumed in the first instance, and the defendant must introduce evidence of unchastity in order to take advantage of the defense. In support of this position it is contended that, while the law presumes the prisoner innocent until proved guilty, it does not follow that the State can use no presumptions.”
Our case of Caldwell v. State, 73 Ark. 139, 83 S. W. 929, 108 Am. St. Rep. 28, is cited as supporting’ what is there said to be the majority rule. This Caldwell case reviewed the authorities on the subject, and particularly the previous opinions of this court in the cases of Polk v. State, 40 Ark. 486, 48 Am. Rep. 17; McArthur v. State, 59 Ark. 431, 27 S. W. 628; and Walton v. State, 71 Ark. 398, 75 S. W. 1, in which last mentioned case it had been held that an indictment for seduction is bad which fails to allege that the prosecutrix was of previous chaste character.
This.holding in the Walton case was modified in the Caldwell case, where it was held that it was not essential to allege the previous chastity of the prosecutrix, nor prove it, as there was a presumption of chastity. The holding in the Caldwell case was that the lack of chastity was an affirmative defense which the defendant might offer, and that, when made, the burden was on him to establish it, because of the presumption of chastity.
Numerous later cases have held that it was not improper to charge the jury that there was a presumption of chastity, although there was also a presumption of innocence. Sutton v. State, 163 Ark. 468, 260 S. W. 409; Taylor v. State, 113 Ark. 520, 169 S. W. 341; Wilhite v. State, 84 Ark. 67, 104 S. W. 531; Rucker v. State, 77 Ark. 23, 90 S. W. 151.
There is no conflict in the two presumptions. The presumption of chastity relates only to the burden of proof. Chastity need not be alleged in an indictment, nor need it be proved at the trial, because it is presumed. It may be shown that it does not exist, and that burden is on the defendant who offers that defense, just as the burden of proof'of an alibi is on the defendant who interposes that defense. But the accused is clothed with a presumption of innocence, notwithstanding the burden of establishing an affirmative defense when he interposes it, but the fact that he is presumed to be innocent does not relieve him of the burden of establishing an affirmative defense.
The instruction is argumentative and is confusing, for the reason that it appears to tell the jury that the indulgence of the presumption of innocence relieves the accused of the burden of establishing the affirmative defense of a lack of chastity.
An instruction numbered 2, given by the court, reads as follows:
‘‘You are instructed that the prosecuting witness is presumed to be of chaste character, and the burden of proving that she was unchaste at the time of the alleged seduction is upon the defendant; but the burden is on the State upon the whole case to prove the defendant guilty from all the evidence in the case, beyond a reasonable doubt.' If you have a reasonable doubt that the prosecutrix was of previous chaste character, you will acquit the defendant. ’ ’
It thus appears that, while the jury was instructed that the burden was on the accused to show that the prosecutrix was unchaste, he was given the full benefit of the presumption of innocence with which the law clothed him.
There was no error in refusing to give this instruction.
We find no error in the record, and the judgment must be affirme/d, and it is so ordered. | [
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Smith, J.
-This appeal questions the validity of ordinance No. 3999 of the city of Little Bock, for the violation of which appellant was convicted. Section 1 of this ordinance reads as follows:
“Section 1. That it shall be unlawful for any person to erect, construct, maintain or hang- from any building or any other support, any sign other than electric signs of all steel construction, and shall conform to the requirements of that section of ordinance No. 2799, regulating street electric signs hanging or extending over sidewalks of the city of Little Bock, as follows(certain streets constituting the principal business section of the city). Other sections of the ordinance provide for the issuance of permits to hang signs, and for their subsequent inspection.
The section of ordinance No. 2799 referred to reads as follows:
“Electric signs. — Electric signs hanging and extending over any sidewalk, street or alley shall not exceed 400 pounds in weight, and shall be skeletonized. Fee for permit $1 and fee for inspection of construction and erection $3.”
Appellant admits that he violated the ordinance by hanging a sign- which did not conform to the ordinance, and he does not question the right of the city to pass an ordinance properly regulating the hanging of signs, hut he does insist that the ordinance is void for the reason that it is arbitrary and discriminatory, and was passed for the purpose of giving a competitor a monopoly of the sign-hanging business.
Section 7529, C. & M. Digest, confers upon municipal corporations of the State the power to prevent injury and anoyance within the limits of the corporation from anything dangerous, offensive or unhealthy, and we see no reason why an ordinance to accomplish this result may not be limited in its operation to that portion of the municipality where the exercise of this power is deemed necessary, and to that portion only. ■ Zoning' ordinances were upheld by this court in the case of Herring v. Stannus, 169 Ark. 244, 275 S. W. 321, and Little Rock v. Pfeifer, 169 Ark. 1027, 277 S. W. 883, and such legislation has been held not to offend against the Constitution of the United States. St. Louis Poster Advertising Co. v. City of St. Louis, 249 U. S. 269, 39 S. Ct. 274, 63 L. ed. 599. See also, on the general subject of the police power to enact regulations of this kind, the following cases: Block v. Hirsh, 256 U. S. 135, 156, 161, 41 S. Ct. 458, 65 L. ed. 865, 16 A. L. R. 165; Levy v. Siegel, 258 U. S. 252, 247, 42 S. Ct. 289, 66 L. ed. 595; Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 420, 43 S. Ct. 158, 67 L. ed. 322, 28 A. L. R. 132; Ambler Realty Co. v. Euclid, 297 Fed. 307, 315.
As to the contention that the ordinance is void as a restraint of trade, in that it was passed to give certain sign hangers a monopoly of the business, it suffices to say that we find nothing in the language of the ordinance to support this contention. The ordinance does not require a patented sign. It does prohibit the hanging of any sign within the designated area ‘ ‘ other than electric signs of all-steel construction,” which conform to requirements of ordinance 2799, and the requirements of that ordinance are that ‘ ‘ electric signs hanging and extending over any sidewalk, street or alley shall not exceed 400 pounds in weight, and shall be skeletonized.”
We see nothing in this ordinance which is calculated to give any one a monopoly of the sign-hanging business, and there is no reason why one man might not comply with it as well as another.
Other sections of ordinance 3999 show the purpose of the ordinance is to eliminate wooden, cloth and other signs regarded as dangerous in the business district of the city, and to prohibit the hanging of any sign over any street, sidewalk or alley in the business district which exceeds 400 pounds in weight and is not skeletonized. The ordinance does not define the word ‘[skeletonized,” but the testimony shows it means a hollow sign, with steel sides,and glass letters, and we are of the opinion that the city had power to pass such an ordinance:
The ordinance requires a permit from the city to erect a sign, and the semi-annual inspection thereof after its erection. Appellant as well as all others would be entitled to this permit, if the sign which he proposes to hang .complied with the ordinance, and he might, by appropriate action, compel the issuance of the permit, if it were denied, but that question is not presented here, as appellant admits that the sign which he hung in the restricted area-did not conf orm to the ordinance.
The judgment of the court convicting appellant of a violation of the ordinance must therefore be affirmed, and it is so ordered. | [
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Hart, C. J.,
(after stating the facts). It is first insisted that the decree should be reversed because the case was erroneously tried in the chancery court. The record shows that, during the progress of the trial in the circuit court, over the objections of both parties, the case was transferred to equity. Both parties saved their exceptions to the action of the circuit court. The order of transfer from the circuit court to the.chancery court discontinued the action in the former court but continued it in the latter court until it was disposed of there, either by trying the case or by transferring it back to the circuit court.
If the order of the court is erroneous, it can be corrected upon appeal from the final judgment or decree in the case. Gilbert v. Shaver, 91 Ark. 231, 120 S. W. 833; Vaughan v. Hill, 154 Ark. 528, 242 S. W. 826; and Nicholas v. Bright, 154 Ark. 1, 241 S. W. 33.
When tlie case was transferred to tlie chancery court, no motion was made to transfer it back to the circuit court, nor were any objections or exceptions saved to the action of the chancery court in trying the case. Under these circumstances the case must be'treated as an ordinary action instituted in the chancery court and tried there by consent. By not objecting to the jurisdiction of the chancery court the objection to the forum was waived. Columbia Compress Co. v. Reid, 160 Ark. 436, 254 S. W. 825, and Ohio Galvanizing & Manufacturing Co. v. Nichol, 170 Ark. 16, 279 S. W. 377.
It is next insisted that the finding of fact made by the court in favor of B. Lewis was wrong, and called for a reversal of the decree. We do not agree with counsel in this contention. The record shows that B. Lewis rented land from A. T. Hemphill in Little River County, Arkansas, for the year 1925. He made a crop on the shares and turned over the crop to Hemphill to be sold by him. After the payment of his account in the sum of $198 there remained due him, as his share of the proceeds of the crop, the sum of $525.96. He made demand of Hemphill for this amount, and the latter refused to pay him, on the ground that-B. Lewis and C. J. Lewis, his father, owed him a balance on an old account for supplies furnished them in making crops in partnership during the years 1919, 1920 and 1921.
According to the testimony of A. T. Hemphill, the account for these 3rears was in the name of C. J. Lewis, but the account was kept in this way for convenience. C. J. Lewis and B. Lewis were partners in making crops during the years they traded with him, and owed him a balance on said account in excess of the amount sued for in this action by B. Lewis. C. J. Lewis and B. Lewis indiscriminately would come to the store and purchase supplies, during the years above referred to, in behalf of the partnership.
According- to the testimony of B. Lewis, he had nothing whatever to do with the account made by his father, C. J. Lewis, during the years above referred to. During these years he worked with his brother, Lloyd Lewis, in making a crop, and lived with him for the most part. His brother furnished the supplies with which they made the crop, and paid for them. 'When B. Lewis was at home, sometimes when at the store* he would purchase supplies for his father, when requested to do so. It was understood by A. T. Hemphill that B. Lewis was purchasing these goods for his father and that B. Lewis had no interest whatever in the account. During the years 1919, 1920 and 1921 C. J. Lewis lived in town with his daughters, and purchased goods from A.'T'. Hemphill on his own account.
Lloyd Lewis was a witness for B. Lewis, and in all essential respects corroborated his testimony. Other witnesses testified in the case, but their testimony does not have any direct bearing on the issues. The testimony of A. T. Hemphill is slightly corroborated by the witnesses for him. On the other hand, B. Lewis introduced other witnesses who, to some extent, corroborated his testimony.
The evidence. above set forth, however, warranted the chancellor in finding that B. Lewis did not trade with A. T. Hemphill except during the year 1925, when he made a share crop on the defendant’s place. He delivered all the cotton he raised that year to Hemphill, and it was sold by him. Lewis demanded the balance due him from the proceeds of his share of the crop, after paying his account for that year. This he was entitled to, and the chancellor properly rendered a decree in his favor for that amount. The chancellor made a specific finding that B. Lewis and C. J. Lewis, his father, were not partners during the years 1919, 1920 and 1921, and that B. Lewis was not responsible for the account for supplies furnished by Hemphill to C. J. Lewis for these years, and his finding is sustained by the evidence.
It follows that the decree of the chancellor was correct, and it will therefore be affirmed. | [
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Kirby, J.
This is an action for damages brought by appellee, as administratrix of the estate of Henry Dillon, against the Standard Pipe Line Company, Inc., for causing the death of her husband, Henry Dillon, by the carelessness and negligence of said company by raising or causing to be raised a pipe line heavily charged with oil and gas, which exploded and broke, the oil striking the deceased with violence, knocking him down and covering him, with the result that he developed pneumonia, from which he died.
Deceased was in the employ of the appellant company as water carrier, on or about the 11th day of May, 1925, at or near a village known as Cross Roads, in Union County, Arkansas, his duty being to carry water to the crew of the appellant engaged in constructing a pipe line near there. At the time of the injury the crew was engaged in laying the 10-inch pipe line under and beneath a 4-inch pipe line owned by the Lion Oil & Refining Company, and it was alleged that said crew, while so engaged, negligently, carelessly and recklessly raised said pipe of the Lion Oil & Refining- Company, which was heavily charged with oil and gas, causing same to burst and explode and drench the deceased with oil, from which he later developed pneumonia, and died on the 25th day of May.
The appellant company denied all the allegations of negligence and that the deceased was injured by the oil violently escaping from the burst pipe, and that pneumonia was developed on that account, and any liability for causing the death of deceased; pleaded assumed risk, and that the death resulted from natural causes, for which it was in no wise responsible.
Appellant insists for reversal that it was not guilty of negligence in raising the pipe line of the Lion Oil & Befining Company, and that the bursting of the pipe line and the drenching the appellee’s intestate with oil therefrom was not the cause of the deceased contracting pneumonia, from which he died.
The pipe line at the place was being laid in a ditch full of water, and, according to the testimony of the foreman of appellant, in charge of the work, the small live ' pipe line, on top of the ground, was raised high enough to put the 10-inch pipe under it in order to make the connections above the water, where they could be seen. It was the custom to lay the pipe line being constructed by digging a trench or ditch deep enough to carry it under the other pipe lines, already constructed, which were also raised at times to permit construction of new lines, it being customary to put the new lines under the lines already laid.
The superintendent stated that, if the ditch had not been full of water, the pipe would have been connected in the ditch without raising the pipe line on the surface.
The jury might have - found that there was negligence, under the circumstances, in lifting the surface line, carrying oil under a 400-pound pressure, high enough to connect the larger pipe line above the water in the ditch, but for which, of course, it would not have been necessary to raise the live line so high, nor at all.
. There was some testimony tending to show that the pipe line could have been raised without danger of breaking from strain and vibration, if it were not in operation, but it was not the custom to ask operators of other lines to cut off the power during the crossing of the new line, and, of course, the builder of the new line could not stop the operation of a line not belonging to it.
Even though it be conceded that appellant’s servants used due care in the raising of the pipe line, it does not follow that there was no negligence in raising it to the height necessary to connect the 10-inch line above the surface of the water in the filled ditch, nor in raising it at all, since, but for trying to make the connection with the ditch full of water, there had been plenty of clear space, as was intended in the digging of the ditch, to make the connection without raising the live pipe on the surface.
Neither can we say that the drenching of the deceased with the oil from the pipe negligently caused to be raised could not have been the proximate cause of the alleged development of the pneumonia, from which the injured employee died. The pressure was strong in the pipe, and one witness testified that the stream of oil, when the pipe broke, knocked the deceased down and covered him with the oil, although the testimony on this point is somewhat in conflict, and there is conflict also as to the time deceased remained in his oil-drenched clothing before he was able to get back to his room and change his clothing, as he was permitted to do immediately after the occurrence.
The physician treating him at the time of his death said it was caused by pneumonia following flu. Some of the expert witnesses testified that the wetting or drenching of the deceased with the oil would not have caused the development of pneumonia, but for germs already in his system, while others thought it would not have caused it at all. Other physicians testified that they would attribute the development of pneumonia, afterwards, to the condition produced by the oil escaping from the broken pipe, one saying that it was especially calculated to do so, because of the closing of the pores of the skin by the envelopment of the body in the crude oil.
Under the circumstances we cannot say that the verdict is not supported by substantial testimony, nor, as a matter of law, that the jury, the question being one ordinarily for its determination, was not warranted in finding the negligence the proximate cause of the injury. While it is generally held that, in order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and prob able consequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of attending circumstances. Still it is not necessary that the particular injury should have been foreseen, but, if the act or omission' is one which the party, ought, in the exercise of ordinary care, to have anticipated as likely to result in the injury of others, then he is liable for any injury proximately resulting therefrom, although he might not have foreseen the particular injury which did occur. Pulaski Gas Light Co. v. McClintock, 97 Ark. 576, 134 S. W. 1189, 1199, 32 L. R. A. (N. S.) 825; Morgan v. Cockrell, 30 L. R. 407, 294 S. W. 44; and Mid-Continent Life Ins. Co. v. Chappell, post p. 712.
We find no prejudicial error in the record, and the judgment is affirmed. | [
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Smith, J.
A negro named Charlie Wilson, who died in 1910, owned, at the time of his death, two forty-acre tracts of land in’ Union County. The land was described as follows: The southeast quarter of the southwest quarter of section 6, and the southwest quarter of the southeast quarter of section 6, township 16 south, range 15 west. The witnesses refer to the first tract as the “west forty” and to the other as the “east forty,” and for convenience we will employ the same descriptions.
The west forty was the subject of the litigation in the case of Wilson v. Biles, reported in 171 Ark. 912, 287 S. W. 373, while the east forty was the subject of the litigation in the recent case of Clark v. Friend, ante p. 26, in which the opinion was delivered on May 16, 1927. The opinions in those two cases recite many of the facts which appear in the record on the present appeal. •
On the first appeal, which involved the west forty, numerous litigants claimed title through conveyances from various persons claiming to be collateral heirs of Charlie "Wilson. Others claimed under the children of Mollie Owens, who, it was alleged, had been the wife of Charlie Wilson and had borne him four children. Under the record then before us we found that these collateral heirs had not made their case, and that a lawful marriage had not been proved by the heirs of Mollie Owens, and that the land was a new acquisition by Charlie Wilson, and that, as he left no children or descendants of children, Lizzie Wilson, the widow of Charlie Wilson, was entitled to one-half of his real estate in fee-simple, under § 3536, C. & M. Digest. We held that the effect of the decree from which the appeal in that case came was to declare that Lizzie Wilson had title to an undivided one-half of the land owned by Charlie Wilson, and that she had conveyed the west forty to Willie Wilson by a warranty deed, and the validity of that deed was upheld as a conveyance by the widow of the estate which she had acquired upon the death of her husband.
Willie Wilson is the legitimate son of Eosa Wilson, a daughter of Charlie Wilson born out of wedlock. He was born in the home of Charlie and Lizzie Wilson, and was reárecl by them as an adopted child, although he was never legally adopted.
During the progress of the taking of the testimony on the former appeals, testimony was offered which ledto the belief that Charlie Wilson had a grandchild, who, if living, would inherit to the exclusion of -all the collateral heirs. This testimony was to the effect that, immediately after the Civil War, and not later than 1868, Charlie Wilson was lawfully married to Fannie Mayo, by whom he had two children, one of whom died in-infancy,: and the other child, a girl named Dorcas, grew to womanhood, and, without having married, gave birth to a daughter, and that this daughter, although a bastard, would inherit -from her mother, who was the only legitimate child of Charlie Wilson.
The present record is an exceedingly voluminous one, as more than a hundred depositions were taken, and much of the testimony is directed to an attempt to prove a lawful marriage between Charlie Wilson and Fannie Mayo, and that a female child, Dorcas, was born of this union, and that she became the mother of one Fannie Watt, who is said to be the sole heir-at-law of Charlie Wilson.
One of the witnesses giving this testimony was Dora Watford, half-sister of Dorcas, who testified in one of the former cases that Dorcas was a daughter of Charlie Wilson and Fannie Mayo, and was survived by a daughter named Fannie, whose father was one William Wallace. -
Immediately an extended search was begun for this granddaughter, and a woman between thirty and thirty five years old was finally located in a levee camp near Hughes, Arkansas, who is said to be this missing heir. Her father, however, was William Watt, instead of William Wallace, and upon finding this woman she executed a declaration of trust, wherein she employed O. W. Clark, as trustee, to institute suit to recover both forty-acre tracts for her as the heir-at-law of Charlie Wilson.
The first fact to be established to recover the land was that Charlie Wilson and Fannie Mayo were lawfully married, and it is insisted that -they were lawfully mar ried in Union Parish, Louisiana, before Charlie Wilson left that State and came to Arkansas. This fact -is shrouded in much doubt, as it was said to have occurred nearly sixty years before the testimony was taken to establish it. However, witnesses were produced who claimed to have been present when the ceremony was performed, and other witnesses testified that Charlie Wilson and Fannie Mayo lived together for a short time in Louisiana as husband and wife. In this connection it may be said that the clerk of the court, who was the custodian of the marriage records in that parish, testified that the marriage records were intact, and that there was no record of any license for this' couple to marry.
The testimony is to the effect that Charlie Wilson was then known as Roan Wilson, and the witnesses who identified Charlie Wilson as Roan Wilson testified that Roan Wilson changed his name to Charlie Wilson after he left Louisiana for Arkansas.
It is- clearly established that Roan Wilson left Louisiana and came to Arkansas, and that, when he left, he deserted Fannie and brought with him another woman named Ellen Westereath, but this woman soon returned to Louisiana.
After Roan Wilson left Louisiana, Fannie was twice married and bore children by both husbands, one of these children being Dora Wafford, previously referred to. After coming to Arkansas, Charlie Wilson, who is said to be the Roan Wilson who married Fannie Mayo in Louisiana, lived with Mollie Owens, and four children were born to them while they were cohabiting together. These children were held to be illegitimate in the case of Wilson v. Biles, supra.
The trial court specifically found, at the trial from which this appeal comes, that the testimony did not establish a legal marriage in Louisiana between Roan Wilson and Fannie Mayo. If we concurred in this finding, it would not be necessary to proceed further, as it is essential for Clark, trustee, to prove a valid legal marriage between Boan Wilson and Fannie Mayo, and tlxat Loan Wilson and Charlie Wilson are one and the same person.
While there is at least a reasonable donbt about the proof of this essential fact, it is a fact which does not have to be proved beyond a reasonable doubt. A preponderance of' the evidence suffices. Sims v. Fisher, 172 Ark. 1038, 292 S. W. 92. We have concluded, although with no assurance of certainty, that the preponderance of the testimony shows a valid legal marriage in Louisiana .between Charlie Wilson and Fannie Mayo. Leach v. Smith, 130 Ark. 465, 197 S. W. 1160.
The next essential fact for Clark,' trustee, to establish is that a child .was born to this union, that this child was Dorcas Wilson, and that Fannie Watt is the child of Dorcas, it being conceded that this child of Dorcas was illegitimate. The illegitimacy of Fannie Watt is immaterial if she is in fact the child of Dorcas, and if Dorcas is the child of Charlie Wilson and Fannie Mayo, as a bastard can inherit from the mother. Section 3473, C. & M. Digest.
The court found the testimony was not sufficient to establish this second fact, and this finding would also be conclusive of the case if we concurred in it. The relationship of Fannie Watt as the daughter of Dorcas Wilson and that of Dorcas as daughter of Charlie Wilson and Fannie Mayo is a fact which may also be established by a preponderance of the evidence, and, while the testimony is not clear and satisfactory, that degree of proof is not required, and we have concluded that the preponderance of the evidence shows that Fannie Watt is the daughter of Dorcas, and that Dorcas was the legitimate child of Charlie Wilson and his wife Fannie.
We do not set out the testimony, as no useful purpose would be served in doing so, and it may be conceded that there are many contradictions in it, due, no doubt, to the long period of time which the testimony was required to cover and the moving about by the parties whose identity it is sought to establish, but a very careful consideration of it all leads to the conclusions we have announced.
It appears from the opinion in the second appeal, that of Clark v. Friend, ante p. 26, that Charlie Wilson had become indebted to the firm of Young & Anderson, and had executed a deed of trust to the east forty, if not to both forties, and by a foreclosure, or in some other manner, Young, as the ; surviving partner; acquired the title to the east forty. Charlie Wilson resided on this forty until the time of his death, and, soon after his death, Lizzie and Willie Wilson moved to the west forty, where Lizzie resided until her death. Lizzie built a home and the usual farm outhouses on the west forty, and cleared, fenced and cultivated about half of it.
Appellants contend that Lizzie took possession of the Avest forty as the widow of Charlie Wilson, and that, as she had the right so to do, her possession Avas never adverse to the granddaughter, Fannie Watt. It is certain, hoAvever, that, even though Fannie Watt is the daughter of the only legitimate child of Charlie Wilson, neither he nor Lizzie Wilson ever knew of her existence.
One of Charlie Wilson’s nearest neighbors was Nazareth Flanagan, who for twenty years,lived only a feAv hundred yards from Charlie Wilson. This person testified that it was always understood by every one in the neighborhood that Charlie had deeded the Avest forty to his Avife Lizzie, and that he suav the deed from Charlie to his wife, although he did not examine it-to see if it was signed.
Robert Bradford, another neighbor, testified that it was always understood that one forty “went for the mortgage ’ ’ and that the other forty was deeded to Lizzie, and that, on one occasion, Lizzie Wilson brought -a deed to him, Avhich she said Avas from Charlie, and asked him to take care of it for her, but he declined to do so, as he had no trunk, and his house had recently burned.
Rhoda Flanagan testified that she lived for years in a house facing the one in which Charlie lived and died, and that she saw and talked with him and his Avife Lizzie every day, and that, AAdren Charlie got sick, he sent for the-husband of .witness and told him that he had deeded the west forty, to Lizzie and had Lizzie to “give her old man the deed to keep for her,” and that her husband kept it for a good while, hut he gave it back to Lizzie after Charlie died.
Charlie Blackmore, another negro, gave testimony corroborative of the testimony recited, and.“Willie Wilson testified that, when his grandfather, Charlie Wilson, got so he couldn’t work the land, he executed a deed of trust to Young & Anderson, and later gave Lizzie Wilson a deed to the west forty. This deed was never recorded, but all the testimony makes it very certain that Lizzie Wilson claimed to own the west forty, and-was regarded by all the neighbors as being the owner thereof, and we think it is clear that, she occupied and claimed the land, not under her marital rights, but as the vendee of her husband.
We think it is also clear that both Charlie and Lizzie Wilson regarded Willie Wilson with the greatest affection, and, when Lizzie grew old, she deeded the west forty to him. This deed was executed May 6, 1922.
. The undisputed testimony shows that the land had but little value at the time of Charlie Wilson’s death, being worth only two or three dollars per acre, and that the west forty was less valuable than the other, as the improvements were on the east forty.
It is true also that Lizzie Wilson might have occupied this west forty as a homestead, but it does not appear that she did so. Her possession was of such a character that there would be no question about it being adverse to all the world, but for the fact that she could have occupied it as a homestead had she had no other right to its possession.
In the case of Brinkley v. Taylor, 111 Ark. 305, 163 S. W. 521, Brinkley owned an eighty-acre tract of land, on which he and his wife resided for thirty-five years, and, after Brinkley’s death, his wife claimed title to the land, not.under her dower rights, hut as owner. A portion of the land was divided into town lots and were s.old as such by Brinkley’s widow. The widow took no steps to have her dower assigned, but it is recited in the opinion that, '‘upon the contrary, she took possession of the entire tract under a claim of ownership, and sold a considerable portion of it.” We said that, notwithstanding Mrs. Brinkley entered upon the land without attempting to assert any dower right, her entry and the possession thereunder would not be held to be adverse if the proof did not affirmatively show it to be such. We also said that the widow’s possession would be presumed to be permissive, and not in hostility to the heir, unless that fact affirmatively appeared, but, as we found that the possession was adverse and hostile, we held that the widow had acquired the title.
In. the case of Watson v. Hardin, 97 Ark. 33, 33 S. W. 1002, it was said that the possession óf a widow is not hostile to the title of the heir, where the widow is entitled to the possession of land as her homestead, that she holds a life estate and the heir a reversion, and the possession of the widow is therefore not adverse to him, and that the general rule is that the statute of limitations does not run against á reversioner until the death of the life tenant.
In that case it was recited that, while in its inception the possession of the widow was not hostile to the heir, it was said that ‘tit is true that her claim and possession might have been of such a nature as to amount to an entire disseizin of the heir and an entire denial of his rights, so as to result in an acquisition of title by adverse possession; but, before' her possession could become adverse, it was necessary for her to first repudiate the title (of her husband) and to disavow any claim thereto as his widow; and it was also essential that notice of such disavowal by her of title as widow should be brought home to the heir.” But it was there also said that.the widow might acquire title by adverse possession against the heir if her disclaimer and hostile possession was so open and notorious as to raise a presumption of notice to him.
In the case of Wilson v. Storthz, 117 Ark. 418, 175 S. W. 45, the facts were that Storthz had acquired a deed from certain heirs, which made him a tenant in common with other heirs who did not convey and of whose existence he was in ignorance. In the suit by the cotenants to recover their interests in the land it was insisted that they were unaware of Storthz’s possession and that he g’ave them no notice thereof, but we said that Storthz was unaware of their existence, and could not therefore have given actual notice of his adverse holding, and that, when all the circumstances of that case were taken into account, there was such evidence of adverse holding as to meet the requirement of the case there reviewed, which discussed the conditions under which one, by adverse possession, might acquire title against his cotenants.
There was a similar holding in the case of Miller v. Chicago Mill & Lbr. Co., 140 Ark. 639, 215 S. W. 900, where the existence of a cotenant was unknown to the occupants, and we held that the occupants had acquired title by adverse possession against the unknown coten-ant because their possession had been so adverse and hostile and long continued as to impute notice of the adverse holding.
Charlie Wilson died in 1910, and his deed to Lizzie Wilson, if one was made, Avas executed some time prior to that year, the exact date not being shown by the testimony, and her possession was at all times open, continuous, notorious, and adverse, until a few weeks before her death, Avhen, on May 6,1922, she deeded the land to Willie Wilson, who continued this possession.
It is true the suit Avas begun by the collateral heirs of Charlie Wilson on March 5, 1923, and' Willie Wilson therefore had had possession under his deed for less than a year, but the combined possession of Lizzie Wilson and Willie Wilson covered a period of about thirteen years betAveen the date of Charlie Wilson’s death and the institution of the suit by the collateral heirs, and'the claimants through Fannie Watt did not become parties until June 13, 1925. There AAras therefore a period of about fifteen years.intervening between the death- of Charlie Wilson and'the assertion of-title by his granddaughter, Fannie Watt, who, during all that time, was sui juris. No actual notice could have been given to her of the adverse holding, because her existence was unknown,-but there was such adverse possession that notice thereof must be imputed to her.
It may be said, in this connection, that Fannie Watt did not testify in the case, and there is no affirmative showing that she did not have actual notice of this adverse possession. The only part taken by her in the litigation was to file a pleading designated as a “suggestion to the court,” in which she called attention to the fact that she had brought a suit in the Federal district court to cancel her deed to Clark, trustee, on the ground of fraud, and suggested that the present case should await the determination of that case. Refusing* to plead otherwise, the court ignored her “suggestion” and proceeded to a final determination of the case.
Of course, if Charlie Wilson executed a deed to Lizzie Wilson, this would be conclusive of the case, but, whether the execution of this deed has been shown with that degree of certainty required to prove the execution of a lost instrument or not, the undisputed testimony shows that Lizzie Wilson claimed that there was a deed, and held possession under this claim, and her adverse holding was known to every one familiar with the land or apparently interested in it.
The defense of laches is also interposed. Lizzie Wilson abandoned the home in which Charlie Wilson had lived and died. She moved on to the other forty, which was then worth only a few dollars per acre. She built her a residence there, cleared the land and fenced it, and for many years paid the' taxes, and no one questioned the title until oil had been discovered and the land had become enormously valuable. Twenty-two alleged transfers of the land were placed on record before any action was taken by Fannie Watt or her .trustee. Yery expensive litigation was prosecuted by more than forty separ ate claimants, which Willie’ Wilson was required to defend. Clark, as trustee, became a party with full knowledge of the history of the litigation and the history of the title, and with knowledge that Willie Wilson was in the actual possession under a deed 'of record from Lizzie Wilson.
Lizzie Wilson was an ignorant colored woman, and may not have known that it was necessary to record her deed, or ,she may have thought the land of so little value that no one would seek to disturb her, or that there was no heir of Charlie Wilson who could do so. However this may be, no attempt was made to assert title through Fannie Watt until Lizzie Wilson was dead and the testimony was thus lost which might have established the execution of the unrecorded deed from Charlie Wilson about which numerous witnesses testified, and, as was said in the opinion in the case of Clark v. Friend, “large sums of money . had been expended in developing oil before any one attempted to assert any rights through or under Fannie Watt. True, she knew nothing of the discovery of oil, but that fact proves only her indifference to her grandfather and to her inheritance. She, no doubt, would have continued inert and indifferent but for the discovery of oil, which resulted from the expenditure of the large sum of money always involved in such explorations and the diligence of’ appellant.”
We there quoted as follows from'the case of Avera v. Banks, 168 Ark. 718, 271 S. W. 970: “'There is no hard-and-fast 'rule as to what constitutes laches. It is well -settled that - la- -court of .equity may, in ■ the exercise of its own inherent powers, refuse relief where it is'sought after undue and unexplained delay, and where injustice would, be-done in the- particular case by granting the relief asked. It is usually said that the two most important circumstances in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and - cause a balance of justice or injustice in taking the one course or the other in so far as it relates to the remedy” (citing cases).
We think that doctrine is as applicable here as it was there, and that there is as much reason for holding the trustee barred by laches in the suit to recover the west forty as there was to so hold in the suit to recover the east forty.
We think the equity of the case is with appellee, and the decree of the court below is therefore affirmed. | [
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McHaney, J.
Appellant was charged by information with the crime of assault with intent to rape. Trial resulted in a verdict of conviction and he was sentenced to the penitentiary for three years.
1. For a reversal of the judgment, it is first insisted that the evidence is insufficient to support the verdict and judgment against him. In the recent case of Priest v. State, 204 Ark. 490, 163 S. W. 2d 159, we cited and quoted the statutes defining the crime of assault to rape, and fixing the punishment therefor, <§.<§, 3403 and 3407 of Pope’s Digest, and the cases of Begley v. State, 180 Ark. 267, 21 S. W. 2d 172, and Boyett v. State, 186 Ark. 815, 56 S. W. 2d 182. These and other cases hold that, to justify a conviction on such a charge the evidence must show not only that the defendant intended to have carnal knowledge of the female alleged to have been assaulted forcibly and against her will, but that he did some overt act toward accomplishment of his purpose which amounted in law to an assault upon her.
We think the evidence amply sufficient to take the case to the jury and to justify the verdict. That he intended to have carnal knowledge of the young woman was admitted by him and that he intended to do so forcibly and against her will, if necessary, was shown by her testimony and her outcries for help which were heard and testified to by the two witnesses in the factory nearby and who called the police. Also the two police officers who made the arrest found him on top of her with her begging him to quit and she was crying. This was an overt act toward the accomplishment of his purpose, but in addition he tore some of her underclothing from her person and bruised her legs by pinching them to force her to uncross them. The evidence was, therefore, sufficient to meet the requirements- of the rule.
2. It is next contended that the court erred in refusing to give his requested instruction No. 2 and modifying and giving as modified requested instruction No. 3. We think no error was committed in so doing. We do not set them out, for the reason we think that, in so far as No. 2 was correct it was covered by other instructions, and the modification of No. 3 was harmless. After telling the jury in No. 3 that the female must use all means in her power to prevent the assault and to repel it, it was modified by the court adding this proviso: “Unless she is put in fear of her life, or great bodily harm by the assailant.” It is said there is no evidence to sustain the modification, but there is. She testified that he pulled her hair, choked, pinched and slapped her. She also testified as follows: “He pulled me up and threw me down again. I was crying and he said, ‘ God damn you, I will kill you if you don’t let me do it.’ ” So, we think the modification was justified.
3. It is finally contended that the prosecuting attorney made prejudicial statements in his argument to the jury. We have carefully examined .the remarks assigned as error and we do not agree with counsel for appellant that they were erroneous or prejudicial. The remark of the prosecuting attorney to the effect that-the prosecuting witness was a virgin perhaps was improper testimony by him to this effect, hut it was not assigned as error in the motion for a new trial and cannot, therefore, be considered here.
Affirmed. | [
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Robins, J.
Sued by appellee in the lower court on a promissory note for $208.89 executed by appellant to the order of Dixie Aircraft School on November 3, 1941, and transferred by the said school to appellee, appellant defended on the ground that there was a failure of consideration of said note and that appellee was not an innocent holder thereof. At the conclusion of the testimony the jury, under instruction of the court, returned a verdict in favor of appellee for the amount- of the note. From judgment entered on the verdict this appeal is prosecuted.
The evidence showed that the note sued on was executed as payment in advance for the tuition and board of appellant’s son, who had engaged to take an “aircraft training course” at the Dixie Aircraft School located at Shreveport, Louisiana. The course was to begin on November 24, 1941, and the note, together with a cash payment of $15, was to pay for board and instruction in various kinds of aircraft repair and construction work over a period of six weeks. The note, payable in eleven monthly payments, beginning on January 24,1942, was sold, on November 21,1941, along with certain other similar notes, to appellee, a finance company, for the aggregate sum of $1,317.90, canceled check for which was introduced in evidence, and the note was duly indorsed “without recourse” to appellee by the payee, Dixie Aircraft School.
Shortly before the date on which the course of training was to begin the Dixie Aircraft School advised appellant’s son that it could not accommodate him at that time, but would do so later; and in a short time he was notified to enter the school on January 1st. In the meantime, however, he had obtained satisfactory employment, and, when directed by the school to report for instruction, he did not go. His reason for not doing so was thus explained by his brother, a witness for appellant: “Since they put him off this time he was afraid to quit his job because he didn’t trust them any more. . . . He had a better job than an aircraft job at that time.” He afterwards entered the navy and never reported to the school for the course of instruction.
The president of appellee testified that a valuable consideration was paid for the note involved, that it was purchased before maturity, after an investigation of appellant’s financial condition, and without any notice of failure of consideration or other defense on the part of the makers.
Assuming, without deciding, that there was such a failure of consideration as would have constituted a defense against the payee, there was no evidence whatever adduced to establish that appellee was not an innocent holder of the note for value. Evidence that appellee knew that the note was given for tuition in the aircraft school was not sufficient to apprise appellee of any infirmity in the paper or any defense to a suit thereon. Citizens’ Union Nat’l Bank v. Thweatt, 166 Ark. 269, 265 S. W. 955.
In Jones v. Green, 173 Ark. 846, 293 S. W. 749, we lield (Headnote 2): “One to whom a note, complete on its face, was transferred for value without recourse, without notice of dishonor, before it was due, or of any infirmity or defect, was an innocent holder entitled to recover thereon, though the makers received no value.” To the same effect is the rule laid down by this court in the case of Republic Power & Service Company v. Continental Credit Corporation, 178 Ark. 966, 12 S. W. 2d 906.
Section 56 of our Uniform Negotiable Instrument Act, which appears as § 10214 of Pope’s Digest, provides : “To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have liad actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.” This was the rule in this 'state prior to the enactment of the .Uniform Negotiable Instrument Act. Broadway Bank of Kansas City v. Mason, 176 Ark. 812, 4 S. W. 2d 5.
Tlie-consideration moving from the payee to makers of this note was the agreement on the part of the payee to furnish board and certain instruction to the minor son of appellant, one of the makers. This was a valid consideration, and though it might be said that there was a failure of consideration as between the original parties to the note such failure would not amount to a defense against one who was a holder thereof in due course, for value. Jones v. Green, supra.
The undisputed testimony shows that appellee in due course bought the note, paying a valuable consideration therefor, and that when ¡appellee thus became the' holder thereof the event upon which appellant bases his defense of failure of consideration (the aircraft school refusing to receive appellant’s son on the day fixed in the contract) had not occurred. Certainly it cannot be said that appellee, when it bought the note, had notice of a failure of consideration that had not yet taken place. There was no evidence indicating that appellee had any such knowledge of facts pertaining to the matter as would indicate bad faith on its part in buying the note sued on herein.
We conclude that the lower court correctly held that no valid defense to appellee’s suit on the note was shown by the testimony, and its judgment is accordingly affirmed. | [
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Smith, J.
The conflicting testimony as to the facts out of which this litigation arose is summarized in.the opinion on a former appeal in this case, Clift v. Jordan, 205 Ark. 245, 168 S. W. 2d 403.
The judgment in that case was reversed for the reason that a continuance should, in our opinion, have been granted on account of the absence of one Stiles, whose testimony was desired by appellant. We said in that opinion that there were also errors in some of the instructions, particularly as to the forms of the verdict to be returned, and the case was remanded for a new trial. At this trial, from which is this appeal, the witness, Stiles, appeared and testified, and the cause was submitted to the jury under instructions to which no objections are now urged.
The reversal of this second judgment is asked upon the ground that a verdict should have been directed for the defendant, the appellant here, and because of the action of the court in permitting the jury to amend the verdict first returned.
It was insisted upon the former appeal that the judgment should not only be reversed, but that the cause should be dismissed. We did not sustain that contention, for the reason that, in our opinion, a case had been made for submission to the jury, and the testimony on this appeal is not substantially different from that offered, at the first trial.
The cause was tried at both hearings upon the theory that the appellant’s truck had been stopped suddenly and without warning, or notice, that it would do so, and the instructions required the jury to find, before returning a verdict for the plaintiff, that this was true, and that this negligence was the proximate cause of the injury sued for. The testimony, as appears from the opinion on the former appeal, is legally sufficient to sustain this finding by the jury, which resulted in verdicts for the plaintiffs, and we, therefore, decline to dismiss the cause.
The verdict finally returned by the jury, upon which the judgment was rendered, from which is this appeal, reads as follows:
“We, the jury, find for all of the plaintiffs and assess their damages against the defendant, J. C. Clift, as follows:
“For F. D. Parker, Jr., the sum of ...•..................... None
For Norma Lee Walters, the sum of..................$ 100.00
For Ernestine Bailey, the sum of ........................ 100.00
For Laverne Crutchfield, the sum of............... 100.00
For W. H. Jordan, Administrator of the Estate of James Jordan, Deceased, the sum of .....:................................................................................. 1,150.00
For W. H. Jordan, Administrator of the Estate of James Jordan, Deceased, for the benefit of his father, the sum of......... 1,600.00”
It will be observed from this verdict, as was stated in the former opinion, that the administrator of James Jordan, who was killed in the collision with appellant’s truck, sued upon two causes of action, one being for the benefit of the estate of James Jordan, to compensate his pain and suffering after the collision until his death, which occurred two days later. The recovery on this account was for the sum of $1,150, and the testimony amply sustains that verdict, and would have sustained a much larger one. The second cause of action sued on by the administrator of James Jordan was for the loss of contributions to the father, who was the administrator of the deceased, and the recoveiy on this account was for the sum of $1,600.
Before the cause was submitted, the complaint had been amended to reduce the recoveiy sought on this account to that sum.-
• The verdict first returned upon the causes of action by the administrator read as follows:
“For W. J. Jordan, Admr. of the Estate of James Jordan, Deceased, the sum of......$ 250.00
For W. J. Jordan, Admr. of the Estate of James Jordan, Deceased, for the benefit of the father, in the sum of.............................. 2,500.00”
Upon the reading of this verdict the presiding judge remarked:
“Gentlemen of the jury, perhaps you all did not remember the sums, or the amounts that I gave you in the instructions. In your verdict for W. J. Jordan, administrator of the estate of James Jordan, deceased, you say the sum of $250. The sum the estate sued for was $20,500. For W. J. Jordan, administrator of the estate of James Jordan, deceased, for the benefit of his father, you say $2,500. They only sued for $1,600. Was the jury mistaken about any of these?”
A colloquy occurred between the court and the opposing counsel, after which counsel for the appellant asked that a mistrial be declared. The court asked if the jury had misunderstood the instructions, and a member of the jury answered, “Yes,” whereupon the cause was resubmitted to the jury, over appellant’s objections, for such corrections, if any, as the jury cared to make in their verdict, after which the jury again retired and returned with the verdict first herein copied.
This proceeding was unusual, but we are unwilling to say that it was so irregular as to constitute prejudicial or reversible error. Appellant insists that inasmuch as the first verdict returned for the benefit of the estate, which was by way of compensation for the pain and suffering, was for only $250, the second verdict on that account for the sum of $1,150 should be reduced to the extent of the .difference between these amounts. We are asked to reduce this judgment by the amount of this difference, which is $900.
It will be observed that the first verdict for the loss of contribution to the father by his son was for $2,500, which is $900 in excess of the amount sued for on that account, so that the net recovery for the administrator on both counts was the same in the two verdicts, but for different interests, their total in each instance being $2,700.
The verdicts of a jury should in any and all cases reflect the true and correct and final conclusions of the jury, and if before discharging the jury it was made known to the court that the jury had misunderstood the instructions, no error is committed in permitting the jury to further consider their verdict, after the instructions have been explained. Street v. Stuart, 38 Ark. 159. It was held in the case of Saxon v. Foster, 69 Ark. 626, 65 S. W. 425, that it was error to refuse to a jury permission to retire and reconsider their verdict, where, on hearing it read by the clerk, they state to the court that it is not their verdict. See, also, Levells v. State, 32 Ark. 585; Hamer v. State, 104 Ark. 606, 150 S. W. 142. There is an extensive annotation of this question in the case of Abraham v. Superior Court, 50 R. I. 207, 146 Atl. 617, 66 A. L. R. 533. The action of the court was authorized by § 1525, Pope’s Digest.
No error appearing, the judgment must be affirmed, and it is so ordered. | [
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Smith, J.
Plant brought a suit in ejectment against 'Johnson to recover possession of a lot in the city of Little Rock. He alleged a title based upon a tax sale to the state, which had been confirmed at the suit of the State.
Lenon, who had conveyed the lot to' Johnson, filed an intervention for the purpose of defending the title which he had conveyed. In his intervention Lenon prayed that the cause be transferred to chancery, and that motion was sustained. Upon motion of Plant the cause was transferred back to the circuit court, and from that order is .this appeal.
The appeal is premature and must be dismissed for that reason. It was held in the ease of Womack v. Connor, 74 Ark. 352, 85 S. W. 783, to quote the headnote, that: “An order transferring a cause from the chancery to the circuit court is not a judgment from which an appeal may be taken.”
The appeal must, therefore, be dismissed as having been prematurely taken, and it is so ordered. | [
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Griffin Smith, Chief Justice.
The right to close a road through lands within township fourteen north, range two west, in J ackson. County, is involved.
L. D. Pierce owns 1,300 acres, parts of which (at various points) adjoin some of the 1,200 acres owned by Jones.
The south half of section seventeen and the north half of section twenty, each traversed by Black River, are among the Jones holdings. The south half of section twenty belongs to Pierce.
Access to an old northeast-southwest dirt road along the river meandering through Jones’ property in sections seventeen and twenty was unobstructed prior to 1915. During 1915 Jones, who had just acquired the property, placed a gate at a point on his own land just north of where the road crosses the east-west median line dividing section twenty. Various transactions relative to this gate, and Jones’ action in closing it and in closing a second gate across the same road south of Black River in section sixteen east of the north-south boundaries between sections sixteen and seventeen, are more particularly shown in the footnote. '
The Chancellor declined to issue an order requiring Jones to restore the gates. Pierce has appealed.
There is little doubt that the road, with seasonal variations due to obstructions caused by high water, had been used generally for many years before Jones bought in section twenty. There is testimony that as early as 1892 a defined trail skirted the river, and that no affirmative objections were made by proprietors. It is also in evidence that the land was wild, its value in that state consisting of timber, and vegetation (grass, nuts, mast, roots, etc.) suitable for grazing.
If Pierce has right of access, it was acquired by prescription because he, with others of the public, used the way adversely for seven years. The case is controlled by intention coupled with conduct. If public use had been such as to justify reasonable minds in thinking the purpose was to disregard proprietary interests, or if acquiescence by owners became tantamount to dedication, the right to withdraw use would not be lost by acts of those in title who erected gates. An explanation on behalf of appellant is that partial obstruction was designed to enclose cattle in one area or exclude them from another, and had no reference to travel.
Prescription attaches where an owner has knowingly permitted the public to use the road for a period of seven years under á claim of right. The converse is that such right does not mature if travel has been by leave or through mistake. McCracken v. State, 146 Ark. 300, 227 S. W. 8, 228 S. W. 739. Where the public used a road through “open and'unfenced lands,” there having been no action of the County Court creating it, and there was no official attempt to work it or to exercise authority over it as a public highway, a presumption arose that use of the way was not adverse to the owner and that his consent would be implied. Brumley v. State, 83 Ark. 236, 103 S. W. 615; Merritt Mercantile Company v. Nelms, 168 Ark. 46, 269 S. W. 563.
So, here, (wild land being affected) it must be presumed that owner-consent had been expressly or im pliodly given prior to 1915 and that those accommodated by this privilege had no intention of challenging ownership. Such ownership — or, rather, the insignia of intent —was asserted when Jones erected a gate. If the public’s act of travel (presisted in for seven years or more) had not, prior to 1915, ripened into prescription, erection of the gate was an act of ownership. It was Jones’ notice to the public that he claimed a right to ■ do the thing no one then appears to have..complained of. That he and Pierce were in accord respecting the reason for building the gate is not controlling. The point is that conduct of the public — not the action or understanding of an individual — is the criterion.
The pronouncement in Porter v. Huff, 162 Ark. 52, 257 S. W. 393, was that the public, by acquiescing in the maintenance of a gate in circumstances somewhat similar to those disclosed by the record in this appeal, lost any right it ma^ have acquired through prescription. A statement in the opinion is:' “When appellee enclosed his land and placed gates across the .road, it was notice to the public that thereafter the}'- were passing through the land by permission, and not by right.”
In Mount v. Dillon, 200 Ark. 153, 138 S. W. 2d 59, it was held that “If the right was acquired by prescription, and abandoned as the Court found, the Court could not give appellee nor the public the right to travel it by prescription. ’ ’
It is not necessary in the instant case to say that a prescriptive right once acquired by the public could be destroyed by acts of Jones, .the landowner. Our holding is predicated upon the presumption that use of the wild land had been permissive — a presumption strengthened by failure of persons adversely interested to protest when private proprietary rights were, prima facie, exercised twenty-eight years ago and continued with but slight interruption until 1943.
Appellant points to the fact that Jones did not procure a County Court order permitting erection of the gates. Distinction between Act 74 of 1895 and Act 385 of 1937 is emphasized. The former afforded a method whereby landowners in overflow areas might, through petition to the County Court, procure a judgment authorizing construction of gates across “any public highway.” The 1937 enactment uses the words, “. . . across any road traversing such [overflow] lands.” It is urged that since the last Act substituted “any road” for “public highway” intention was to prevent landowners from obstructing private, as well as public, highways.
While the complaint mentions the public interest, gravamen is that the road was closed “against the will of the plaintiff.” The prayer was that Jones be restrained “from keeping said road closed and denying the use of it to the plaintiff. ”
Assuming general allegations that the road was unlawfully closed are sufficient to raise the question whether there was County Court consent, our opinion is that even though the statute be given the literal construction contended for by appellant, it affords no relief because the purpose, obviously, was to control roads in respect of which the public had a right through prescription, dedication, or otherwise. When Jones closed the gates in 1943, the public had no interest within the meaning of the Act.
Affirmed.
In addition to other lands, Jones owns the south half of sections sixteen and seventeen; the north half of section twenty; all of sections twenty-one and twenty-eight, and what appears from a diagram not drawn to scale to be the northeast quarter and the northwest quarter of the southeast quarter of section twenty-nine.
Included in lands owned by Pierce are the south half of section twenty; .the west half of section twenty-nine, and 36 acres in the east half of the southeast quarter and the southwest quarter of the southeast quarter of section twenty-nine.
Pierce Island is in the north half of section sixteen and is touched on the west by Black River which traverses section seventeen diagonally from northeast to the southwest extremities.
The Pierce home is on the. east side of his holdings.in section twenty-nine. The south of .sections twenty-eight and twenty-nine are touched by a gravel road to which Pierce has access, and westward at a point seemingly slightly past the center of the west half of section twenty-nine, this road turns due north, touching a point on the south side of section twenty. It then turns west and extends into séction nineteen where Pierce also owns lands, but the area in nineteen is not involved in this controversy.
Approximately 1,200 acres of Black- River lowlands are a grazing range, 500 being in sections seventeen and twenty. Those parts of the 500-acfe area in the south half of section seventeen and the north half of section twenty east of Black River are affected by the appeal.
During 1915 Jones built an east-west fence on the south side of his land in .section twenty, erecting a gate at the southwest corner. At that time the 1,200 acres of river bottom lands were used as a pasture. In 1943 Jones divided this.into 500- and 700-acre tracts, the purpose being to separate pure-bred and range-run cattle. A fence paralleling the boundaries between the north half of sections twenty and twenty-one and the south half of sections sixteen and seventeen joined the east-west fence which’divided the Jones and Pierce lands in section twenty. This fence extended northward to the river. Beginning near the southwest corner of the Pierce land in section twenty a dirt road meanders northward across the west end, then crosses the Jones land where the gate was erected in 1915. This road continues to skirt the southeast bank of Black River and intersects the north-south fence erected by Jones in 1943.
Pierce, owns an island in the north half of section sixteen and used the gTavel road and dirt continuation. His holdings in sections sixteen, nineteen, and twenty aggregate 1,300 acres; In addition, Pierce owns the Lockhart Ferry on Black River (section nineteen). The gate erected by Jones in 1915 was destroyed by overflow a few years later, but was rebuilt in 1929 by Pierce. In 1938 or 1939 it was rebuilt by Jones. When the new east-west fence which bisected section twenty was built in 1943, Jones decided to eliminate the gate. .This had the effect of blocking Pierce and others who desired to travel the so-called river road. A second gate near the northwest corner of the south hálf of section .sixteen had been maintained. It was also closed.
When Jones closed the road, Pierce asked for an injunction, claiming prescriptive rights. The object was to obtain a mandatory order to compel Jones to provide gates where the two had formerly been maintained. | [
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Smith, J.
A. A. Tarr and Cassie M. Tarr were married March 23, 1913, and lived together as husband and wife until March, 1940. They have a son, now 22 years old, who is their only child.
Mr. Tarr became a resident of Siloam Springs in this state on August 16, 1943, and on October 18 thereafter filed this suit for a divorce, and as ground therefor alleged that he and his wife had lived separate and apart for more than three years, without cohabitation.
Act 20 of the Acts of 1939, p. 38, amending § 4381, Pope’s Digest, makes this fact a ground for divorce, which, when established, entitles either spouse to sue for a divorce, and this without regard to the cause of separation. This Act provides that, “. . . The question of who is the injured party shall he considered only in the settlement of the property rights of the parties and the question of alimony.” That this Act means what it plainly says, whatever we may think of its policy, has been held in the ten cases cited in the recent opinion in the case of Young v. Young, ante, p. 36, 178 S. W. 2d 994. The still more recent case of Larsen v. Larsen, ante, p. 543, 181 S. W. 2d 683, is to the same effect.
The court found that the plaintiff had established this ground for divorce, and upon that finding a divorce decree was entered. The testimony sustains this finding, indeed, it is undisputed.
The wife filed an answer and cross-complaint, in which she denied that her husband was a resident of this state, and she prayed that alimony be allowed her. The wife is a non-resident of this state, and -was made a party defendant by the publication of a warning order. It was held in the case of McDougall v. McDougall, 205 Ark. 945, 171 S. W. 2d 942, that although the statute requires that the plaintiff in an action for divorce be a resident of this state for a designated time before suit is filed, the court has jurisdiction to grant a divorce and allow alimony on the cross-complaint of a non-resident defendant. It was held also in the case of Kennedy v. Kennedy, 205 Ark. 650, 169 S. W. 2d 876, a suit under our 90-day divorce law, that while filing a motion for suit money and alimony, and an answer to the complaint of the plaintiff, had the effect of entering the defendant’s appearance, it would not confer jurisdiction upon the court, if jurisdiction did not otherwise exist.”
The jurisdictional question, therefore, presents itself whether the plaintiff had resided in this state for a sufficient length of time to maintain this suit. The court held that he had, but it is insisted that this finding is contrary to the preponderance of the evidence.
It is undisputed that Mr. Tarr became a resident of this state more than 60 days before filing suit, but the insistence is that he did not maintain that residence until the time of the trial. Tarr had been and is now engaged in the real estate business in Kansas City, Missouri, operating there under the name of Tarr Land Company, and it was shown that on more than one occasion, after becoming a resident of this state, he had made trips to Kansas City; but it was shown also that these trips were never of more than a day or two in duration, and that after attending to the business which called him to Kansas City, he returned to this state, and it was not shown that during this time he maintained or had a residence in Missouri or elsewhere, except in this state.
We have consistently held that the residence required by our divorce law must be actual and not color-able, and in Kennedy v. Kennedy, supra, we said that the provisions of this law may be availed only by one who actually and in good faith became and was a resident of this state for the period of time prescribed by the statute ; but we have also held that this actual residence once established is not lost or destroyed by temporary absence from the state. Morgan v. Morgan, 202 Ark. 76, 148 S. W. 2d 1078, citing Wood v. Wood, 140 Ark. 361, 215 S. W. 681.
In the case of Murphy v. Murphy, 200 Ark. 458, 140 S. W. 2d 416, we said, quoting from the prior case of Carlson v. Carlson, 198 Ark. 231, 128 S. W. 2d 242, that our divorce law did not mean that the plaintiff should not at any time during the 3 months residence leave the state for any purpose, and that he might reside here as did any other resident; but it did mean that during all of this 3 months period, he must be a resident of this state,- and not of some other.
We think the testimony warranted the finding that plaintiff was a resident of the state for more than 60 days before filing his suit, and continued to be a resident until after the trial, which was more than three months after becoming a resident.
The court disallowed the claim of alimony, and did so upon the theory that at the time of the separation, the wife retained and converted to her own use property of the value which the law would otherwise have given her as alimony. It appears that just before the final separation Mrs. Tarr sold some cattle for about $400, as Mr. Tarr testified, but for $300, as Mrs. Tarr testified, and she converted the proceeds of the check given for these cattle: Mrs. Tarr testified that her husband was in the business of buying and selling cattle, and owned 300 head at one time, but he had sold these cattle until he had only 22 head when he deserted her. She testified that she had milked a number of the cows, and sold about $5 worth of milk a day, from the proceeds of which sale she paid the operating expenses of the household, and she refused to surrender the $300 check until her husband had replaced the cows for the sale of which the check had been given. She told her husband, “No, you are not going to get this check until you put more cows in here. You are not going to set me out on foot. When you get more cows in here you can have the check. ’ ’
Mrs. Tarr admitted that, when her husband deserted her, she retained possession of the household.goods, but these she says were of small value, and that she has no income and is living with her father, a man of small means and 90 years of age. We can readily believe that the proceeds of this check have long since been expended, as Mrs.. Tarr testified that she had a nervous breakdown.
In her original answer and cross-complaint, Mrs. Tarr asked an allowance of $40 per month as alimony, but in amended pleadings she increased this demand to $60 per month. Mr. Tarr testified that he employs four salesmen in his real estate business; that he pays the office rent, advertising charges and overhead expenses and gives them 50 per cent, of the commission on sales made by them, and in addition he himself makes sales without dividing his commissions. Mr. Tarr testified in effect that he is barely making both ends meet in the matter of his earnings and expenses, and that he is unable to pay any alimony; but we think his earnings in excess of his expenses are sufficient to pay his wife the sum of $40 per month, which she first demanded. We would allow a larger amount if his ability to pay justified, as we must take into account not only her necessity, but his ability to meet those necessities.
Act 20 of 1939, supra, denies us the right to inquire into the cause of the separation, but it does permit us to consider “the question of who is the injured party . . . in the settlement of the property rights of the parties and the question of alimony.” Mr. Tarr shows no ground for divorce except that by his voluntary act he has deserted the mother of his only son, and has lived apart from her without cohabitation for more than three years, and she is now dependent upon her aged father for support. Under the circumstances we think the original demand for alimony in the sum of $40 per month should be paid,- and the cause will he remanded with directions to modify the decree in this respect. | [
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McHaney, J.
Appellee brought this action against appellant to recover the sum of $45' due him for wages as a bricklayer for work done laying brick and repairing flues on the appellant’s passenger station in Fort Smith, and for the statutory penalty prescribed by § 9111 of Pope’s Digest for failure to pay said wages within seven days from the date of his discharge or refusal to further employ, October 18,1942. The evidence as to his employment is not in dispute. According to appellee he was a bricklayer and carpenter and ivas employed by appellant in September and October, 1942, and worked five or six weeks. He quit work of his own volition on October 18 to go on a mission of his own and was gone about three days. When lie returned the foreman told him “the work was practically completed and there was no neces sity for (Ms) going back to work.” At that time he had worked 30 hours at $1.50 per hour 'for which appellant owed him $45. He later signed some papers, at the suggestion of his foreman, but did not remember what the contents of the papers were. He directed that his check be sent to him at Fort Smith and called at appellant’s depot there on numerous occasions for the check, but it was never received.
■ Appellant’s answer admitted owing appellee $45 which it offered to pay, but denied liability for the statutory penalty on several grounds, some of which were that appellee was not an employee, but was a contractor in doing the masonry work for it; and that it did not discharge him or refuse further employment, as the job he was .employed to do was finished. A tender of $45 was made and refused.
Trial before the court sitting as a jury resulted in a judgment against appellant for $772. This appeal followed. i
Section 9111 of Pope’s Digest provides in substance that whenever any railroad company or any receiver thereof ‘ ‘ shall discharge with or without cause or refuse to further employ any servant or employee thereof,” the wages then earned shall be due and payable on that date, and the servant may request his foreman to have his pay sent to Mm at any station where a regular agent is kept, and if it is not so sent within seven days from the date of the request, then as a penalty for such nonpayment the wages of the employee shall continue from thé date of discharge at the same rate until paid. A proviso is that such wages shall not continue for more than 60 days, unless an action therefor shall be commenced within that time. Another proviso extends the act to cover all corporations and their employees.
In the case of Caldwell v. Mo. Pac. Ry. Co., 137 Ark. 439, 208 S. W. 790, it was said: “The instruction given at the request of appellee (that if the plaintiff ‘quit the service of the defendant your verdict will be for tlie plaintiff for $22.10,’ being tlie amount claimed for wages) is a correct declaration of law, because tlie statute is a penal one and its penalty is imposed only in favor of those who come strictly within its letter. The statute imposes this penalty where a corporation or company ‘ shall discharge, with or without cause, or refuse to further employ, any servant or employee.’ This language does not cover the case of one who voluntarily quits his employment.” In C., R. I. & P. Ry. Co. v. Russell, 173 Ark. 398, 292 S. W. 375, 51 A. L. R. 1206, where it was stipulated that plaintiff was not a regular employee of defendant, was employed by an engineer to watch an engine belonging to defendant, which engine and train were “tied up” at Calion on account of a traffic congestion at El Dorado, was hired to watch said engine until orders were received for it to proceed to El Dorado, and was entitled to receive a specified compensation per hour. Plaintiff requested his pay check be sent to him at El Dorado and it was promised'him it would be sent in seven days, but was not sent and suit was filed under said staiute to recover wages and the penalty. The court said: ‘ ‘ Construing this statute strictly, as we must do because of its penal character, it must be said that there was neither a discharge of plaintiff nor a refusal to longer employ him. Plaintiff was employed in an emergency, and he was not discharged. It was not contemplated that his employment would extend beyond the emergency.”
We think these cases are controlling here. Appellee was not a regular employee, but was- what might be termed an occasional or special employee. So far as the record discloses he had done work for appellant on two jobs only, one at the roundhouse, and the other at the station. He was not on the payroll of regular employees, was given no social security number and no deduction was made from Iris pay on this account. He was neither discharged nor refused further employment. . He quit work of his own accord to attend a funeral of a relative in another city and was gone three days. When he returned, the job he had been doing was so nearly com pleted Ms foreman told liim “there was no necessity for (his) going back to work.” In other words, he was hired to do a certain job and when the job was done his employment ceased with it. Not being an employee within the meaning of said statute, and not having been discharged or refused further employment, within its meaning, the statute has no application, and the court erred in holding otherwise.
' Appellant admitted that it owed appellee $45. It tendered that amount, but without interest, and it was refused. The judgment will be modified so as to exclude the penalty, and will be entered here for $45 with interest at 6% from October 18,.1942. Costs of the lower court will be assessed against appellant, but it will be allowed the costs of the appeal in this court against appellee. Section 2375,-Pope’s Digest; Williams v. Buchanan, 86 Ark. 259, 110 S.W. 1024. | [
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Smith, J.
Harold Warren Griffin and Callie Jones were married August 27,1938. He is now 27 years of age, and she is 23. They lived together as husband and wife, in Little Rock, until May, 1941, when they separated. They had at that time a boy child, named Harold Douglas' Griffin, 18 months of age. The husband filed suit for divorce on the ground of desertion, and prayed that the custody of the child be awarded him. He was granted a divorce November 10,1942, and the decree awarded the custody of this child to him. The decree-contained the recital, “That the defendant (the mother) is an unfit person to have the custody of said child and the custody of said child' shall be awarded to the plaintiff (the father).” The complaint filed in the divorce case contained no allegation as to the unfitness of the mother to have the custody of the child, and it is admitted that no testimony to that effect was offered in the divorce proceeding.
The husband was employed as a soda water dispenser and earned $15 per week. On account of his meager salary his wife also worked and her wages exceeded his.
It appears to have been agreed that a suit for divorce should be filed. Mrs. Griffin went on a visit to California to see her sister, residing in San Francisco, but became ill before reaching her destination. When she left she told her husband that she would be unable to care for the child and that if he was going to join the army she would be willing for some relative to have its custody. He accompanied his wife to the train when she departed, and stated “at the time she left we were still talking about going back together.” *•
After reaching California Mrs. Griffin signed an entry of appearance in the divorce case, and did not contest it, as she was without means, but she testified that she did not know that her lmsband had asked for the custody of the child. She knew that her husband had made an arrangement with her brother and sister to look after the child. Under this arrangement, her sister took charge of the child at the time of the separation, and the sister and her husband moved into Griffin’s home and shared equally, the rent and utilities. This arrangement continued for about a year, when Mrs. Griffin’s sister and her husband moved out, and her brother and his wife moved into Griffin’s home, and remained there under the same arrangement' as to the rent and utilities.
After the rendition of the divorce decree Mrs. Griffin met and married Victor Lewis West, Jr., Chief Yeoman in the United States Navy, whose salary is $170 per month. The father of this second husband is a banker residing in the State of New Jersey.
Mrs. Griffin, now Mrs. West, testified that it was agreed, when she left Little Rock where she and Griffin had lived together as man and wife, that if she remarried she might have the child; but this he denied. Mrs. West testified that she wrote her sister residing in Little Rock to ask Griffin for the child, and her sister wrote that Griffin agreed that she might have it, and immediately upon receipt of this letter she left her home in Seattle, Washington, where she then resided, to get her child. Griffin denied that he made this agreement, but Mrs. West’s sister testified that he did.
When Mrs. West arrived in Little Rock she found Griffin had taken the child to the home of his parents, who reside on a seven-acre farm near Mammoth Spring, in this State, and that the child had been there two or three weeks before her arrival in Little Rock. She thereupon brought this suit to- recover possession of the child.
The court found that there had been neither ■ allegation nor proof as to Mrs. West’s unfitness to have the custody of her child, and deleted that recital from the decree, and it was “ Considered, ordered, adjudged and decreed that the custody of Harold Douglas Griffin be vested in the paternal grandparents, Mr. and Mrs. W. W. Griffin, at Mammoth Spring, Arkansas, until the further orders of the court.”
Mr. Griffin, the grandfather, is 67 years old, and his wife, the grandmother, is 63. Her health is good but not vigorous. The grandfather testified that he and his wife were prepared to care for the child ánd were a-nxious for him to remain in their custody, as they were much attached to the child and he was contented to remain in their home.
This is not a case where a child has been permitted to remain in certain surroundings for a period of time long enough to become so accustomed to its surroundings as to make it unwise to remove it. We do not have here the situation that was shown in the case of French v. Graves, 205 Ark. 409, 168 S. W. 2d 1108, because this child had been with the grandparents only two or three weeks at the time of the rendition of the decree from which is this appeal.
It was said in the recent case of Myers v. Myers, ante, p.........., 179 S. W. 2d 865, that: “While there is continuing authority in the court granting a decree of divorce to revise or alter orders contained in such decrees affecting custody and control of the minor children of the parties, such orders cannot be changed without proof showing a change in circumstances from those existing at the time of the original order, which changed circumstances, when considered from the standpoint of the child’s welfare, are such as to require or justify the transfer of custody from one parent to the other (Citing-cases.) ”
It will be remembered that this is not a case in which the court reaffirmed its order awarding custody of the child. That order was modified in the decree from which is this appeal and the child’s custody was awarded to persons who were not parties to the original proceeding and are not parties to this proceeding. We think this was error. This order was, no doubt, intended to be provisional and temporary, as Mr. Griffin testified that he was taking' training' to prepare himself for special work overseas, and tliat he would leave for this service as soon as he had completed this training. He admitted also that he contemplated remarrying before going overseas, if so, he would, no doubt, expect the reclelivery of his child when he returned from his service overseas, so that the child would then be taken from the custody of its grandparents, if not he would have no right to take the child from its mother and give it to its grandparents. Baker v. Durham, 95 Ark. 355, 129 S. W. 789.
It is a tragedy in the life of any child whose parents separate and are divorced. In these circumstances the courts should be and are greatly concerned about the welfare of the offspring. Verser v. Ford, 37 Ark. 27. It is not then so much what would be best for the child, which would be the reconciliation of the parents, but if that does not occur — and we cannot order it — the question then is, what would be least detrimental to the child, where neither parent is shown to be unfit- to have the. custody of their child, as is true here.
The child is still of tender years and needs the care, affection and attention of one parent, if it may not have that of both. The father is about to go overseas, and the time of his return is, at least, indefinite, while the mother will remain in this country, although not in this state, and the court may, and upon the remand of this case, will retain jurisdiction thereof, for the purpose of making any future order which any change of condition may require.
There is no fact or circumstance in this record which indicates that the mother abandoned the child, or that she ever at any time ceased to be interested in its welfare. After her separation she was unable to support herself and the child from her own earnings, and she testified that the arrangement with her former husband was that the child should be left in the care of her people until she remarried. Griffin denied the existence of this agreement, but the fact is undisputed that the child did remain first with the mother’s sister and her husband, and later with her brother and his wife, until two or three weeks before the hearing from which is this appeal.
Mrs. West testified that her husband has a salary of $170 per month, plus the usual commutations allowed by the Navy, and that she herself is employed by the Western Union Telegraph Company, at a salary of $30 per week. But she offers, if the court requires, to abandon her employment and devote her entire time to the child. She testified, however, that she has a comfortable apartment, and a maid who would attend the child; that the child would have better educational advantages than he would have with Ms grandparents; that she is a church member, and would see that the child had a Christian environment. She further testified that she could have no other children, a fact known to her present husband; that he was willing to take the child into Ms home, and would adopt it if permitted to do so. When Mrs. West came here she expected to get her son and return at once, but when its grandparents refused to surrender the child to her,' she advised her husband, who directed her to remain here and see the matter through, and this she did.
We have had many cases on this subject, but the facts in no two of them are exactly alike, and there are frequently misgivings' as to the appropriate order to make concerning the custody of a child whose future has been jeopardized without fault of its own. In this case we have concluded that, due regard being had to the rights of the respective parents, the best interests of the child suggest that its custody be awarded to the mother, and the decree of the court below will be reversed and the cause remanded, with directions that appropriate orders to that effect be made. Gibson v. Gibson, 156 Ark. 30, 245 S. W. 32. | [
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Holt, J.
May 25, 1943, John Temple Donnell died testate. On October 6th following, appellee, The College of the Ozarks, filed petition for probate of a certain typewritten instrument, alleged to be the last will and testament of John Temple Donnell. Appellant, Sue Donnell Anthony, a niece of Mr. Donnell, filed a response contesting the probation of the instrument. Upon a hearing, the trial court found the instrument in question to be the valid will of John Temple Donnell, and from the judgment admitting it to probate, comes this appeal.
The question for determination here is: Was the instrument in question executed and attested in the manner provided by statute, and, therefore, a valid will?
Section 14512 of Pope’s Digest provides: “Every last will- and testament of real or personal property, or both, shall be executed and attested in the following manner, First. It must be subscribed by the testator at the end of the will, or by some person for him, at his request. Second. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses. Third. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his, will and testament. Fourth. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator.”
While the instrument in question makes a specific bequest in favor of appellant, the amount she would receive would be much larger in case this instrument should be held invalid.
The alleged will, omitting parts not material here, is as follows:
(The body of this instrument, except the signatures) is all in typewriting.)
(On the Letterhead of:)
“OZARK LUMBER COMPANY
“ Jno. T. Donnell, Proprietor,
“Ozark, Arkansas.
“November 27,. 1931.
“This is a changing world, and I find that I change with it. At one and another time I have made and had witnessed papers that I called my will — what I would have done with what was said to belong to me at the time that I did die. Every thing in every one of those papers is here and now set aside, except the parts that express my admiration to the God of the Universe. Those statements, I see no good reason now to change, and do not in any wise seek to change them.
“God has been good to me and every little while I find some evidence that proves that He is good. He has taken good care of me through all the years that I have lived. And having been born at Lebanon, Tennessee, on August 19,1864,1 have already lived a long time.
“When I am gone I want the one who is named, by me later, or by the State or my kin folks, to first pay every just claim that I may leave unpaid: Then pay as follows— . . . (Plere follows a number of bequests)
“After the above clevises have been made any thing that I may die possessed of, notes, accounts, houses and lands is to go to the'College of the Ozarks at Clarksville, Arkansas, for tlie furtherance of the work of educating young men and young women, and fitting them to fill such places as God may assign them to in the world.
“I have nothing but the best of feeling toward all mankind, and the above is made with charity and love toward all men.
“And of the above named ones who may die before me, his or her part is to go into the amount that the College of the Ozarks is to get.
“Signed this clay, November 27, 1931.
“(Signed with pen) Jno. T. Donnell
“Witnesses: (Signed with pen)
“D. B. Anderson
“L. M. Guthrie.”
The cause was submitted on the following agreed facts: “First: That John Temple Donnell died on the 25th clay of May, 1943, while a resident of the Ozark District of Franklin county, Arkansas. Second: That after tlie death of the said John Temple Donnell there was found among his papers tlie instrument now offered by the petitioner, The College of the Ozarks, for probate as the last will and testament of him, the said John Temple Donnell. Third: That the signature, ‘Jno. T. Donnell,’ appealing upon said instrument is in the handwriting of the said John Temple Donnell; and that Jno. T. Donnell and John Temple Donnell-are one and the same person. Fourth: That on the 27th clay of November, 1931, the said John Temple Donnell was above the age of twenty-one years. Fifth: That the .name ‘D. B. Anderson,’ appearing upon said instrument is in the handwriting and is the signature of said D. B. Anderson, who was on the 27tli day of November, 1931, a resident of Ozark, Arkansas, and was above the age of twenty-one years, but is now deceased. Sixth: That the affidavit of K M. Guthrie, who was on said 27th clay of November, 1931, a resident of Ozark, Arkansas, and was at said time above the age of twenty-one years, and whose signature also appears on said instrument herein offered for probate, may be read in evidence by either party as a deposition herein, said affidavit being hereto attached. Seventh: That the respondent, Sue Donnell Anthony, is a niece and heir at law of said John Temple Donnell, and if said instrument is not admitted to probate as the last will and testament of said John Temple Donnell, will b'e entitled to and will receive one-half of his estate, which interest will far exceed in value the sum of one hundred ($100) dollars. Eighth: That these stipulations, together with said affidavit and the instrument herein offered for probate, shall be and constitute the entire evidence herein. ’ ’
The affidavit of Guthrie is as follows: ‘ ‘ Comes now the affiant, L. M. Guthrie, who first being duly sworn, upon oath. states: My name is L. M. Guthrie, I am 80 years of age and am a resident of Ozark, Arkansas, where I have resided for the past 29 years. I was personally well acquainted with John T. Donnell, who departed this life on the 25th day of May, 1943. There has been exhibited to me a certain instrument in writing dated the 27th day of November, 1931, and purporting to have been signed by Jno. T. Donnell and witnessed by D. B. Anderson and myself. I recall the time when I signed this instrument and the circumstances of my signing-same. The said Jno. T. Donnell, who is one and the same person as John Temple Donnell, came to my office by himself and asked me to sign the paper as a witness. I did not read the instrument thus presented to me, but signed same and then asked him if this was his will and he said that it was. He did not sign the instrument in my presence. Nothing was said at the time whether he had signed it, and nothing was said about his signature. The said D. B. Anderson was not present when I signed the instrument, and I was not present when he signed it, if he did sign it, and did not see him sign it. The said D. B. Anderson is now dead.
“I have no interest in the probate of the last will and testament of the said John T. Donnell, and make this statement for the purpose of explaining my signature to the instrument now shown to me, and to explain the facts and circumstances surrounding my signing same. I have never signed any other paper for said. Jno. T.' Donnell as a witness to his last will and testament. (Signed) L. M. Guthrie, Affiant.”
In determining whether the instrument here in question was the valid will of Mr. Donnell, certain undisputed facts should be borne in mind: The instrument was written on a typewriter, on one sheet of paper, containing the letterhead of Mr. Donnell. 'Mr. Donnell’s signature on the instrument, and that of the two subscribing witnesses, D. B. Anderson and L. M. Guthrie, are genuine. All'. Donnell was of legal age, mentally competent, and there is no claim or suggestion even, of fraud in connection with the preparation and execution of the instrument, and there is no contention that it does not fully and clearly express Mr. Donnell’s intention. Witness Anderson died prior to the trial below.
It will be observed that the statute, supra, requires that a will (1) must be signed by the.testator at the end or by some one at his request. It is conceded that the testator complied with this provision. The statute further requires (2) that such subscription either be made in the presence of the attesting witnesses or acknowledged to them by the testator to have been so made, and (3) at the time of signing or acknowledging, the testator shall declare the instrument to be his last will and testament.
It is our view, and we hold, that under the facts presented here, the effect. of -the testator’s actions amounted not only to a substantial compliance with the statute, but a literal compliance therewith. When he presented the instrument to the witness, Guthrie, it was for the purpose of securing Guthrie’s signature as a witness, not to the will, but as a witness to his, Donnell’s, signature on the will. When Guthrie signed the will as a witness, Mr. Donnell told him that the instrument was his will. It could not have been his will without his signature being on it at the time, and while Mr. Donnell said nothing about his signature, the presumption is, in the absence of proof to the contrary, that his signature was on the will when he presented it to Guthrie. Guthrie does not say that Donnell’s signature was not on the instrument at the time he, Guthrie, signed as a witness. Guthrie testified that Mr. Donnell came to his office “and asked me to sign the paper as a witness,” and while he states that he did not read it, he does state that he signed it. As above indicated, the statute required him to sign as a witness to the testator’s (Donnell’s) signature. He was not witnessing the will. It was not read to him, and indeed it was not necessary that it be read to him, or that he know its contents. As indicated, the presumption is, in these circumstances, in the absence of contrary proof, that the testator’s signature was on the will at the time Guthrie signed. Donnell’s statement to the .witness, Guthrie, that the instrument was his will, on the facts here, was an acknowledgment to his, Donnell’s subscription to the will and a compliance with the statutory requirements (2) and (3), supra.
“No formal or precise method of acknowledging the signature, the will, or the instrument, is necessary, . . . Exhibiting the instrument with testator’s signature thereon, and referring to it as testator’s will, amounts to an acknowledgment of the signature. . . The testator may acknowledge his signature by his acts and gestures, without making any express acknowledgment of the signature in words. If, without referring to such instrument as his will, the testator produces it with his signature visible, and requests yftness to sign it, this is a sufficient acknowledgment.” Page on Wills, Lifetime Edition, page-627, § 348.
In one of our earliest cases, Rogers, et al. v. Diamond, 13 Ark. 474, this court said: “It is believed that if the statute were to receive a strict, instead of liberal construction, but few wills could be sustained. Many persons, from various and sometimes peculiar motives, are averse to have the contents of their will known -even to witnesses of their own selection, and would seek to evade the whole policy of the statute of wills, by gifts mortis causa, and secret conveyances to operate as wills in disguise. The policy of the statute is to guard against frauds in the execution of wills, so' often made under circumstances when the testator is liable to be imposed upon, or unduly influenced. . . The statute says he shall declare it; but in Remson v. Brinkerhoff, 26 Wend. (N. Y.) 325, 37 Am. Dec. 251, Nelson, C. J., said that no particular form of words is necessary, and that it would be unwise, if not unsafe, to speculate upon the precise mode of communication, as every case must depend upon its own peculiar circumstances. The fact of publication, therefore, is to be inferred or not, from all' the circumstances attending the execution of the will. ’ ’
The applicable rule, as stated in 68 C. J., 982, § 749, is as follows: “No presumption of the due execution of a will arises from the mere production of an instrument purporting to be a last will and testament. . . Where, however, in proceedings for the probate of an instrument as a will it appears to have been duly executed as such, and the attestation is established by proof of the handwriting of the witnesses or otherwise, although their testimony is not available, or they do not remember the transaction, it will be presumed, in the absence of evidence to the contrary ^ that the will was executed in compliance ■with all the requirements of law, including those relating to publication, attestation in the presence of the testator, and the affixing of the testator’s signature prior to those of the witnesses. ”
While the instrument here contains no formal attestation clause, and it is conceded that the attesting witnesses did not sign in the presence of each other, appellant concedes that these formalities are unnecessary to t lie validity of a will.
In Evans v. Evans, 193 Ark. 585, 101 S. W. 2d 435, this court quoted with approval from 68 C. J., 1021, § 804: “While under the wording of, and construction placed on, the statutes in a majority of jurisdictions, it is necessary to produce and examine the full number of witnesses required by law to attest a will if they are alive, sane, and within the jurisdiction of the court, at least where the will is contested, and a like rule obtains in a suit in equity to establish a will, it is not essential that clue execution of tlie will be proved or established bailie-testimony of all or any of the subscribing witnesses so produced and examined. Execution may be sufficiently proved where one witness testifies positively to the requisites of execution, and another does not recollect, or denies some of the requisites. ’ ’
The judgment is affirmed. | [
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Smith, J.
A. J. Cypret, doing business as the Cypret Motor Company, sold an automobile to Earl Mabe, and in part payment thereof took a note dated February 24, 1941, from Mabe, payable to the Bank of Thayer, Missouri, for the sum of $243.93, payable in eleven equal monthly installments, and to secure this note Mabe. gave a mortgage to the bank on the automobile and on a horse and a cow. The motor company financed most of its credit sales of cars through this bank, which credited purchase money notes for cars to the motor company’s account, with the understanding that any notes not paid by the purchasers of the cars should be repurchased bji the motor company.
As an incident'to the sale of the car Mabe made application on the day he signed the note above mentioned to the National Mutual Casualty Company for insurance on the car, on-which application an insurance policy was issued, which recited that the “coverages afforded” were “The interest of Bank of Thayer, or assignees thereof, herein called the ‘named insured’ in the automobile described in the policy designated above is insured against loss or damage, hereinafter called loss, caused by fire or theft occurring while the automobile is in the lawful possession of the purchaser or borrower under a conditional sale; mortgage, lease or lien agreement. ’ ’ Liability under the policy was limited to any balance due on the note above- mentioned. The policy required proof of loss to be made within 60 days after its occurrence.
Within about a month after the policy was issued, Mabe disappeared, and with him went the automobile, and nothing was heard of him until some time in August, 1941, when he was arrested at Flagstaff, Arizona, and returned to Fulton county, where the mortgage was of record, and there placed on trial for removing mortgaged property from the state. The record does not show the disposition of this case, or what became of ■ Mabe after his trial.
On April 21, 1941, the cashier of the bank wrote the insurance company a letter advising that Mabe had left Fulton county where the sale of the car was made, and had taken the car with him and that “They are on the hunt for him and the car.” It is undisputed that this letter was written within less than 60 days after Mabe’s • departure. The receipt of this letter by the insurance company is not denied, but its reply thereto is not in the record, but subsequent correspondence between the insurance company and the bank, and its attorney, makes clear the fact that the. insurance company at all times denied liability under the policy. The letter, above referred to apparently justified that position, as the policy did not insure against an unlawful disposition of the car by Mabe.
It appears that when Mabe left Fulton county in the car, about one month after the insurance policy had been written, he carried a suitcase with him, and that he had a collision with another car near Waynesville, Missouri, in which his own car was severely damaged. He was arrested by the state police of Missouri for driving in an intoxicated condition, and was placed in jail, where after being confined for a few days he was released from custody. It is not shown what disposition was made of the charge upon which Mabe was arrested. The police had the car towed to Waynesville where it was placed on a vacant lot used by the Bell Garage Company in connection with its business, but the owner of this lot assumed no responsibility for the car.
Cypret was advised by Mabe’s father of the wreck of the car, and he went to Waynesville to recover it, but was unable to locate it; Cypret learned at Mabe’s trial in Fulton county where Mabe had left the car, and he again went to Waynesville, where he procured an affidavit from one Swanson, an employee of the Bell Garage Company,, dated September 2, 1941.
Mabe made default in the payments due on his note, and Oypret was advised of that fact, whereupon, in accordance with the arrangement under which the bank handled the motor company’s paper, Oypret paid the note and took an assignment thereof and of the mortgage and policy, and this suit was filed in the name of Mabe and the motor company against the insurance company to collect the insurance. Mabe was made a party plaintiff, but by what authority is not shown, as he did not appear at the trial-.
The cause was tried by consent before the court, sitting as a jury, and an opinion was prepared by the court containing findings of fact, upon which a judgment was rendered against the insurance company for the amount of the note, which, according to the testimony, was less than the value of the car, and from that judgment is this appeal.
Several errors are assigned in the motion for a new trial for the reversal of this judgment. The first and most important question in the case is the one of fact, whether the car was stolen by someone other than Mabe. It is conceded there can be no recovery on the policy unless the showing was made that some person, other than Mabe, had stolen the car. If the showing was made, it is unimportant that the testimony does not - show who the thief was. This proposition is sustained by the opinion in the case of National Surety Co. v. Fox, 174 Ark. 827, 296 S. W. 718, 54 A. L. R. 458.
The court found, and we think the testimony is sufficient to support the finding, that when Mabe was released from jail in Waynesville, he left that community and was never seen in that neighborhood again, and when first heard from thereafter he was in Arizona, and there was no testimony that he went there or left Waynesville in his car.
Error is assigned in the refusal to exclude the affidavit of one Swanson, an employee of the Bell Garage Company, as to the disappearance of the car from the storage lot. A copy of this affidavit was sent to the insurance company, and it was competent testimony on the issue whether proof of loss had been made. It was not competent to show how the car disappeared, as it was merely an ex parte affidavit. However, one Hendry, another employee of the Bell Garage Company, did testify that after the car had been in storage on the lot for about four weeks it disappeared one night. The court below found, from this testimony, that someone other than Mabe had stolen the car, and we are unwilling to say this inference might not have been deduced from the fact that Mabe had not been in that vicinity for several weeks before the disappearance of the car.
It is urged that the judgment should be reversed for the reason that proof of the theft of the car was not made within 60 days after the occurrence of that event. It will be remembered, however, that within less than that time the bank notified the company that both Mabe and the car had disappeared, and again on August 13, 1941, the bank wrote the insurance company that Mabe' had been located in Arizona, but that the car had not been found. To this letter the insurance company replied, denying liability under the policy, on the ground that a man could not steal his own car. Later the cashier of the bank wrote the insurance company a letter bearing date of September 27, 1941, advising that another, and not Mabe, had stolen the car. To this letter the manager of the claims department of the insurance company replied: ‘ ‘1 have been trying my best to advise you that yon had no claim under our policy in this matter. To make it definite please be advised that we are denying any and all liability on this claim. ’ ’
Now, the affidavit of Swanson was not competent evidence at the trial that someone other than Mabe had stolen the car, but it was competent to show that the insured was advising the insurer of the theft. The objection to its admission was, therefore, properly over ruled. St. Louis, I. M. & S. Ry. Co. v. Hendricks, 48 Ark. 177, 2 S. W. 783, 3 Am. St. Rep. 222; Bodcaw Lumber Co. v. Ford, 82 Ark. 555, 102 S. W. 896. When the insurance company definitely denied liability, the necessity for further proof was dispensed with, so far as meeting the requirement of the policy that proof of loss be furnished within 60 days.
This affidavit of Swanson was prepared as soon as the information contained in it was obtained, and was furnished the insurer within less than 60 days after Cypret was advised as to the circumstances under which the car had disappeared. The insurance company might have required more definite information, but instead of doing so it denied any liability under the policy, and that action dispensed with the necessity of further proof. Mechanics’ Ins. Co. v. Inter-So. Life Ins. Co., 184 Ark. 625, 43 S. W. 2d 81. See, also, Arlotte v. National Liability Ins. Co., 312 Pa. St. 442, 167 Atl. 295, 108 A. L. R. 901, and the many'cases there cited, including a number by this court.
The competent testimony of Hendry that the car was removed from the storage lot during the night lends support to the finding of the court that Mabe did not remove it. No one questioned his right to the possession of the car, and it was not necessary for him to recover his possession surreptitiously and at night. The car had not been abandoned, it was on a lot used for storage purposes and it was constructively, at least, in Mabe’s possession, or in the possession of the Bell Garage Company for him. The-garage company claimed no interest in the car, although it might have made some charge for storage. .
It is insisted that the motor company has no right to collect insurance on the policy for the reason that it is a single interest policy, insuring only the bank. Two answers may be made to this contention. The first is, the policy covered “The interest of Bank of Thayer, or assignees thereof,” and the motor company is the assignee of the bank. The second answer is, that the assignments of the note for purchase money, the mortgage se curing it, and the policy itself, were not made until after the loss had occurred. Cypret had indorsed the note of Mabe to the bank, and he was therefore liable as an indorser, and that indorsement was made good when he paid the note to the bank, thereby being subrogated to the rights of the payee. Briscol v. American So. Trust Co., 176 Ark. 401, 4 S. W. 2d 912.
But, be that as it may, in the case of Planters’ Nat. Bank v. Lawrence County Bank, 176 Ark. 228, 2 S. W. 2d 704, it is said: “This court has held that the right of action on an insurance policy is assignable under our statute, and that a clause in the policy against assignment without consent of the company applies only to assignments during the lifetime of the policy, and not to an assignment of liability which has already accrued under the policy. McBride v. Aetna Life Ins. Co., 126 Ark. 528, 191 S. W. 5, and Garetson-Greason Lbr. Co. v. Home Life & Accident Co., 131 Ark. 525, 199 S. W. 547. To the same effect see Mosaic Templars of America v. Hearon, 153 Ark. 568, 241 S. W. 35, 27 A. L. R. 1147, where it was held that, unless a contract of insurance contains a restriction concerning assignments, an insurance policy may ordinarily be assigned in any form recognized by law, even by oral assignment. ’ ’
It is finally insisted that there can be no recovery on the policy because the fact is undisputed that the notice to the insurance company that the car had been stolen was not given until more than 60 days after that event occurred. But it is also undisputed that notice was given within less than 60 days after that information was obtained. A statement supporting this contention appears at § 1507, Couch’s Cyclopedia of Insurance Law, Vol. 7, p. 5386. But a different view is expressed in § 1111, Vol. 29, Am. Jur., p. 834, where it was said: “Want of Knowledge of Event Upon Which Policy Is Payable.— It is generally held that provisions requiring the insured to give notice or furnish proofs of loss do not apply until the insured has knowledge of the loss. Thus, notice under a liability policy need not be given until after the insured has-knowledge that an accident has occurred. Likewise, the requirement of an indemnity policy that immediate notice be given of any default is satisfied where notice is given as soon as knowledge is obtained, and the employer need not act on mere suspicion.” Many cases on the subject are cited in the annotator’s note to the case of Clements v. Preferred Accident Ins. Co., 76 A. L. R. 81, which note is continued in 123 A. L. R. 966.
We think this latter view is more consonant with reason and justice and the purpose of procuring the insurance. Notice was promptly given that the car had disappeared, but notice that it had been stolen could not be given until that information had been obtained. Notice of the mere suspicion or belief of the insured that the car had been stolen would have served no purpose, and would have been ignored, but the insurer was advised when the facts became known and within less than 60 days of that time.
The trial judge found that the car had been stolen by someone other than Mabe, and we are unwilling to say that the testimony is not legally sufficient to support that finding, and the judgment must, therefore, be affirmed, and it is so ordered. | [
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Griffin Smith, Chief Justice.
Jewell J. Diggs obtained judgment against Kansas- City Southern for $25,000. On appeal conditional affirmance became final when the appellee entered a remittitur for $7,500. Inter est of $813.49 accrued, in consequence of which the obligation amounted, to $18,313.49 when the Railroad Company tendered payment. It withheld $1,856.90 covering miscellaneous advances from September, 1939, to July 22, 1941.
Except as to a $10 payment made October 19, 1940, and $100 advanced December 2 of the same year, Diggs executed similar receipts — •there having been twenty-six separate transactions. The acknowledgment covering twenty-four payments is copied below. In respect to the two payments as to which receipts differed from others, variance consisted of omission of the second paragraph, beginning with “I further agree. . . .”
The Railroad Company’s draft for $16,456.59, payable jointly to Diggs and his attorney, was accepted with protest, insistence being that the claim was res judicata. Pope’s Digest, § 1416, fourth paragraph. On petition of the payer, Circuit Court enjoined claimant from having execution issued for the balance. Abe Collins (Diggs’ attorney) intervened. This appeal is from the injunction.
Two questions are presented: (a) Was res judicata ' a tenable plea? (b) Were the receipts ambiguous?
Appellant’s original suit was filed August 7, 1941— two years after the injury.. Collins’ contract of employment (which provided for a contingent fee of fifty percent) was executed July 30, 1941 — eight days after the last advance was made. The attorney testified he did not know of his client’s financial transactions with the Company.
If it be conceded that the receipts lack word harmony in that they refer to “loans” instead of “advances,” still the further condition is that repayment shall be from any sum due Diggs “. . . through settlement or otherwise . . . [on account of the tort].”
The test would seem to be whether (had Diggs failed in his primary suit) the Company could have maintained an action against him for the money. If so, the sums were loans repayable in any_ event and the' Company should have pleaded them. Appellee contends it had no cause of action when Diggs ’ suit for damages was filed, hence it could not undertake to set-off against the plaintiff the several items advanced — because, in the first place, there was a denial of negligence and consequently the plea of non-liability. Secondly, if it be anticipated that liability would be fixed, the right of set-off arose when judgment was returned.
The statute requires a defense, in answering, to set out “. . . as many grounds of defense, counterclaim, and set-off ... as he shall have.” But, before a counterclaim or set-off can be pleaded it must exist. If the money supplied be adjudged advances chargeable only against what the Company might subsequently concede it was due Diggs, arrived at “by settlement or otherwise,” it could not have been pleaded until settlement had been made; or (considering the word “otherwise”) until judgment. Not until then was there a principal against which the amounts could be offset.
When draft for $16,456.59 was tendered, the intervener — who prior to that time, but not before suit, knew of the advances — had an opportunity to decline indorsement until the sum due under the contract of employment had been paid. We do not decide whether, in the circumstances of this ease, appellant was entitled to fifty percent of $18,313.49, or only half of $16,456.59. An inter-plea (or independent action) before the money was distributed would have established rights between attorney and client.
What we do decide is that Diggs was not deceived by language used in the receipts. The mere fact that his unfortunate financial status was such that the Company was morally moved to make advances for his maintenance is an implied answer to the question whether there should be repayment in any event. We do not think this was contemplated. The thought may be pertinent that the Company was not acting from an altruistic standpoint. Certainly its agents, taking a practical view of the matter realized the probability of judgment. It is infer-able there was hope that by “nursing” the case along a favorable settlement could be made.
Regardless of motivation, result was that Diggs received substantial benefits he should not be permitted to disavow by placing upon the receipts a construction neither he nor the Company thought of when necessities of the patient (who was in a hospital at DeQueen when the first advance was made) prompted the arrangement.
A final argument is that because the second paragraph of the contract-receipt did not appear in the advances of October 19 and December 2, there is clearly an unconditional obligation to repay. This would be true if it were not so clear that these transactions were a part of the general purpose. Improbability that a different contract was intended affecting these items is so great that the suggestion is without substantial value as an inference.
Affirmed.
Diggs, whose injuries disabled him, was making monthly payments of $18.04 on a truck. The Railroad Company’s claim agent testified that it was agreed $40 per month should be advanced for living expenses, in addition to the truck payments. Diggs’ family consisted of a wife and six dependent children.
“. . . I, Jewell J. Diggs, have this day received from the Kansas City Southern Railway Company $58.04 as a loan to me from said company; and it is agreed and understood that said loan is in no wise to be considered as an admission of liability on the part of the Kansas City Southern Railway Company, its agents, servants, employees, or representatives for any injuries claimed by me to have been sustained at or near mile post 438 on or about August 8,1939, or at any other time or place.
“I further agree that in the event this case is disposed of this amount of $58.04 shall be deducted from the amount which may finally be determined, either by settlement or otherwise, that I am entitled to receive from the Kansas City Southern Railway Company on account of such injuries.”
Diggs’ contract was with Collins alone. Collins, in turn, employed Johnson & Johnson to assist him, they to he compensated by Collins.
Civil Code §§ 116 and 117 were amended by Act 267, approved March 21, 1917. The new enactment substituted “may” for “must.” The change is of no importance in the instant case. | [
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McHaney, J.
This is a snit in ejectment, brought by appellant against appellees for the possession of lot 6, block 1, Park Place addition to Ft. Smith, Arkansas. He deraigned title from a deed of the Commissioner of State Lands to him, dated September 22,1942, which was based on a forfeiture and sale to the state in 1938 for the delinquent taxes thereon of 1937, and a decree of confirmation of the state’s title on March 14, 1942. The amount of the taxes, penalty and costs for which it was forfeited and sold was $11.70.
The answer denied all material allegations of the complaint and alleged the deed to appellant is void because appellees had paid a part of the 1937 taxes, up to and including March 23,1937, to the State Treasurer and the Commissioner of State Lands acknowledged' such payment as of said date, and the sale to the state was for the full amount of said taxes yvhich was for an amount in excess of the taxes due; also that two items of costs charged were illegal. Other defenses were set up which, it was alleged, avoided the confirmation decree.
The case was tried before the court on an agreed statement of facts and the pleadings, which resulted in judgment for appellees. This appeal followed.
There is no bill of exceptions in the record. The agreed statement of facts is not before us and cannot be considered for any purpose. We have many times held that the mere filing with the clerk of an agreed statement of facts does not make it a part of the record. It must either be brought into the record by a bill of exceptions, or it must be incorporated in the judgment itself, before this court can consider it. The judgment of the court in this case does not incorporate the agreed statement and, there being no bill of exceptions, we must assume that the judgment of the court is correct. Ashley v. Stockard, 26 Ark. 653; First Nat. Bank v. Thompson, 124 Ark. 161, 186 S. W. 826; Satterfield v. Loupe, 160 Ark. 226, 254 S. W. 489; Great Southern Fraternal Union v. Stroud, 169 Ark. 509, 275 S. W. 753.
Affirmed. | [
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McFaddin, J.
The parties were married in 1912 and lived together as husband and wife until sometime after 1939. Appellee (the husband) filed suit for divorce alleging that he had lived separate and apart from his wife for three consecutive years without cohabitation. Appellant (the wife) resisted the divorce on three grounds, .being: (1) deliial of bona fide residence in Arkansas of the.husband; (2) cohabitation within three years, and (3) recrimination by the husband. The chancery court entered a- decree awarding the husband a divorce; and from that decree comes this appeal raising the issues hereafter mentioned.
I. Bona Fide Residence in Arkansas. The 'complaint was filed on March 4, 1943, and our statute (§ 4386, Pope’s Digest) requires the plaintiff to prove “a residence in the state for three months next before the final judgment granting divorce in the action and a residence of two months next before the commencement of the action.” To prove bona fide residence, the appellant testified that he came to Craighead county, Arkan sas, November 29, 1941, and had resided there continuously since said date, except for trips to Memphis to see a physician and trips to Illinois and Texas to look after his properties' in those states. He testified at various, times, the last being two days before the decree; and he made good his proof of bona ficle intent to establish a residence in Arkansas, because he showed, inter alia, that: (a) he registered for the United States Selective Service before the local draft board at Jonesboro, Arkansas; (b) his food rationing book and his gasoline rationing book (under the war measures of the United States Government) was each issued by the Ration Board of Craighead county, Arkansas; (c) he obtained automobile and driver’s license for both 1942 and 1943 in Jonesboro, Arkansas, and stated his residence at those times to be Jonesboro, Arkansas; (d) he assessed and paid 1942 property taxes at Jonesboro, Arkansas; (e) he assessed and paid a 1942 poll tax at Jonesboro, Arkansas; and (f) he showed rent receipts on apartments in Jonesboro, Arkansas, from November, 1941, to the time of the trial in October, 1943. These items mentioned, together with other facts in the record, afford ample proof of a bona fide intent to establish residence in Arkansas; and the testimony of appellant’s witnesses did not destroy the preponderance in favor of appellee on this matter of bona fide residence.
II. Cohabitation Within Three Years. The husband-filed this suit under subdivision seven of § 2 of Act 20 of 1939, which makes, as ground for divorce, the fact that the plaintiff has lived separate and apart from the defendant for three consecutive years without cohabitation. The husband testified that he left his wife in February, 1940; and he was supported by other witnesses. The wife, who testified July 27; 1943, said it had only been two and one-half years, at the time of testifying, since the husband ceased to occupy the marital bed. She was supported by some of their children in this testimony'; but she was unable to fix any definite date. When asked to fix the last night Mr. Young stayed in the home with her she said: “I think he was there since my daugh ter, Evelyn, was married. Evelyn was married three years in April and I think he’ was out there since that time.” The uncertainty of the date is mentioned, because there are documents in the record which, with other evidence, place the preponderance with the husband on this question. We refer to these documents now:
On February 14, 1941, in the circuit court of Marion county, Illinois, the appellant (wife) filed a suit against her husband (appellee here) for separate maintenance; and in this she alleged, inter alia:
“That on April 12, 1913', the plaintiff was lawfully joined in marriage with the said defendant and thereafter maintained conjugal relations with him until February, 1940. . . .”
She further alleged:
“That in or about the month of February, 1940, said defendant, without any provocation or justification, quitted and abandoned the matrimonial home heretofore maintained with plaintiff . . . and from said date, although often requested to do so, has refused to reside with plaintiff.”
And again she alleged:
“That in the month of February, 1940, defendant wilfully deserted and absented himself from plaintiff completely without any reason, just cause or provocation and from that date hitherto has persisted in such desertion and plaintiff, without fault on her part, is now living separate and apart from the defendant.”
Thus, in three specific allegations in the complaint for separate maintenance, Mrs. Young fixed the date of separation as February, 1940; and elsewhere in the complaint (filed February, 1941) alleged that the separation had existed more than for one year. On that complaint, in the separate maintenance suit, a property agreement was made and a decree entered which makes it -unnecessary to consider property matters in this divorce case. But the fact remains that in February, 1941, Mrs. Young, through her attorneys, had alleged that the date of sep aration was February, 1940. The facts were more recent and the dates more easily recalled in 1941 than when she testified in the case at bar in 1943. In the case at bar, when she was asked about the allegations in the complaint fixing the date of separation at 1940, this occurred:
“Q. Now, Mrs. Young, did Mr. Pfaff (her attorney in the separate maintenance suit) read this complaint to jrou before it was filed? A. I suppose he did. I guess he did but I don’t remember.”
So without reviewing all the evidence on this point we conclude that the decree of the chancery court finding that the separation began February, 1940, is supported by the preponderance of the evidence.
III. . Recrimination. In her answer herein Mrs. Young stated that Mr. Young had been living in open adultery with a paramour, and therefore the court of chancery should be closed to him under the equitable maxim, “He who comes into equity must come with clean hands,” or expressed another way, “He that hath committed iniquity shall not have equity.” This defense, of refusing relief to the guilty in a divorce suit, is known in our jurisprudence as the defense of recrimination; and under that name we will refer to it in this opinion. Legal historians trace its legal inception to the Roman law wherein it was called “ compensatio criminis.” 27 C. J. S., p. 624. On motion of Mr. Young the chancery court ordered the defense of recrimination stricken from the answer, thereby holding that recrimination was no defense in a divorce action brought under the three-year separation statute. That ruling is now assailed by Mrs. Young.
The divorce statute here involved is subdivision seven of § 2 of Act 20 of 1939 and reads: “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 he considered only in the settlement of property rights of the parties and tibe question of alimony.” (Italics our own.) It will be observed that in the italicized portion of the act the Legislature has eliminated all consideration of which spouse is the guilty party, except in settling-property and alimony rights. -Since these rights are not involved in this case, the result here is that the court is forbidden to consider which is the guilty party. In other words, recrimination is abolished as a defense under this three-year separation statute. Section 4389 of Pope’s Digest recognizes recrimination as a defense, and we have sustained the defense of recrimination in cases involving other grounds of divorce. Wilson v. Wilson, 128 Ark. 110, 193 S. W. 504; Landphair v. Landphair, 112 Ark. 608, 165 S. W. 960; Malone v. Malone, 76 Ark. 28, 88 S. W. 840; Cate v. Cate, 53 Ark. 484, 14 S. W. 675; 19 C. J. 93; West’s Ark. Digest “Divorce,” Key No. 52 to 55.) But under this three-year separation statute recrimination is abolished as a defense against that particular ground of divorce, for the act, as copied above, specifically says that the question of who is the injured party is not to be considered.
The Legislature — not the 'Court — determines the grounds for, and the defenses against, divorce: because divorce is always regulated by statute. In the case of Bowman v. Worthington, 24 Ark. 522, this court said: “The -circuit courts of this state, sitting as courts of chancery, have jurisdiction of all cases of divorce and alimony by virtue of the statute. The court, in cases of this kind, must look to and be governed by the statute; it has no other powers than those expressly conferred, and while it may sit as a- court of chancery, it is not to be understood as exercising- inherent chancery powers, but as a court limited and guided by express statutory provisions, over a subject-matter never belonging to chancery jurisdiction. It is then the circuit court, invested expressly by statute with authority to investigate and try cases of this kind by rules of proceeding- adopted and practiced by courts of chancery.”
And in the case of Ex parte Helmert, 103 Ark. 571, 147 S. W. 1143, this court said: “Matters pertaining to divorce and alimony were originally of ecclesiastical cognizance, but in this country they have always been regulated by statute, and the courts generally have looked to the statutes as the source of their power. Bowman v. Worthington, 24 Ark. 522; Cizek v. Cizek, 69 Neb. 797, 96 N. W. 657, 99 N. W. 28 (5 Ann. Cas. 464); Barker v. Dayton, 28 Wis. 367; 1 Bishop on Mar. & Div., § 1400; 14 Cyc. 581-2; 1 Pomeroy, Eq. Jur., §§ 98, 112, 171; 3 Pomeroy, Eq. Jur., <§§ 1120-1299.”
Divorce has always been a matter of statutory determination. In 17 Am. J. 150 it is stated: “In this country it is the province of the legislatures of the several states to regulate the subject of divorce as applied to their citizens and persons domiciled within their jurisdiction. The power of the legislature over the subject of marriage as a civil status and its dissolution is unlimited and supreme except as restricted hv the Constitution. ’ ’
And in 27 C. J., § 15, p. 536, it is stated: “Where a statutory ground of divorce is plainly shown' to exist, the court has no discretionary right to deny a divorce, except, of course, where a proper defense is established.”
So it is clear that divorce is a statutory matter and the Legislature has a right to establish the grounds and conditions of divorce; and the act here involved clearly abolished recrimination as a defense against three-year separation.
IY. Constitutionality. The appellant contends that this act, abolishing recrimination as a defense, is unconstitutional, as impinging upon equity jurisdiction; and invokes the rule that the jurisdiction of equity courts, as that jurisdiction existed at the time of the adoption of the constitution of 1874, can neither be enlarged nor diminished by the Legislature, 'citing some of these cases : German National Bank v. Moore, 116 Ark. 490, 173 S. W. 401; Gladish v. Lovewell, 95 Ark. 618, 130 S. W. 579; Hester v. Bourland, 80 Ark. 145, 95 S. W. 992; Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C, 980; Wilson v. Lucas, 185 Ark. 183, 47 S. W. 2d 8. The rule announced in these cases is contrary to the law in most other jurisdictions. See 30 C. J. S. Equity, § 8, p. 325, and 19 Am. J. 46. We recognize that the jurisdiction of our courts of equity (as the jurisdiction existed in 1874) can neither be enlarged nor restricted. But there is a distinction between (1) jurisdiction and (2) grounds for the exercise of jurisdiction. This distinction disposes of any question of constitutionality.
That equity courts had jurisdiction of divorce cases prior to the adoption of the Constitution of 1874 is clear. Under Chapter 51, § 3 of the revised statutes of 1837 it was provided: “The circuit court, sitting as a court of chancery, shall have jurisdiction in all matters of divorce . . .” And in the Civil Code of 1869 it was provided in § 456: “The action for divorce shall be by equitable proceeding.” See § 4380 of Pope’s Digest. So at the time of the adoption of the Constitution of 1874 the courts of equity had jurisdiction in matters of divorce, but the courts of equity only had such jurisdiction as the Legislature had conferred, and the courts of equity exercised that jurisdiction upon the grounds that were, from time to time, determined by the Legislature — since divorce is a creature of the statute as heretofore discussed.
That the Legislature does not restrict the equity jurisdiction of the court when the Legislature prescribes the conditions under which such jurisdiction may be exercised was decided in Marvel v. State, ex rel. Marrow, 127 Ark. 595, 193 S. W. 259, 5 A. L. R. 1458. There, the Legislature had passed an act authorizing the chancery court to abate as a nuisance any place where intoxicating liquors were sold. The statute was attacked as conferring additional powers on the chancery courts. This court upheld the statute in the face of this attack and said:
“The act in question has not conferred upon the chancery courts of this state any additional jurisdiction. It has merely prescribed a new condition upon which this ancient jurisdiction may be exercised. The act is remedial in its nature and, while the Legislature can not enlarge or restrict the jurisdiction of chancery courts, it is entirely within the province of the Legislature to prescribe the procedure for the exercise of this jurisdiction and to prescribe new conditions under which that jurisdiction may be exercised. The Legislature has not conferred the jurisdiction upon the chancery courts to abate public nuisances. This jurisdiction they have always had.
‘ ‘ The jurisdiction of all 'the courts is fixed by the Constitution as appears from the above-cited cases. But this jurisdiction may be applied to new conditions if the Legislature so elects.”
And in Rogers v. Carson Lake Road Imp. District, 191 Ark. 112, 85 S. W. 2d 715, there was involved a statute authorizing the court of chancery to appoint a receiver for a road improvement district, and this statute was attacked as enlarging the power of the chancery court. The statute was upheld, and the court used the following language: “True, we have consistently held since Hempstead & Conway v. Watkins, 6 Ark. 317, 42 Am. Dec. 696, that the Legislature is without power to add to, limit or abridge the jurisdiction conferred on chancery courts or circuit courts acting as such by the Constitution of this state. See Hester v. Bourland, 80 Ark. 145, 95 S. W. 992; Gladish v. Lovewell, 95 Ark. 618, 130 S. W. 579; Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C, 980; German National Bank v. Moore, 116 Ark. 490, 173 S. W. 401; Wilson v. Lucas, 185 Ark. 183, 47 S. W. 2d 8. But we have never held that, where the subject-matter was within chancery court’s ancient jurisdiction, the Legislature was without power to regulate the exercise thereof. In fact, we expressly decided to the contrary in Marvel v. State, 127 Ark. 595, 193 S. W. 259, 5 A. L. R. 1458.” And to the same effect see, also, Dickinson v. Mingea, 191 Ark. 946, 88 S. W. 2d 807.
It, therefore, follows that the court of equity had the right to grant divorce prior to the Constitution of 1874 on grounds and conditions prescribed by the Legislature ; that the Legislature, at various times from 1874 up to the present, has altered and amended the grounds of divorce and tlie conditions upon which divorce might be granted; that none of these amendatory acts increases or diminishes the jurisdiction of the chancery court, but merely prescribe new conditions upon whieh the jurisdiction may, or may not, be exercised; and that all of this is entirely constitutional.
While we as individuals may personally disapprove of the grounds of divorce as fixed by the Legislature and may view with alarm the passage of such a law as the one in question which is tending to make our. state a haven for unfaithful spouses, still as judges we must remember that the divorce laws are made by the Legislature and until , the Legislature repeals these laws the courts must interpret them in the words and spirit written. If appellant’s argument about the unconstitutionality of the act in question were sound, then every divorce would be illegal that had been granted for any cause added to the statute since 1874. We have repeatedly held that the Legislature has the right to alter and amend the divorce laws and have repeatedly granted divorces for grounds added to the statute since 1874. Jones v. Jones, 199 Ark. 1000, 137 S. W. 2d 238; Goud v. Goud, 203 Ark. 244, 156 S. W. 2d 225; Brooks v. Brooks, 201 Ark. 14, 143 S. W. 2d 1098; Clarke v. Clarke, 201 Ark. 10, 143 S. W. 2d 540; McCall v. McCall, 204 Ark. 836, 165 S. W. 2d 255. Some of these cases caused strong dissents and bitter concurrences, but it was recognied that it was the duty of the judiciary to respect the policy determined by the Legislature, its co-ordinate branch.
The decree of the chancery court was correct, and is in all things affirmed.
The Chief Justice concurs in part. | [
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McHaney, J.
Appellants are seven fire insurance companies which had policies of insurance covering either the building or the stock of merchandise or both owned by appellee in Amity, Arkansas, and which property was destroyed by fire about 12 o ’clock on the night of April 26, 1943.
Appellants not having paid appellee the amounts covered by their several policies after notice, proof of loss and demand, he brought separate actions against them and the Merchants & Planters Bank & Trust Company, hereinafter called the Bank, on September 14,1943, to recover judgments against the several appellants for the amount of their several policies, and for penalties and attorneys’ fees. The Bank was made a defendant because appellee had borrowed money from it and some of the policies had mortgage clauses attached in favor of the Bank and other of the policies had been assigned by appellee to it. Appellants defended the actions on two grounds.: 1. That appellee failed to comply substantially with the Record Warranty Clause in each of the policies; and 2, that fraud was practiced on them by appellee in procuring insurance on the building and the stock of merchandise in excess of their-actual value.
The cases were consolidated for trial which resulted in verdicts and judgments against appellants for the amounts sued for, with penalty and attorneys’ fees, and this appeal followed.
Four questions are argued by appellant for a reversal of the actions: 1. Failure to comply with the Record Warranty Clause; 2. Fraud practiced on appellants in over-insuring the property; 3. Error in giving appellee’s instructions 1 and 2; and 4. Refusal to transfer to equity and consolidating cases for trial*.
1. The Record Warranty Clause, attached to each of the policies, required appellee to make an inventory and keep a record of his purchases and sales which would at all times reflect the amount of stock on hand and to keep such records in a fireproof safe at night, or in some secure place not exposed to a fire which would destroy the building. Failure to comply with such clause is a good defense, but is an affirmative one and the burden is on appellants to show non-compliance. Mutual Fire Ins. Co. v. Stuckey, 85 Ark. 33, 106 S. W. 203. Our statute, § 7721, Pope’s Digest, provides that “proof of a substantial compliance with the terms, conditions, and warranties of such policy” shall be sufficient to entitle the insured to recover in an action on a policy of fire insurance. In Merchants Ins. Co. v. Barton, 182 Ark. 725, 32 S. W. 2d 1069, we held that a substantial compliance with the Record Warranty Clause was all that is required under said section,' and that said clause was complied with where an inventory was taken within a year, and a set of books, such as merchants usually keep was kept. Also that where duplicate invoices were substituted for ones which were destroyed by the fire, there was a substantial compliance. We there cited Queen of Ark. Ins. Co. v. Malone, 111 Ark. 229, 163 S. W. 771 and Royal Ins. Co. of Liverpool v. Morgan, 122 Ark. 243, 183 S. W. 198.
Here appellee produced his inventory of January 1, 1943, taken four months before the fire, and procured duplicate invoices of goods purchased for the originals destroyed in the fire and this was a substantial compliance with said clause in these respects. Appellee’s record of sales consisted of sales slips made each day, but these were destroyed in the fire, but he produced duplicate deposit tickets, showing his deposits in appellee Bank from cash sales from his feed store in Amity. These tickets did not show on their face that they were deposits from the Amity store, but appellee testified that he took the cash and checks from sales made each day to the Bank, received duplicate deposit tickets from the Bank and kept them in a separate place from his deposits from his other business in Arkadelphia. A book was kept at his home in which he kept his credit sales. As we understand it appellants concede that this was a proper record of credit sales, and that if a daily memoranda of cash sales had been entered therein, a substantial compliance with the Record Warranty Clause would have been shown. If, therefore, the duplicate deposit tickets had been pasted in that book, instead of keeping them in his office in Arkadelphia, why would this not have been' a substantial compliance ? And if that would be sufficient, why was it not sufficient to have them séparate and apart from other slips showing deposits to the same account in his office? We think the records produced sufficient to take the question of compliance to the jury which was submitted in instruction No. 7 given at appellants’ request. Queen of Ark. Ins. Co. v. Malone, supra; Mutual Fire Ins. Co. v. Stuckey, supra.
2. As to the question of fraud practiced in procuring an excessive amount of insurance on both the building and the stock, each of the policies provide that: “. . . this entire policy shall be void if the insured, has concealed or misrepresented in writing or otherwise any material fact or circumstance concerning this insurance or the subject thereof — or in ease of any-fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after the loss.”
Appellants contend that through fraudulent representations by appellee to their agents he procured insurance on the building and stock greatly in excess of their actual value and,.after the fire falsely claimed there was a large amount of stock in the building in excess of the amount destroyed, and that he moved practically all the merchandise out of the building prior to the fire.
At the time of the loss, April 26, 1943, appellee had $2,000 insurance on the building and $7,000 on the stock of merchandise. We find no evidence in this record that
, at the time these policies were issued, appellee made any representations to the agents of appellants, as to the value of the merchandise or the building, nor is there any evidence in the record that he moved practically all the merchandise out of the building prior to the fire, except there is some testimony of witnesses that shortly before the fire the stock seemed to be depleted. This testimony about the depletion of the stock was disputed. No witness testified that appellee removed any of the stock.
The inventory of stock taken January 1, 1943, which was exhibited to the adjuster for appellants and at the trial, is said to be false and fraudulent because, it is contended, the amount of merchandise shown thereon could not have been put in the building and leave room for aisles and office' space so that it could be sold. The inventory showed stock of $8,271.64; purchases from January 1, to April 26, as shown by duplicate invoices, amounted to $8,279.55; sales as shown by deposit tickets in the Bank, and credit ledger sales during the same time, and cash on hand amounted to $7,845.55, from which an estimated profit of 15% was deducted and the remainder deducted from the amount of the inventory and sales left $9,882.47 as the actual inventory as qf April 26,1943. Now the jury, in response to a special interrogatory propounded to them at the request of appellants found that the value of the merchandise on hand on the date of the fire was $9,800. But appellants say this amount is demonstrably' false as no such amount of merchandise could have been put in a building which was 60 ft. long, 20 ft. wide by 10 ft. high, unless taken out of the sacks and poured in the building. But appellants have not shown by demonstrable evidence that it was physically impossible for the claimed amount of merchandise to have been in the building at the time of the fire. Hence, we cannot say, as a matter of law, that the claimed amount of merchandise wasiiot in the building. We think it was a question- of fact for the jury as to whether he had the amount of stock he claimed and its finding is conclusive here. In other words, we are unwilling to hold as a matter of law that a fraud was practiced on appellants. The insurance on the building was $2,000. This amount is said to be excessive, not for the purpose of defeating a recovery merely because overinsured, but as a further indication of fraud which would defeat recovery under the clause above quoted. We think this was also a question of fact for the jury.
3 and 4. Appellants argue that error was committed by the court in giving appellee’s instructions 1 and 2 and in refusing to transfer to equity. We have carefully considered these assignments and find them without substantial merit. We think no useful purpose could be served by discussing them in detail and to do so would unduly extend this opinion.
We find* no error and the judgments are accordingly affirmed. | [
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McFaddin, J.
This appeal involves the Missouri statute for wrongful death and our enforcement of the same. •
The appellants here were the plaintiffs below. Their pleadings alleged that on January 15, 1940, Mrs. Margaret Wheeler became a passenger on a bus of the Southwestern Greyhound Lines, Inc., from New York City to Little Rock, Arkansas; that on January 17, 1940, the bus on which Mrs. Wheeler was riding crashed into a building in St. Louis, Missouri, and Mrs. Wheeler was thereby injured; that the Southwestern Greyhound Lines, Inc., was negligent in the operation of the bus and in lack of attention to Mrs. Wheeler; and that she died in Little Rock, Arkansas, on February 4, 1940, survived by her husband, Joe Wheeler, and her children, Melbourne Aiken, Charles Aiken and Lucille Aiken Thines, all of whom joined as plaintiffs. The injury, resulting in Mrs. Wheeler’s death, occurred in the state of Missouri. The complaint was filed in this case January 31, 1942; and against the complaint, and amendments thereto, the defendant (appellee here) filed a demurrer which was sustained by the circuit court. The plaintiffs refused to plead further; and from a judgment dismissing the complaint and amendments this appeal followed, challenging the correctness of the court’s ruling. We hold that the action of the trial court was correct.
I. At common law there was no right of action for wrongful death, and whatever right now exists is a right created solely by statute. Earnest v. St. Louis, M. & S. R. R. Co., 87 Ark. 65, 112 S. W. 141; Anthony v. St. Louis, I. M. & So. R. R. Co., 108 Ark. 219, 157 S. W. 394; Smith v. Missouri Pacific R. R. Co., 175 Ark. 626, 1 S. W. 2d 48; 48 Am. Jur. 35, 38 and 39; 25 C. J. S., § 13, p. 1072. ,
II. An action for wrongful death is based on the statute of the place where the injury occurred that caused the death, that is, the lex loci delicti. Earnest v. St. Louis, M. & S. Ry. Co., 87 Ark. 65, 112 S. W. 141; Tipler v. Crafton, 202 Ark. 351, 150 S. W. 2d 625; 15 C. J. S. 899; Leflar on “'Conflict of Laws,” § 79. In the case at bar the injury causing the death occurred in Missouri, so the Missouri law governs. Midland Valley Ry. v. Le Moyne, 104 Ark. 327, 148 S. W. 654; American Ry. Express Co. v. Davis, 152 Ark. 258, 238 S. W. 50, 1063.
III. We take judicial notice of the laws of other states (§ 5119, Pope’s Digest); so we know judicially that in Missouri there is only one'cause of action for wrongful death. Earnest v. St. Louis, M. & S. Ry. Co., 87 Ark. 65, 112 S. W. 141. And the cause of action is contained in §§ 3652 to 3656, inclusive, of the Missouri Revised Statutes of 1939, which are the same sections as 3262 to 3266, inclusive, of the Missouri Revised Statutes of 1929. In Tipler v. Crafton, 202 Ark. 351, 150 S. W. 2d 625, we set out certain of the statutes; and there has been no change in these Missouri statutes since that-decision. Section 3656 of the 1939 statutes of Missouri reads: “Every action instituted by virtue of the preceding sections of this article shall be commenced within one year after the cause of action shall accrue. . . .”
In Cummins v. K. C. Public Service Co., 334 Mo. 672, 66 S. W. 2d 920, the Supreme Court of 'Missouri said: “It is required by § 3266 of the Revised Statutes of 1929 that every action for wrongful death ‘shall be commenced within one year after the cause of action shall accrue.’ ”
So we reach the conclusion that under the Missouri statute for wrongful death, the action must be commenced within one year from the accrual thereof: that is, the date of death. See Goldschmidt v. Pevely Dairy Co., 341 Mo. 982, 111 S. W. 2d 1. The deceased was injured January 17, 1940, and died February 4, 1940. No action was commenced until January 31, 1942; so the action was barred under the Missouri statute.
IV. The period of limitations (one year) contained in the Missouri statute is a part of the law governing the cause of action and must be enforced in this state. Earnest v. St. Louis, M. & S. Ry. Co., 87 Ark. 65, 112 S. W. 141; 25 C. J. S., § 28,, p. 1100. In the treatise on the Conflict of Laws by Robert A. Leflar, it is stated in § 79 thereof:
“The existence and character of a cause of action for wrongful death are for the most part governed by the same principles that apply to other torts. No cause of action for wrongful death exists save as it is created by the law of the place where the tort occurred, and it is the cause of action there created which must be sued upon at any place where action is brought. This is true both as to the amount recoverable and as to who is entitled to take beneficially the amount recovered. Even the statute of limitations of the place of the tort, if incorporated into the Death Act itself, is governing, the rule in this respect being different from that for ordinary torts. The reason given for this is that the cause of action for the period limited in the governing act is the only cause that exists. ’ ’
And in § 181 of the same volume it is said:
“There is one well-recognized exception to the general rule that statutes of limitation are procedural. When a statute which creates a new type of right specifies that the existence of its new creation shall continue only for a limited length of time, there is no existent .right beyond what the statute has created, and obviously no other state, even though its statute would allow a longer period for such suits, can entertain an action on a right which has ceased to exist. Death acts aré characteristic in this respect, since the action for wrongful death is a new type of right arising by reason of the statutes altogether, and the statutes usually state that actions thereunder must he brought within a named, time-after the death. Arkansas has thus refused to allow an action for Missouri wrongful death brought later than the oñe-year period which the Missouri Act allows for the bringing of such actions, even though the two-year period set by the Arkansas act (Pope’s Digest, § 1278) has not yet passed.”
So we conclude that since the cause of action of the plaintiffs was barred by limitations when the action was filed, and this fact appeared on the face of the plaintiff’s pleadings, therefore the defense of limitations could he raised by demurrer. McGinnis v. Less, 147 Ark. 211, 227 S. W. 398; Cullins v. Webb, ante, p. 407, 180 S. W. 2d 835.
It follows that the demurrer was properly sustained, and the judgment of the circuit court is, therefore, affirmed. | [
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Holt, J.
Appellant, Hubert Parnell, shot and killed Harry Henderson, the town marshal of Bradford, Arkansas, on October 5, 1943. He was indicted for murder in the first degree, found guilty by a jury of murder in the second degree and his punishment fixed at a term of twenty-one years in the state penitentiary. From the judgment comes this appeal.
For reversal, appellant questions (1) the sufficiency of the evidence to support the verdict, (2) the refusal of the court to give certain instructions- requested by him, and (3) the admissibility of certain testimony.
1. The evidence most favorable to the state is to the following effect. At about 9 o’clock on the night of October 5, appellant went into Mrs. Scantlin’s cafe in Bradford, and upon observing his wife sitting on a stool at the counter beside a man by the name of Charlie Turner and talking to him, appellant became enraged and began slapping her. He testified that he objected to% his wife’s having anything to do with Turner. Mrs. Scantlin tried to persuade him to cease striking his wife, and appellant replied: “This is my wife and I can hit her if I want to. . . . Why don’t you call the law, the damn s — of—a—b won’t arrest me. . . .1 dare you to call the law, that damn Harry Henderson neyer will arrest me.” Appellant and Ms wife then left the cafe and on their way home, a short distance from the town, appellant was observed at two different times to strike his wife and knock her down.
T. C. Wilson, the night marshal, was attracted by Mrs. Parnell’s screams and upon going over, said “What is going on here?” Appellant answered, “You had better stay out of this, this is a family affair, this is my wife and I caught her talking to another man. ’ ’ Wilson then told appellant that he was an officer, whereupon, appellant said “I don’t give a damn if you are Jesus •Christ and I had as soon die and go to Hell tonight as not.” Appellant and his wife then proceeded a short distance down the highway when Mrs. Parnell screamed again for help, whereupon Wilson called Harry Henderson, the marshal. When Henderson came upon the scene, along with a man by the name of Clyde Whitley, Parnell, after cursing Wilson, said to Henderson: “Harry, you can’t arrest me. I will kill both of you.” While attempting to' make the arrest, Wilson struck appellant on the head inflicting a slight wound. Appellant then ran and, crossing a field, went to his home, where his wife joined him a few minutes later. Harry Henderson, Wilson and two other men shortly thereafter, after having first procured a warrant, followed appellant to his home to arrest him. Upon approaching the house, they saw a light in one of the back windows. There is a porch about 14 ft. x 6 ft. in front of the house. Henderson walked up to within three feet of the porch and said: “Hubert,” appellant answered “yes,” and came to the open door with a rifle. “He came up with the gun and fired.” This was all done in “I don’t think over two seconds.” The shot struck Henderson in the side and he died a few minutes later from the wound.
• Mrs. Immogene Ray tended to corroborate Wilson’s testimony as to the abusive language used by appellant toward Wilson.
Clyde Whitley testified that he called Harry Henderson after he had heard a woman’s voice in distress. He drove Henderson and Wilson to the place where appel lant was abusing Ms wife and when Wilson got out, Parnell said, “Don’t try to arrest me, you can’t arrest me.”
Dallas Stewart and Alvia Pennington, wbo accompanied Henderson and Wilson to appellant’s house to arrest Mm, corroborated the testimony of Wilson as to the manner in which Henderson was killed by appellant.
W. D. Walker, a member of the state police force, testified that appellant told Mm when he shot Henderson he thought he was shooting at Charlie Turner, whom he said had been “playing"around” with his wife.
W. D. Whitley, another state witness, said that he was mayor of Bradford in 1943, that Harry Henderson was elected marshal in April, 1943, and that Henderson arrested appellant for fighting in July of that year, and that the fine was collected by Harry Henderson. This was the only fine assessed against appellant.
Mrs. Otis Wyatt testified that appellant said, in her presence in September, prior to the killing, that he had paid a fine but that it was not over.
Marcus Osborne testified that about two months prior to Henderson’s death, he heard appellant say, “If Mr. Henderson said anything to him he would run bim in the river and drown him.”
Joe Williams testified that he heard appellant, in speaking of Harry Henderson, say that “he was going to run that s — of—a—b in the river.”
Andrew McDougal testified that about three weeks before Henderson was killed, he heard appellant say, “There is a guy (meaning Henderson) that just ain’t big enough to arrest me, I wouldn’t go with him.”
There was testimony on the part of appellant that he did not intend to kill Harry Henderson, that he had nothing against him, that he thought he was shooting at Charlie Turner, whom his wife had told him had made indecent proposals to her, that he had warned his wife tó stay away from Turner, and that he was protecting his home.
We have reviewed all the testimony and think it was sufficient to warrant the jury in finding that the killing was done under such circumstances as made it the crime of murder in the second degree. White v. State, 74 Ark. 491, 86 S. W. 296; Hall v. State, 113 Ark. 454, 168 S. W. 1122.
2. Appellant apparently does not seriously contend that there was error in the instructions. On this point he says: “While not abandoning these grounds, counsel for appellant is inclined toward the conclusion that while the proffered instructions were a correct declaration of the law in the case, perhaps most of them were covered by instructions given by the court on his own motion.” In this connection, it suffices to say that we have carefully reviewed all the instructions, and we think all issues were fairly and fully covered by correct and clear declarations of the applicable law.
3. Appellant next insists that the court erred in admitting the testimony of W. D. Whitley, supra, relating to the arrest of appellant by Harry Henderson, the imposition of a fine against appellant following this arrest and some three months prior to the killing, and Henderson’s subsequent collection from appellant of the fine imposed. We think, however, the objection untenable since the testimony tended to show appellant’s motive and his state of mind or attitude toward Harry Henderson.
Appellant also argues that there was error in admitting the testimony of Mrs. Otis Wyatt, supra, to the effect that sometime in September, prior to the killing, she heard appellant, in a conversation, say that he had paid a fine, but it was not over. We think, however, that no error appears for the reason that this testimony likewise tended to show motive on the part of appellant.
Appellant assigns as error the action of the trial court in refusing to permit appellant to testify relative to a conversation, alleged to have taken place between him and his son. The conversation referred to was as follows: “Q. You said do what? A. I said, ‘Son, are yon afraid to go down, and get Albert to come up here, I bave killed Harry Henderson’ and be said, ‘Daddy, I am afraid, but . . .’ ” We tbink tbis testimony properly refused for tbe reason that it is in' tbe nature of a self-serving declaration.
Finally, appellant says that tbe trial court erred in admitting tbe following testimony of witness, J. C. Hart, on bebalf of tbe state in rebuttal. “Q. Did any conversation occur between Mr. Plant and Parnell about tbe killing on tbe way back? A. Yes, sir. Q. Tell tbe jury what it was. A. On tbe way back Mr. Plant asked Parnell wby be killed Harry Henderson, and be said be didn’t know be was killing bim, be said, ‘I tbougbt I was killing tbe man that was running around with my wife,’ and Mr. Plant said, ‘You will bave a bard time making a jury believe that.’ He said, ‘I don’t give a HD- wbat tbe jury believes.’ ” We tbink tbe testimony was properly admitted as it tended to sbow appellant’s state of mind and attitude wben be fired tbe sbot that took tbe life of Harry Henderson.
While it appears that tbe trial court did not require tbis testimony to be presented by tbe state as a part of its case in chief, tbis was not error. We so held in Crosby v. State, 169 Ark. 1058, 277 S. W. 523. (Headnote 2): “In a prosecution for a felony, though it would bave been fairer to tbe accused to require tbe state to produce its essential witnesses as part of its case in chief, rather than to allow such witnesses to testify after accused’s testimony bad been offered, tbe latter procedure did not constitute reversible error in view of tbe discretion vested in tbe trial court in tbe matter of tbe order of introducing testimony.”
Finding no error, tbe judgment is affirmed. | [
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Griffin Smith, Chief Justice.
Hal Scaife, 25 years of age, killed his wife and her mother by cutting and stabbing them with a hunting knife. When tried on a charge of having murdered Mrs. Scaife his plea of self-defense was partially disregarded by the jury when it returned a verdict of murder in the second degree. Prom the Court’s judgment of ten years in the penitentiary the defendant has appealed.
Assignments 1, 2, 3, and 4 relate to evidence; 5 and 6 question instructions given and refused, while 7 complains of the Court’s refusal to grant a new trial on the ground of newly-discovered evidence.
After receiving limited training at Great Lakes Naval Station, Scaife was assigned to the Naval Training Station at Millington, Tennessee, near Memphis. His wife remained at Marvell with her mother, Mrs. Susie Davis. Peggy Carey, whose chastity is assailed, moved into the home with appellant’s wife and mother-in-law. This arrangement was contrary to Scaife’s wishes, as expressed to his wife. It is alleged that Peggy entertained men at appellant’s home. Relations between husband and wife grew strained — so much so, appellant testified, that he counseled with a navy chaplain who advised that Mrs. Scaife and their two children be brought to Memphis. The churchman agreed to assist in finding an apartment as near Millington as practicable.
Appellant testified that, with this solution of marital difficulties in view, he procured.leave and went to Marvell, to present the proposal to Mrs. Scaife. She declined to discuss the matter, or to have anything to do with him. Mrs. Scaife refused to prepare appellant's supper, and also rejected his invitation to attend a picture show. He asserts that she left before he had completed his meal and went alone to the show, although he followed and occupied an adjoining seat. Instead of showing interest in her husband, Mrs. Scaife carried on conversations “with a man immediately across the aisle from her,” and finally left the theater unaccompanied.
Appellant, following, returned home for the purpose (as he expressed it) of completing plans to take the family to Memphis. When he entered the building Mrs. Scaife was seated in a chair in the living room with the baby on her lap. Appellant says that as he stood facing his wife, Mrs. Davis entered from an adjoining room armed with a single-barrel bolt-action shotgun. This she handed to Mrs. Scaife. When appellant attempted to dis,arm Mrs. Scaife he was assailed by Mrs. Davis, who “jumped astride my back,’’ pinning appellant’s arms to his side. It is insisted that the three-way conflict progressed from room to room, with Mrs. Scaife holding on to the gunstock, appellant clinging to the barrel, and Mrs. Davis maintaining her position astride the distraught appellant whose arms were firmly held 'to his side by the force of the mother-in-law’s advantageous position. As the scene shifted the contestants entered the northeast room. There, in the drawer of a small chest, appellant had left a hunting knife. When opportunity afforded, appellant released his hold on the gun barrel, and (we quote verbatim) “. . . reached down and opened the top Of the chest, securing his knife with which he intended to inflict upon his mother-in-law — who was still astride his back and still pinning his arms to his side — just enough pain to canse her to relax, with the intention of securing the gun from his wife. It seems that when this was done the fight was renewed with much vigor by these two women, and in the scuffle both women were cut and received wounds from which they later died. ’ ’
In spite of fatal injuries, the women fled to the adjoining home of Mrs. Daisy Middleton, where they collapsed. Mrs. Middleton had previously heard a disturbance “like someone running back and forth through the rooms.” She had also heard screaming. Mrs. Davis exclaimed, “He is after us.” Mrs. Scaife’s comment was, “He is killing us.” And again, “He will kill my baby.” Mrs. Scaife then collapsed, but was not unconscious.
Mrs. Davis died shortly after reaching the Middleton home. There is testimony that Mrs. Scaife kept “pulling at her side where her intestines were coming out”; that she immediately asked for a doctor, who came within ten or fifteen minutes, and that Mrs. Davis was dead when the doctor arrived, or died soon thereafter.
At the Middleton home appellant talked with Dr. Hosey as the latter administered to Mrs. Scaife. While the physician was attempting to relieve Mrs. Scaife with morphine hypodermically injected, appellant began asking his dying wife if she intended to give him a divorce. She replied, “Make him leave me alone; I don’t feel well.” The doctor then told the injured woman she was going to die, and remarked to appellant, “You will get your divorce in a few minutes.” Appellant got down on his knees and attempted to kiss his wife, or caress her cheeks, while she protested. When appellant asked his wife if she still wanted a divorce she said, “Hal, you are the one who wanted the divorce.”
Mrs. Scaife was placed in an ambulance to be sent to a Helena hospital, but died before reaching the city.
Objection is that testimony was admitted relating to statements by the injured women before appellant reached the Middleton house, or while he was not pres ent. There is, however, substantial evidence that Dr. Hosey, who lived only eight or ten blocks from the scene, responded to calls within ten or fifteen minutes, and that appellant’s victims were dying, and must have known how seriously they were wounded. Their declarations and actions were in a sense spontaneous, made in consequence of emotional impulses flowing directly from the transaction which resulted so quickly in death, and without the intervention of any period of repose during which the mind could be presumed to have formulated a self-serving purpose at variance with the facts.
In Carr v. State, 43 Ark. 99, it was said that, circumstances and declarations contemporaneous with the main fact under consideration, or so nearly related to it as to illustrate its character and the state of mind, sentiment
and disposition of the actors, are parts of the res gestae. They are regarded as verbal facts indicating a present purpose and intention, and therefore admitted in proof “as any other material facts.” It was then said, in respect of declarations, etc. that “. . . they need not be strictly coincident as to time, if they are generated by an' excited feeling which extends without break or let down from the moment of the event they illustrate; but they must stand in immediate causal relation to the act and become part, either of the action immediately preceding it, of of action which it immediately precedes.”
It was said in Walker v. State, 138 Ark. 517, 212 S. W. 319, that “Res gestae are the acts talking for themselves; not what people say when talking about the act, and the words must' stand in immediate causal relation to the act, unbroken by interposition of voluntary, individual wariness seeking to manufacture evidence for itself. ’ ’
Wharton, Criminal Evidence, 11th Ed., p: 769, summarizes the rule in this way: “Necessarily, what is part of the res gestae depends on the facts peculiar to each case, since the res gestae embraces not only the actual facts of the transaction and the circumstances surrounding it, but also the matters immediately antecedent to and having a direct cansal connection with it, as well as acts immediately following it and so closely connected with it as to form in reality a part of the occurrence. The rule is not so rigid nor well defined as could demand absolute accuracy in its construction either by the trial or the reviewing courts.”
We think the matters complained of in appellant’s assignments 1, 2, 3, and 4, do not transgress the rule of admissibility; nor was the verdict contrary to the evidence. The fact that appellant’s domestic relations were strained could in no sense justify him in killing the two women; hence the Court’s action in rejecting Chaplain Novack as a witness regarding things said and done at Millington (in respect of which Mrs. Scaife had no physical connection) was not error. The same rule is applicable to letters ostensibly written by Mrs. Scaife to a man other than her husband with whom she was alleged to have been in love, and likewise applies to a letter found in Mrs. Scaife’s effects allegedly written by her to the same man, but unmailed. Appellant does not contend that he killed his wife because of her relations with other men. The entire defense is one of justification based upon fear for his own life. '
It is contended, however, that the State sought to show that appellant was displeased’ because Mrs. Scaife would not agree to a divorce; hence premeditation.
In refusing to allow two of the letters to be considered generally, the Court gave the following instruction :
“The letters introduced by the defendant as having been written by the deceased, Jennie Euth Scaife, . . . may be considered for one purpose only, and that is for the purpose of shedding such light as they do on the question of whether or not the defendant was acting in his necessary self-defense at the time of the killing, as the law of self-defense has been defined to you in these instructions. ’ ’
As a matter of fact, the letters were of no evidential value affecting appellant’s self-defense plea. But even so, he was not injured by tbe partial consideration permitted by tbe court.
Tbe sixth assignment is that it was error to refuse tbe defendant’s requested Instruction No. 9: “Although you may find from tbe. evidence that in cutting tbe deceased tbe defendant did not exercise due caution, yet if you should find that be cut tbe deceased while under mental fright or excitement, be would only be guilty of manslaughter. ’ ’
An instruction given was that to constitute murder in the second degree it is necessary to show that tbe killing was done with malice aforethought. Tbe jury was further told that in determining whether tbe defendant acted in necessary self-defense, “you are to consider bis surroundings and circumstances at tbe time, and [decide whether] they were such as to create in bis mind an honest belief that be was in danger of losing bis life or receiving great bodily injury. ... If you believe from tbe evidence that such was- tbe case, and that tbe defendant cut the deceased while acting under such belief, and that be acted with due caution and circumspection and without negligence, then it would be your duty to acquit.”
While this instruction went to tbe question of complete justification as distinguished from murder in tbe second degree, very definite expressions throughout tbe Court’s directions were such as to impress upon jurors the fact that before finding tbe defendant guilty in any degree there must have been conscious volition. For instance, Instruction No. I, given at appellant’s request, told tbe jury that “. . . before you would be warranted in convicting tbe defendant of murder in tbe second degree . . . tbe State would be.required to prove to your satisfaction, beyond a reasonable doubt, that at tbe time tbe defendant cut tbe deceased be bore malice aforethought against her. ’ ’
Consummation of a malicious transaction is inconsistent with that degree of great mental strain and excitement which serve to dethrone reason.
It is finally urged that the Court erred, in refusing to grant a retrial because of newly-discovered evidence.
The stabbing and cutting occurred Friday evening. A day later Roy Scaife, appellant’s brother, claims to have found a green 20-gauge shotgun shell in the yard. Appellant had testified that after disarming his wife and mother-in-law through use of a hunting knife, he unbreached the gun and ejected a loaded shell. It is contended that Roy Scaife gave the shell to Deputy Sheriff Hickey, who testified at Hal Scaife’s trial that he did not know anything about a shotgun shell. The Middletons, husband and wife (to whose home the injured women fled) would testify that such a shell was left at their home.
Appellant thinks he was prejudiced because the jury might have thought that the gun story was fictitious, invented by the defendant to serve his purpose.
The record discloses that Hickey, .when called by the State as a rebuttal witness, testified that in response to a request by the deputy prosecuting attorney he went to the Scaife home the afternoon following the tragedies. His attention was called to testimony by Roy Scaife that he (Roy) pointed to a shotgun shell in the yard, and that Hickey picked it up. The officer denied picking up the shell. He had previously visited the premises and found the shotgun. It had fresh blood on the stock. Hal Scaife told this witness he unloaded the gun, but didn’t remember what was done with the shell. The officer then testified that he did not find a shell. It appears that a shell similar to that described by Roy Scaife was found on the Middleton dresser. No one seems to know where it came from.
The affidavits do not entitle appellant to a new trial. Existence of the gun is not denied. It was described by the state witness, Hickey. If the weapon featured in the tragedies as appellant contends, he did not, at the time, speculate upon whether it was loaded or unloaded. It will be presumed that he thought it was loaded — that is, if the two women actually used the gun as Scaife claims. The defendant was not prejudiced by reason of the discovery or non-discovery of a 'shell.
Affirmed.
Quotations are from appellant’s abstract of testimony and preliminary statements. | [
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McHaney, J.
Appellant was charged hy information on January 28, 1944, with murder in the first degree for the killing of Paul Elam on January 26. He was arrested on said charge, and, on the same day, he gave bond and was released.
On March 15, 1944, the prosecuting attorney filed a petition for an order of the circuit court to require appellant to submit to fingerprinting, alleging that through oversight, the sheriff failed to take appellant’s fingerprints for identification purposes at the time he was in jail and held in custody and before he was admitted to bail; that since he was admitted to hail he had refused the request of the sheriff to take fingerprints of him for identification purposes; that he will continue so to refuse unless compelled to do so by order of court; that in case of his forfeiting his hail, it would he difficult, if not impossible, to apprehend him unless he could be identi fied by fingerprints; and that it is usual and customary and is a necessary practice in all cases of felony that fingerprints be taken for such purposes. An order was prayed requiring appellant to so submit. Appellant responded with a plea that such an order would be an invasion of his constitutional rights not to be forced to give evidence against himself.' Art. 2, § 8, Const. Ark.; U. S. Const., amdt. 5.
On May 24, the court granted the order as prayed and directed appellant to present himself to the sheriff on or before June 10, 1944, for said purpose, to which order appellant excepted and prayed an appeal to this court which was refused. On July 20,1944, an appeal was granted by a judge of this court.
Whether the order' appealed from is a final order from which an appeal lies, we do not now decide.
The question presented for decision is, whether appellant who is charged by proper information with a felony and who has been released from actual custody on bail, may be required, before trial, to submit to being fingerprinted for identification purposes.
We have never had the exact question presented to us before. In Mabry v. Kettering, 89 Ark. 551, 117 S. W. 746, 16 Ann. Cas. 1123, it was held that: “On a preliminary hearing the court will not restrain officers charged with the enfprcement of the criminal laws from developing photographs of persons accused of crime for the purpose of identifying them.” Syllabus. In Hopkins v. State, 174 Ark. 391, 295 S. W. 361, it was held that finger prints and expert testimony regarding same were admissible in evidence against the accused.
We think the trial court did not commit error in making the order in question. While we have no statute authorizing or directing sheriffs' and other peace officers to fingerprint persons in their custody suspected or accused of crimes, we think they have the power to do so, under the general police power, to establish identification of such persons, and that to do so is not an invasion of any constitutional or' natural right of such persons. The courts generally hold that “evidence as to correspondence of fingerprints is admissible to prove the identity of the accused.” 22 C. J. S., § 616, p. 937.
An interesting case is that of Downs v. Swann, 111 Md. 53, 73 A. 653, 23 L. R. A., N. S., 739, 134 Am. St. Rep. 586. Downs was charged with embezzlement. While in custody and before trial he was photographed, measured and fingerprinted. He thereafter sought to restrain the use of same on his trial. Maryland, like Arkansas, has no statute authorizing such photographing; etc. The lower court held that the officers acted within their rights and, on appeal, the judgment was affirmed. That case is cited with approval in United States v. Kelly, 55 Fed. 2d 67, as is also our own case of Mabry v. Kettering, supra. After showing that Kelly’s liberty and natural rights had not been violated and that no constitutional guaranty had been invaded by compelling him to be fingerprinted, Judge Augustus N. Hand, speaking for the Court of Appeals for the Second Circuit, in part said: “Fingerprinting seems to be no more than an extension of methods of identification long used in dealing with persons under arrest for real or supposed violations of the criminal laws. It is known to be a very certain means devised by modern science to reach the desired end, and has become especially important in a time when increased population and vast aggregations of people in urban centers have rendered the notoriety of the individual in the community no longer a ready means of identification.” Again he said: “We find no ground in reason or authority for interfering with a method of identifying persons charged with crime which has now become widely, known and frequently practiced both in jurisdictions where there are statutory provisions regulating it and where it has no sanction other than the common law. . . .
“Upon the proofs submitted we find no justification for ordering the return of the fingerprints of Mortimer Kelly, and the order directing such return is accordingly reversed, with direction to the district court to dismiss the petition.”
A number of other cases to the same effect are cited in the cases mentioned above and are cited in the briefs for the state.
It seems to be conceded that the sheriff had the right, while appellant was in his actual custody and before being released on bail, to take appellant’s fingerprints for purposes of identification, either with or without his consent. But whether conceded or not we" have no doubt' of the right of the sheriff so to do. For do we think the fact that appellant was at large on bail deprives the sheriff of the right to fingerprint him, or the court of the power to compel him to submit himself to the sheriff for this purpose. He was in constructive custody at least, although at large on bail. We do not find any case directly so holding, but in an annotation to the case of Moon v. State, 22 Ariz. 418, 198 Pac. 288, 16 A. L. R. 262, the annotator, after stating that the constitutional provision that a defendant in a criminal case cannot be compelled to give evidence against himself is not violated by the introduction of fingerprints of the accused, uses this language: “For is such provision violated by an order of the court directing the taking of fingerprints of the accused as a means of identification, and their reception in evidence upon the testimony of a competent witness whose qualification as an expert is not questioned.” Similar language is used in 20 Am. Jur., § 361, p. 330. To sustain this statement, the case of People v. Sallow, 100 Misc. 447, 165 N. Y. Supp. 915, is cited. This case is not exactly in point here, for there the accused had been convicted of a misdemeanor and fingerprinting was ordered to determine the punishment to be given, since the statute required greater punishment for second and third offenses.
We, therefore, hold that the court had the power and authority to make the order here in question and enforce the order by appropriate means.
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McHaNey, J.
This suit involves the ownership of 86.32 acres of land known as “Hurt’s Island” in the Little Missouri River, in Ouachita County, Arkansas. The Little Missouri River at this point is the boundary line-between Ouachita and Clark counties. At the point where the river strikes the island it is divided into two streams, the one to the north side of the island being the larger and main body of the river, in which is the middle or thread of the stream. This island has distinct shore lines with well defined banks emerging out of the stream ’to the level of or even higher than the upland on either side of the stream. It is covered with valuable timber, and it may be said that this island has been there in the same condition as at the present time for many years, such a length of time that the memory of men still living run-neth not to the contrary.
On April 16, 1855, the Federal Government executed and delivered to the State of Arkansas a swamp land patent, conveying “the whole of fractional section 9” and other lands “containing in the aggregate 68,375.77 acres, according to the official .plats of survey of said land returned to the General Land Office by the Surveyor General.” Fractional section 9 is located in township 11 south, rango 18 west. Hurt’s Island is wholly within the exterior boundaries, of fractional section 9, lying in.the north one-half of said section,- near the center thereof, a part being in the northeast and a part in the .northwest quarter of said section. The survey of fractional section 9 and other lands contained in this swamp land patent was made in 1837-38, and it appears that Hurt’s Island was not surveyed. The plat shows the meander lines of both banks and both channels of Little Missouri River surrounding this island, and the quarter section lines on the plat of the survey run only to the brink of the river both north and south of the island, but not across the river, nor across said island. It was designated on the plat by the engineers as “Hurt’s Id.” In 1917 the Government caused an actual survey to be made of Hurt’s Island, and on July 13, 1922, on the assumption that the swamp land patent had not conveyed said island to the State of Arkansas, the Department of the Interior patented said island to the appellee, Martha H. Lowe. The State had never attempted to convey this island until the year 1920, when a swamp land deed was issued to E. L. Huddleston,- but the State Land Commissioner thereafter determined that the state had no title to the island, canceled the deed to Huddleston and caused the purchase price to be refunded to him. This island was placed upon the taxbooks of Clark County for the' year 1920; the taxes not being paid, same was forfeited to the State, and appellants claim title to the island by virtue of deed from the State Land Commissioner, based on 'this forfeiture, dated Sept. 18, 1925.
Appellee brought this suit October 15, 1925, against appellants, setting up her title from the Government and the payment of taxes on this island since the date of the patent, to enjoin the appellants from cutting and removing the timber from the island, on which issue was joined, and the court, after hearing the testimony, decreed the title to the island in appellee, enjoined appellants from cutting and removing the timber therefrom, and can- celecl the tas. deed under which appellants claimed. From this decree this appeal is prosecuted..
Appellant has correctly stated that the only question in this case is, “Did the swamp land patent executed by the U. S. Government on April 16, 1855, convey to the State of Arkansas the tract of land involved in this suit ? ’ ’ If it did, then the Government had nothing to convey at the time it issued the subsequent patent to appellee. If it did not, then the title remained in the Government, which passed to appellee by the patent of July 13, 1922.
It may be stated at the outset that the tax forfeiture above mentioned is void, and that appellants acquired no title by virtue of their deed from the State, either by limitation or otherwise, based thereon. The land, being in Ouachita County, could not be assessed for taxes in Clark County, and it may be further said that the appel-lee, having brought this action for affirmative relief, must recover, if at all, upon the strength of her own title, rather than the weakness of that of her adversaries.
We are of the opinion that the above question must be answered in the negative, that is, that the title to Hurt’s Island did not pass to-the State under the swamp land patent of 1855. We think it clear that the language of the patent, “the whole of fractional section 9, * * * according to the official plats of survey of said lands returned to the General Land Office by the Surveyor General,” conveyed only such land in fractional section 9 as liad been surveyed. In the case of Champman & Dewey Lbr. Co. v. St. Francis Levee Dist., 100 Ark. 94, 139 S. W. 625, the U. S. Government patented to the State of Arkansas a tract described in the patent as follows: ‘ ‘ Township 12 north of range 7 east. The whole of the township (except section 16), containing 13,615 acres and 67-100 of an acre, * * * according to the official plats of survey of said lands returned to the General Land Office by the Surveyor General.” There was a large area of unsurveyed land within the exterior limits of this township, that was either low, marshy or covered with water, and was meandered on the official plat or map, and was designated thereon as “sunk lands.” And in the course of. its opinion this court said:
“The outside boundaries of the entire township are fixed, and the lands marked ‘sunk lands’ upon the plat are within such fixed boundaries, and shown to be so, and are clearly designated by reason of the meander line dividing the unsectionized sunk lands from the surveyed and platted lands. ”
It will be seen from the language used here that the appellants in this case are following the theories announced by the court in.that case. But this decision of our court was reversed by the Supreme Court of the United States, and will be found in 232 U. S. 186, 34 S. Ot. 297, 58 L. ed. 564, and in commenting upon this same question the Supreme Court of the United States used this language:
“Of course, the words in the patent, ‘the whole of the township (except section 16) ’, are comprehensive, but théy are only one element in the description, and must be read in the light of the others. The explanatory words, ‘according to the official plats of survey of said lands, returned to the General Land Office by the Surveyor General’, constitute another element, and a very important-one, for it is a familiar rule that, where lands are patented according to such a plat, the notes, lines, landmarks, and other particulars appearing thereon become as much a part of the patent, and are as much to be considered in determining what it is intended to include, as if they were set forth in the patent.”
It appears to us that this construction of the Supreme Court of the United States of the conveyance in that case is controlling here. Of course, a very much larger body of land was under consideration, but it seems to us that the principles there announced are controlling here.
Again, in the case of Little v. Williams, 88 Ark. 37, 113 S. W. 340, the court, in the opinion on rehearing, defined the word “township,” as used in a stipulation of facts, as follows:
“Therefore, giving the word ‘township,’ used in the stipulation of facts, the meaning which we must attribute to the parties who employed the term, it has reference to the township surveyed and platted by the Government surveyors, and means the townships according to the surveys and plats. A conveyance of the township ‘according to plat of surveys’ does not include lands which do not appear on the plat of the surveys.”
Again, it is perfectly manifest that Hurt’s Island had never been surveyed, from the fact that the Department required a survey thereof in 1917. If it had already been surveyed, we can see no necessity for having a resurvey. And prior to the year 1920, the State apparently had never claimed any title to this island by virtue of its swamp land grant, as in that year it sold the island to one Huddleston, and thereafter canceled the sale and refunded the money, on the opinion of the State Land Commissioner that the State had no title. This was public land, and appellee’s patent is'valid on its face.
In 22 R. C. L., page 309, it is said:
“A patent to public land issued by the General Land Office, and not void on its face, cannot be questioned, either directly or collaterally, by persons who do not show themselves to be in privity with a common or para' mount source of title.”
It is true that the Little Missouri River is a non-navigable stream, and that the ownership of the land opposite the island carries with it the riparian rights to the thread of the stream, which would'no doubt include any ordinary island to be expected in a stream of this size, but appellants are not the owners of the land on either side of the stream opposite Hurt’s Island, and are in no position to raise the question of. riparian rights or to invoke the law applicable to such questions.
It follows from what we have said that the decree is right, and must be affirmed. It is so ordered. | [
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Mehaffy, J.
This suit was brought by the appellee in the Phillips Circuit Court, the plaintiff alleging that T. D. Hunt, as principal, and the JEtna Casualty & Surety Company, as surety, executed and delivered, for a valuable consideration, its certain bond on that date to the State of Arkansas, whereby it agreed, among other things, that it would pay to the plaintiff the sum' of $10,000 for the use and benefit of the commissioners of the Little Cypress Drainage District, or other parties interested in a certain suit pending in the Phillips Chancery Court, wherein John M. Quarles was plaintiff and Little Cypress Drainage District was defendant. The condition of said bond was that, in event the principal, T. D. Hunt, should be permitted to remove from the jurisdiction of the Phillips County Chancery Court a certain dredge outfit then located in Phillips County, Arkansas, and should be permitted to use and operate said machinery during the pendency of this suit, and in the event of the failure of said T. D. Hunt to return said machine within the jurisdiction of this court, in the event an order for such return should be made after the title to said machinery had been determined by legal proceeding, then and in that event the said defendant agreed to pay the value of said machinery as of that date, or the sum of $10,000 as liquidated damages for the failure to return same. That said bond was duly executed and delivered in the registry of this court. Plaintiff further alleged that the title to said property had been adjudicated and that the court had made a proper order to return said equipment within the jurisdiction of the court, and that the limit named in the order had expired. That said Hunt had iailed and refused to return the equipment,' or any part thereof, and refused to pay the value thereof, and failed and refused to comply in any manner with the direction and order of the court, and had thereby breached the agreement, and that, by reason thereof, the .¿Etna Casualty & Surety Company was indebted to plaintiff under said contract in the sum of $10,000, for which sum he prayed judgment.
The defendant answered, denying the material allegations in the complaint. The defendant, .¿Etna Casualty & Surety Company, then filed a motion to transfer to chancery, but afterwards filed an amended answer. The defendant asked and was granted permission to withdraw its motion to transfer, and thereafter the court, on its own motion, set aside the order permitting the defendant to withdraw said motion, and, upon the court’s own motion, the cause was transferred to the chancery court.
We deem it unnecessary to set out the facts- contained in the original case, but the facts in said case may be found in the opinion in Quarles v. Little Cypress Drainage District, 168 Ark. 368, 270 S. W. 501, and the evidence in this case, as far as -deemed necessary, will be set out in the opinion.
Appellant’s first contention is that the circuit court erred in transferring the case to the chancery court, and that the chancery court erred in taking jurisdiction of the case and attempting to give relief therein, in view of the shape the record was in' at the time the transfer was made.
It appears from the record that this cause was transferred from the circuit court to the chancery court over the objections of the appellant. That order, however, was not appealed from, and the case was thereafter tried in the chancery court, there being no motion made by the appellant to transfer it from the chancery court to the circuit court.
This court said in a recent opinion:
‘‘ The record shows that, during the progress of the trial in the circuit court, over the objections of both parties, the case was transferred to equity. 'Both parties saved their exceptions to the action of the circuit court. The order’ of transfer from the circuit court to the chancery court discontinued the action in the former court, but continued it in the latter court until it was disposed of there, either by trying the ease or by transferring-it back to the circuit court. If the order of the court is erroneous, it can be corrected upon appeal from the final judgment or decree in the case. Gilbert v. Shaver, 91 Ark. 231, 120 S. W. 833; Vaughan v. Hill, 154 Ark. 528, 242 S. W. 826; and Nicholas v. Bright, 154 Ark. 1, 241 S. W. 33. When the case was transferred to the chancery court, no motion was made to transfer it 'back to the circuit court, nor were any objections or exceptions saved to the action of the chancery court in trying the case. Under these circumstances the case must be treated as an ordinary action instituted in the chancery court and tried there by consent. By not objecting to the jurisdiction of the chancery coxxrt, the objection to the forum was waived. Columbia Compress Co. v. Reid, 160 Ark. 436, 254 S. W. 825, and Ohio Galvanizing & Mfg. Co. v. Nichol, 170 Ark. 16, 279 S. W. 377.” Hemphill v. Lewis, ante p. 224.
We deem it unnecessary to call attention to other decisions on this point, because we think the recent case of Hemphill v. Lewis settles the question.
The parties tried the ease in chancery court without making any motion to transfer it back to the circuit court, and thereby consented to the trial in the chancery court.
It is next contended that Quarles had no right to sue upon the bond; that it was payable to the State of Arkansas for the use and benefit of the commissioners of the Little Cypress Drainage District of Phillips County, Arkansas. It will be remembered that the bond was given in a suit in the Phillips Chancery Court, wherein John M. Quarles and T. D. Hunt were plaintiffs and the Little Cypress Drainage District was defendant. Hunt and Quarles were both parties to that suit. In that suit T. D. Hunt filed an application and -motion for an order authorizing him to remove the drainage machine or dredge, located in the district, and it was alleged in that application that each of the plaintiffs, that is Quarles and Hunt, and the defendant district were claiming title to said machine, and that it had been idle during the pendency of the suit, was depreciating in value, and should be put in use. And the court thereupon sustained the motion and made the following order:
“It is therefore adjudged and decreed by the court that, upon the execution of a bond with surety to be approved by the clerk of this court, in the sum of ten thousand dollars, to return said machine, with fair compensation for its use, or pay into court its value at this time, hereafter to be fixed, when the rights of the claimants are respectively adjudged, he, the said T. D. Hunt, will be authorized to remove said machine or dredge; the question of the title to the machine to be hereafter decided.”
Hunt and Quarles and the drainage district were all parties and all present when the order was made, or rather, they all agreed to the order. Hunt then filed the bond, and the bond, among other things, contained this provision:
“Whereas J. M. Quarles has instituted a suit in the chancery court of Phillips County, Arkansas, against the commissioners of said drainage district, seeking to recover certain sums of money claimed by him to be due from said district, said cause being No. 4818; and, whereas the above bounden T. D. Hunt has also instituted an action of a similar nature against said drainage district, which suit has been consolidated with the suit of said J. M. Quarles; and, whereas, the said J. M. Quarles, T. D. Hunt and the commissioners of Little Cypress Drainage District claim title to an interest in a certain dredgeboat now located within the confines of said drainage district, amd with which a portion of the work of excavation has been done; and, whereas, since the institution of said suit said boat has remained idle, and, as a result, has depreciated and is depreciating in value, and on the part of T. D. Hunt an order of said chancery court has been made authorizing him to remove said dredge or boat, with all of the appurtenances thereto belonging, upon the execution of a bond in the sum of $10,000, with good and sufficient surety for the return of said boat, or the payment of its value whenever the ques tion of the title to the same and the right of the parties, to-said suits with reference to said boat are adjudicated, by the court. Now therefore, if the said T. D. Hunt, shall pay or cause to be paid into the clerk of the chancery court of Phillips County, Arkansas, the value of said boat at the present time, or return said- boat to said court for purposes of disposition, in accordance with the orders, judgment and decrees of said chancery court thereto pertaining, then and in these events this bond shall be void, otherwise to be and remain in full force and effect.”'
It is not disputed that the bond was given and that the order of court to return it was made, and that order not appealed from, and the bond expressly provides for a return of the boat to the court for the purpose of disposition, in accordance with the decree, orders and judgment of said chancery court. The title to the .property has been adjudged to be in Hunt, but that does not mean that Quarles did not have any interest. The purpose of the bond was to have the boat in the jurisdiction of the court so that whoever had an interest in it might be able to protect that interest, and this could be done if the property was within the jurisdiction of the court, and otherwise it could not be done.
No one, before the court decided, seemed to know where the legal title was, but we think it wholly immaterial. If the legal title had been adjudged to be in Quarles, he would thereby have gotten paid for the money which he advanced, because it is undisputed that he did advance the money, or a sum greater than that which he now sues for, to purchase the boat. Arid this court found in the case in 168 Ark. that the district was due Hunt $4,456.87,' and, although he had no contract with the drainage district, he did have a contract with Quarles, and all of them were parties to the suit. - And that, since Hunt did have a contract with Quarles, and Hunt and Quarles were both parties to the suit, Hunt was allowed, in order to prevent circuitous actions, to recover directly from the district the amount he was entitled to under the contract, and for which the district is liable under its contract with Quarles. And the court also held that there was a balance due Quarles of $10,743.77. It also held that both parties were entitled to interest, and it will be observed that one thing Quarles was charged with was $17,641.31, which amount was advanced to him for equipment, after deducting the amount charged to Hunt. It therefore appears that Quarles had paid the district the money that it had advanced to him to pay for this equipment. The money was used by Quarles and Hunt to buy the equipment, and the testimony of Quarles shows he paid the money and that it has never been paid back to him, and that there is now more due him than the amount of the bond.
The surety company, of course, was bound to know all these facts, because the bond was given in the suit, and recites that it was given in the suit. The statute provides: “Every action must be prosecuted in the name of the real party in interest, except as provided in §§ 1091, 1092 and 1094.”
Unquestionably Quarles was the party in interest. He had advanced the money to Hunt to purchase the equipment, and, although the district had originally advanced it to him, in his settlement with the district he was charged with the amount advanced to him, and it was deducted from the amount the district owed him.
It appears therefore, from the evidence in the case, that Quarles had advanced considerably more than the $10,000 in payment of the dredge, that he was a party to this suit, and the suit was therefore brought in the name of the real party in interest. Files v. Reynolds, 66 Ark. 314, 50 S. W. 509.
A bond is to be construed like any other contract. It is the duty of the court, if it eán, to ascertain the intention of the parties, and, in order to find out what the intention of the parties was at the time the bond was made, it is proper, not only to examine the bond itself, but the order of the court authorizing and directing the bond to be given, together with the interest and claims of the parties and all the facts and circumstances connected with the making of the bond. And when these things are all considered with the bond, we are of the opinion that one of the purposes of the bond was to protect Quarles, who, at the time, claimed an interest in the property.
Application for an order permitting Hunt to remove the property and 'to give a bond was filed in court, and the order states: “And, it appearing that each of the plaintiffs and defendant district are claiming title to said machine.” The plaintiffs were Quarles and Hunt, each of them claiming an interest in the machine. This language is in the order permitting Hunt to give the bond. The appellant, of course, was bound to know of this order, because the bond refers to the order.
The order further provided that the bond should be given to return the machine, with fair compensation for its use, or pay into court its value. And on these conditions, and upon giving the bond, Hunt was permitted to remove the property. The bond itself recites that Quarles has instituted a suit against- the district, and that Hunt has instituted a suit against the district, and that these two suits have been consolidated. It further recites that Quarles, Hunt and the commissioners are all claiming title to the dredgeboat. The bond was conditioned that Hunt would return the boat or pay its value whenever the question of title' was determined. And it was wholly immaterial what the determination of the court was as to the legal title, because, if he advanced the money, as he testified he did, he would certainly have an interest in having the boat returned.
It has been said:
“The one purpose of all construction and interpretation is to ascertain the intent actuating the parties to the agreement, if that end can be accomplished consistently with the rules of evidence. It may often appear (and does quite readily appear in the instant case) that to' ascertain the real scope and effect of the bond necessitates reference to the facts and circumstances of the entire transaction of which it was a part. As said by this court in Jacobs v. Jacobs, 42 Iowa 605: ‘The whole contract must be considered in determining the mean ing of any of its parts. The first point is to ascertain what the parties meant, and then to pnt snch construction upon their contract as will bring it as near to their actual meaning as the words they saw fit to employ, when properly construed, * * * will permit. In arriving at this meaning the subject-matter of the contract, the situation of the parties and of the property, and the purpose of the parties in making the contract, must be considered. * * * The objects which the parties had in view in inducing the contract are also to be considered in its construction. As the actions of men are usually the index of their intentions, it is obvious that their acts may be proved, in connection with their contracts, in order to arrive at their true intention in regard to the obligations they assume and accept from others.’ U. S. Fidelity & Guaranty Co. v. Iowa Tel. Co., 174 Ia. 476, 156 N. W. 727.
It must be kept in mind that the order of the court required the return of the property to the jurisdiction of the court, and the bond was given to secure its return.
“A cause of action accrues upon a bond conditioned to do a certain act as' soon as there is a default in the performance, whether the obligee has suffered damage or not.” Northern Assurance Co. of Eng. v. Borgelt, 67 Neb. 282, 93 N. W. 226.
There is no dispute about the order of court being-made, nor about what it is, and there is no contention that the order to return the boat has been complied with. Since the order of the court permitted Hunt to remove the property upon execution of the bond, and recited that Quarles claimed an interest in it, and since the court further ordered a return of the property, and the property was not returned, there was a breach of the condition of the bond which justified the bringing of the suit. Testimony was introduced tending to show, not only the value of the property, hut the damage suffered by Quarles, and the chancellor’s finding is not against the preponderance of the testimony.
' The decree of the chancery court will be affirmed, and it is so ordered. | [
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Mehaeey, J.
The appellee, plaintiff below, brought suit in the Nevada Circuit Court against the appellant, defendant below. The plaintiff alleged that he was a •citizen and resident of Cass County, Texas, and that the Texas Company was a corporation duly organized and existing under the laws of the State of Arkansas, and authorized to do business in Arkansas. That about the 8th day of July, 1924, and for some time prior thereto, the plaintiff whs in the employ of the defendant company at or near Louann, in Ouachita County, Arkansas, engaged in assisting in the operation of a power pumping plant, and that, while so engaged, and while acting under the orders and directions of his foreman, and while in the exercise of due care for his own safety, he was seriously, painfully and permanently injured by, through and on account of the carelessness and negligence of the defendant, the Texas Company, its agents, servants and employees.
‘ ‘ That siaid injury occurred in this manner: that the plaintiff,, while in the exercise of due care for his own safety, acting under the orders and directions of his foreman and other superiors, was doing and performing the duties of his labor and work for which he was employed and to which he was assigned, and, in carrying ont instructions from his superiors while working in the machine house or pumping station attached to an oil well of the said defendant, as aforesaid, by reason of defendant’s negligence, carelessness and fault, a part of the appliances, machinery and apparatus struck petitioner, being a bolt or nut from the instrument known as and commonly called the ‘idler,’ or from the instrument called the ‘clutch,’ plaintiff being unable to be more definite, thereby immediately rendering petitioner unconscious for several days and thereafter disabling him from doing or performing any work or labor of any reasonable kind or character for the balance of his lifetime, and further physically and mentally deforming, deranging, impairing and paralyzing the petitioner through and in the manner as above set forth, and in the further particular manners to wit:
“Petitioner’s skull was fractured, and ¡a depression was also formed as a result thereof in the top of the skull, and, as a result of the same, the nervous system of petitioner’s body, his muscular power and mental capacities were so weakened and impaired, deranged, disorganized and thrown out of coordination that petitioner became, as a result thereof, is now, and will ever be, an invalid and cripple, unable to do or perform any tasks or physical labor, partially paralyzed, so much so that he cannot do the tasks necessary to enjoy any ordinary conveniences or pleasures of any kind or character, and, since the said accident, at this time and ever hereafter, has constantly and will hereafter suffer such severe pain as great as he can overcome and survive; all the same because of and on account of the carelessness and negligence of the defendant, the Texas Company, its agents, servants and employees, and arising out of and in the course of his employment with the said defendant. That the defendant, the Texas Company, its agents, servants and employees, were careless, negligent and at fault, first, in failing, refusing and neglecting to furnish to the plaintiff a reasonably safe place in which he was required to work; second, in failing, refusing1 and neglecting to keep its machinery and appliances in a reasonable safe condition ; third, in failing, refusing and neglecting to keep in proper repair the ‘idler’ aforesaid, in that the nut or bolt was allowed to become loosened, worn and defected, improperly fastened and secured, thereby allowing and permitting same to become loosened and to be released and thrown out of order away from the said ‘idler’, striking and-injuring the plaintiff as aforesaid; that the defendant, the Texas Company, its agents, servants and employees, knew, or, by the exercise of ordinary care could have known, of the unsafe and dangerous condition of said ‘idler,’ nut and bolt. That, prior to the injury herein complained of, this plaintiff was a stout, able-bodied man, about thirty-three years- of age, earning and capable of earning $150 per month, and bade fair, in the course of his work, to be rapidly promoted and to earn % wage of at least twice said amount, petitioner being, prior to his injury, an energetic and physically capable man; that now, as a result of the carelessness and negligence of the defendant, its agents, servants and employees, he is an invalid and cripple for life, as aforesaid, and has been greatly damaged in the sum of $60,000.”
The defendant answered, admitting that plaintiff was in the employ of defendant on the 8th day of July, 1924, and that he was injured on that day. It denied all the material allegations of the complaint, and alleged that the injury of the plaintiff was caused solely on account of his own negligence, and pleaded assumed risk.
The plaintiff, James R. Jones, testified that, on July 8, he was running the power station for the Texas Oil Company at Louann, Arkansas. Mr. Fussell was his foreman, and it was 'his duty to keep the machinery in repair. Fussell was gang-pusher for the Texas Oil Company; witness was making $142'or $142.50 a month; had been working for them about three months; had just gone on duty that morning about 12 o’clock, at which time he was to relieve the morning power man, who told witness he had been having trouble with tlie plant, particularly the idler; it was running- hot, and witness would have to watch it; witness had been watching it, oiling it every few minutes, trying to cool it off, because, when they would get hot, they would stick, or something would happen that would shut the station down; started around /to oil it; had hung up gas ticket or gas checker, had come in the main wall, had gone to hang up his ticket, and started around to oil it up; that is the last thing witness recollects; had started towards this belt idler; something popped, like a gunshot in witness’ ear; that was the only thing witness knew; witness was in the Warner Brown Hospital the next thing he remembers; does not know on what date he came to; was in the Warner Brown Hospital either 29 or 30 days; came to in the Warner Brown Hospital; was struck in the center of the head; showed up a three-quartered hole in witness’ head, about a half inch; it was in witness’ hat; corresponded with the place it made in witness’ head; can feel the hole; seems to be as big as witness’ thumb. Witness woke up in Warner Brown Hospital.
“Q. What size bolts were there in the idler? A. Well, they was something like an inch and a half long, I guess. Q. And about how big? A. Well, something-like my little finger, or hardly as large. Q. How big was the hole in your hat? A. Well, it was about half an inch, or something like that. It was just a three-cornered hole in there, and it was just like my hat was, that way. Q. Was there a hole in your hat? A. Yes sir. Q. Was the hole in the hat bigger, smaller, or of the same size as the idler? A. Well, it was the same size.”
There was no other mark on witness’ head, except the three-cornered hole mentioned; it was a panama hat, soft straw.
Witness is handed drawing. When he got hurt he had reached a point along to the right of the air compressor (this point is indicated on drawing by figure 1) (also marked S); the idler pulley is referred to as the idler; had gone from the locker to the right of the air com pressor; heard something sounded like a gunshot; that was the last witness remembers; had started' towards the idler because it was running hot; was trying to cool it off with oil; the drawing handed witnes's shows the situation there.
"Witness had always been a pretty healthy, stout man before this accident; thinks he was thirty-three -when he had this accident; will soon be thirty-six. Witness’ weight is about fifteen or twenty pounds under what it was when the accident occurred. Has been able to do practically nothing since this injury; can’t earn a living for his family; can’t do any work; has not been able to work for anybody since he wias hurt; is tired and worn out; no use of himself; weak; head worries him practically all the time; suffers pain in his head and back practically all the time; has had no ease since injured; doesn’t feel natural; body is weak; has very little grip in his left hand; has some more in his right hand; feels paralyzed first on one side and then the other; more on left side at times; during these two years hasn’t rested well at all; has been unable to do 'any work; tried working on the farm; could do but very little; had some little kids that worked and had a fellow hired who worked for witness this year. Farm consisted of about 58 acres; had a hired hand; is not able to do farm work; is having it done by others. Worries witness to have to undergo an examination; can hardly stand it; weakens him so; underwent an examination in Prescott yesterday for defendant ’s doctors; put him in bed; had to have a physician; put him in bed about five-thirty or six o’clock; was unusually pained after examination; stuck needles in witness; seemed they wanted to take their fingers and find every soft spot on witness’ body; witness’ legs cause an impediment in his walk; walks that way all the time since he got up from his bed; did not have this impediment before he was injured. Before the injury could talk good and strong; when the doctors stuck pins in him, could feel it sometimes and sometimes he couldn’t. Is affected more on left side.
The bone was removed from witness’ skull by Dr. Horton; thirty-three years of age; was earning $142.50; has not been able to do a man’s work or even that of a ten-year-old hoy since injury. Did not know at the time that idler or appliances were dangerous. Before the injury was considered by everybody a good, able-bodied man; had worked regularly. Scar very near the center of witness’ head; suffered considerable pain over the examination the doctors made yesterday; reached Prescott Tuesday; came from El Dorado with Mr. Long in his car; came from Shreveport to El Dorádo; had been examined by doctors at the hospital in Prescott; does not know the name of the doctor who examined him; did not get sick over that examination; doctor didn’t try to insert his 'fingers in all of witness’ joints; doctor was selected by plaintiff and his attorneys; defendant’s doctors in their examination made -witness sick; injury occurred on the 8th of July, 1924; was working at that time for the Texas Company at Louann as a power-house man; no one else worked in the power house; was his duty to keep machinery oiled; his duty to keep the floor clean; not necessarily his duty to watch the condition of the machinery; naturally one would see after it if he knew it was out of fix; had started to oil the idler when he was hurt; had worked in the power house a month or six weeks before he was hurt; began working there when the power house was first installed; was a new one; just been running about a month or six weeks; had been working there all that time; was to some extent familiar with the different pieces of machinery in the building; the machinery was all new to plaintiff; knew where all of it was located; knew how it ran; knew where it all was and how it- operated; had worked in the oil field business for about eight or ten years before he was hurt; had never worked inji power house before; witness has not been able to go where he wanted to all the time since his injury; for the first eight or ten months' practically stayed at home all the time. Tried to get a settlement out of the Texas Com pany, but they wouldn’t settle; first filed suit in October, 1924.
“Q. I see. Now, you bad a trial on that case at Texarkana, didn’t you? A. Well, no, we didn’t exactly have a trial. Q. Well, what did you have? A. Well, I don’t hardly know what you might call it. Mr. Long’’s brother-in-law had died — .”
Had just been at work on the day that he was injured a few minutes — ten or fifteen minutes; had talked to the gas checker and had signed his gas report; had just went on; does not recollect having swept the floor; had probably dusted a little bit right around the back door; does not think he had picked up the broom that day before the accident occurred; testified in the trial of the case about this same injury in the Federal court at Texarkana; might have testified he had swept the floor some and had left his broom standing on the side of the door to the right; that is where they kept the broom. The drawing (general exhibit 1) shows pretty well the location of the different instruments and things and machinery in the power house; there are windows all around; all doors were open at the time plaintiff was hurt; don’t suppose he did any sweeping when he came in that day; had just been there a few minutes; probably did sweep a little bit; belt comes over a good big wheel, which is much smaller than the power wheel; belt does not cross; there is a crank to tighten the belt; belt was fastened together with 14-inch belt clamp — 3xl4-inch. Probably the clamp wouldn’t be as wide as the belt. Sometimes the clamps are built shorter. "Witness was standing about ten or twelve feet from the idler at the time of the accident. Does not know whether the bolt came out of the butt of the idler. The air pressure tank was not shown on drawing.
Redirect examination. — The idler pulley must have gone around 250 or 300 revolutions a minute. Witness was coming over to oil up the idler and see about the oil circulating* in the oil cup; was hit in the front of the head; there were bolts in the idler. The belt was on the back side of the idler; left is exposed in the direction of where witness was standing. Tlie "bolt ran straight and then became twisted; when the belt got to the power wheel, it turned flat; power wheel was probably two feet off the floor; the center of the wheel was about eighteen inches or two feet from the floor; there are about eight or ten 'bolts in the belt, according to the width of the belt; a bolt goes through there probably every inch and a half; placed through the belt to hold the belt clamp together, and they frequently come out; idler turned around maybe 250 or 300 revolutions; traveled at a rapid rate of speed. Possibly 25 or 30 bolts in the idler, maybe more; there Avere no other bolts in any other appliances there that Avere shaped like the bolts in the idler.
Re-cross examination. — The bolts in the idler have a flat head, and it ran off to a sharp edge. They are square bolts. No other bolts in any other machinery .just like it of Avhich witness knows; not all the bolts have square heads and sharp points; some of them are round; there is other machinery with square-headed bolts; not sharp sides and points; square bolts would have sharp points, but not sharp sides and points; the bolt in the idler had a square, sharp head. It’s flat on top; kneAv the kind of bolts in the idler before he Avas hurt; does not know of his OAvn knoAvledge Avliat hit him.
Does not knoAv Avhere the hat is; has seen it since he Avas hurt; suav it at Louann, about thirty days after he AA'as hurt; it Avas at Avitness’ house; the hole in the hat Avas between a half and three quarters of an inch; it was a small place there; is testifying from his idea by looking at it; never measured the bolts; his testimony on the size of them is from looking at them; the place in the hat was a snagged place like Avhen one’s pants are snagged from barb-wire or something. Lived at Louann some time after the injury. Had the hat at his house; does not know Avhat became of it; it got out of the house and got away from there. The hole in the hat Avas a three-cornered hole, something like a half to three quarters of an inch; there was no other sharp-pointed bolt the size of this bolt in the idler. Tbe idler getting out of fix would shut down the machinery.
Re-cross examination. — If the idler would stop running, the whole power plant would shut down; the idler is a device that tightens the belt as well as holding it upon the power wheel, and its stopping would cause a heavy drag on the machinery and would kill it; never saw an idler out of fix; knows that it would stop it.
Redirect examination. — The idler getting out of fix will cause a constant drag on the engine, just cause it to pull so much heavier with the same amount of gas on it. If there was an increase of gas and advance the spark, probably the engine would run on, but having the same amount of gas and same amount óf spark, when the idler began to drag it would kill it because it would be an added weight to it. Has seen idlers on steám engines drag.
Re-cross examination. — Does not know whether he went back to the power-house just a short time after he was hurt; that is something he knows nothing about.
D. T. Langston, a witness called by plaintiff, testified: Was working up in the Louann oil field on the 8th of July, 1924; knows Mr. Jones; witness was working for the Texas Company; witness and Jones were not working together; Mr. Jones was working for the Texas Company; witness was about 150 yards from where Mr. Jones was working on the 8th day of July, the day he got. hurt; was working at the pumping station; saw Mr. Jones that day; Mr. Jones came over to the station where witness was at work about twelve or a little after; does not remember the exact hour of the day; he was kinder unconscious; didn’t know what he was doing -when he got over there; had a hole in the top of his hat; examined and found he had a hole in his head underneath the hat; it was kind of a three-cornered hole; the power was shut off when Jones came io where witness was working; shut off just before he got there; could hear the power running; made lots of racket; could hear it from the station; Jones staggered up where witness was; about the time he staggered up there witness noticed the power was off.
Cross-examination. — No kin to Mr. Jones; has never testified in this case before; never been identified with it' until today; is not working down there; is farming at Atlanta, Texas; lives about ten or twelve miles from Jones; has known him five or six years; does not know how Jones found out what he knows about the accident; has not talked to J ones about it recently; has not talked to any one laibout it; hasn’t even told anybody about it; lives in Texas ten or twelve miles from J ones; the hole in plaintiff ’s head was something like a half or an inch long; was under his hair; bathed his head with water when he came over there; witness was inside- of the pumping station when Jones came in the door; had just come from the back of the station up to the front; he came in the door of the pumping station; noticed the power-house stop running, and looked out and saw Jones coming over that way; did not just exactly hear it when it stopped;-noticed it was down, and looked out that way; worked all afternoon there in the pumping station; worked there for the company until the 15th day of December, 1924; the powerhouse was down something like an hour or an hour and a half; don’t remember whether he heard it when it started up again; does not know who started it; knows he heard it stop, and late in the afternoon it was running.
Redirect examination. — First saw Mr. Long Sunday afternoon; first time he had ever seen, Mr. Long about the case. Was paid for that day’s work.
Re-cross examination. — Talked to Mr. Long Sunday evening when they came by.
Redirect examination. — Had never known Mr. Long before that Sunday evening.
It is unnecessary to -set out the instructions. The instructions given by the court, when considered together, correctly state the law.
A number of other witnesses testified, but none of them claimed to know anything about how the injury occurred, and, since a majority of the court has reached the conclusion that the evidence is not legally sufficient to support the verdict, it becomes unnecessary to set out the testimony of witnesses as to the extent of the injury.
A careful consideration of all the evidence has convinced a majority of the judges that the evidence is insufficient to support the verdict. While it is true that, if there is any legal evidence to support the verdict of a jury, the court will not disturb it, yet this court has repeatedly held that circumstances of mere suspicion or where the evidence tends equally to sustain either of two inconsistent propositions, a verdict in favor of the party bound to maintain one of them against the other is necessarily wrong. In other words, the plaintiff must show by a preponderance of the evidence some act of negligence on the part of the defendant causing his injury. And if the evidence is such that the negligence of the defendant may have caused his injury, but that it also tends equally to show that the injury resulted from some cause other than the. negligence of the defendant, this would not justify a verdict against the defendant.
. The mere fact that the plaintiff was injured while working for the defendant and while in the exercise of due care himself is not sufficient to justify a verdict against the defendant. There must be some evidence of the negligence of the defendant and that that negligence caused the injury.
The plaintiff relies on his own testimony, and he says that they had been having trouble with the “idler,” that it was running hot on him, and that it would stick or something would happen to shut down the station. That he went around to oil it up, and, after starting around to oil it up, he can remember nothing else.
The allegation in the complaint is that a bolt flew out from the idler and hit him, but there is no testimony tending to support this allegation. Counsel asked plaintiff this question:
“Q. Were you hit by something or did you hear something pop?” And lie answered: “Nothing, only something popped just like a gunshot in my ear. That was the only thing I ever knew.”
It is'wholly immaterial whether the idler was hot or not and whether the machinery was defective or not, unless these things, or some of them, caused the injury. It is possible that a bolt may have hit him. It is also possible that he might have been hit by something else or injured in some other way. There is certainly no evidence by plaintiff or any other witness tending to show that a bolt flew out and hit him.
“It is thoroughly well settled that verdicts of juries must have a more substantial basis than mere conjecture or speculation on which to rest.” St. L. I. M. & S. R. Co. v. Smith, 117 Ark. 655, 174 S. W. 547.
“It is a well established doctrine, often recognized by this court, that juries will not be permitted to rest a verdict purely on speculation. That there must be testimony which warrants a finding of the essential facts or which would warrant a reasonable inference of the existence of those facts upon which liability is predicated before a verdict will be permitted to stand.” St. L. I. M. & S. R. Co. v. Belcher, 117 Ark. 638, 175 S.W. 418; St. L. I. M. & S. R. Co. v. Enlow, 115 Ark. 584, 171 S. W. 912; Midland Valley Ry. Co. v. Ennis, 109 Ark. 206, 159 S. W. 214.
There are many other cases which have been decided by this court to the same effect, and, while it is a well-settled rule of this court that, if there is any substantial evidence to support the verdict it will not be disturbed, 3ret it is equally well settled by the decisions of this court that a verdict cannot be permitted to stand unless there is some substantial evidence to support the verdict. And, as we have already said, after a careful consideration of all the evidence in this ease, the conclusion has been reached that there is no evidence that the plaintiff was injured by reason of any negligence on the part of the defendant. If the bolt flew out and hit the plaintiff because of the negligence of the defendant, this would entitle him to recover, but he does not claim that this occurred. In fact, lie does not claim to know what hit him. That a holt hit him is mere conjecture.
Since the evidence is insufficient to support the verdict, this cause is reversed, and remanded for a new trial. | [
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Kirby, J.
This suit involves the title to certain lands devised 'by John Mallett of Conway County, Arkansas, and the construction of his will in making the disposition thereof.
Appellees purchased or leased a portion of same from the, children and heirs of the said testator by his first wife, and they brought suit therefor against the widow and children of his last marriage, finally joining the children of the first marriage and the suit proceeding as one for partition. From the decree adjudging all the children of both marriages heirs and cotenants, and partitioning the lands, this appeal is prosecuted.
Clause 2 of the will provides: “After payment of my said debts and funeral expenses, I give to my heirs by my first wife, Elizabeth, all of my land in Faulkner County, Arkansas, east of Cadron Creek. All of my land situated on the Avest side of the Cadron Creek, in Conway County, Arkansas, to my present Avife, F. T. Mallett, and her children by me to share equally, my Avife to have full control of said property so' long as she remains my widow.” It then provides that the Avife forfeit all said property if she marries again, and the said lands be divided equally among the children by her, and, at the death of the testator, if there be any surplus of personal property, same shall be divided ‘ ‘ with both sets of children, each one sharing equally.”
The lands in controversy, “all. that part of- the southeast quarter of section 34 (34) in toAvnship 8 (8) north, range 14 (14) west, that lies north and west of north Cadron Creek. All that part of the south half of the southwest quarter of section 34 (34), in township 8 (8) north, range 14 (14) Avest, that lies north-and west of North Cadron Creek,” all lie north and Avest. of Cadron Creek, but are not in Conway County.
After the Avill was made, the testator by deed conveyed to the sons of his first marriage, requiring them to pay to their sisters a proportionate value to make the division equal, the lands that had been devised to the children by his first wife in the will.
When the will was offered for probate, the children of the first marriage filed with the probate judge an agreement ratifying the will, showing the conveyance of the lands devised in the will to them by the testator in his lifetime, as follows: * * * “We further ratify and affirm the deeds that the said John Mallett made in his lifetime to the following children: J. L. Mallett, J. P. Mallett, J. E. Mallett and S. E. Mallett, conveying to said children their part of his real estate, which deeds were executed after the will was made. Said deeds conveying to said children all the lands of said John Mallett in Faulkner County, Arkansas, lying east of Cadron Creek.” This was signed by all the older set of heirs except Sallie Smith, who made an affidavit that she was willing to accept the will offered as the will of her father, and that the same be probated.
The testimony shows that not much of the lands north and west of Cadron Creek, devised to the younger set of heirs, was in cultivation, as most of it was hilly and broken, not well adapted to agriculture.
The testimony shows also that the bottom lands granted to the older set of heirs were about of equal value, many witnesses testified they were of greater value than the hilly lands, although some witnesses thought the latter were of more value. The widow and the younger set of children lived on the lands devised to them, and traded around among themselves, paying the taxes thereon, and had possession thereof, without any claim of ownership by any of the older set of heirs, until after their conveyance of the site for the store to the Lyons, appellees, to whom the appellants had refused to rent or sell any of the lands.
Appellants’ contention that the chancellor erred in his construction of the will holding that the testator did not dispose of his entire estate, but died intestate as to the lands in controversy, is right, and must be sustained.
The true rule in the construction of wills, which can he said to be paramount, is to ascertain or arrive at the intention of the testator from the language used, giving consideration, force and meaning to each clause in the entire instrument. Campbell v. Campbell, 13 Ark. 513; Booe v. Vinson, 104 Ark. 439, 149 S. W. 524; Moore v. Avery, 146 Ark. 193, 225 S. W. 599; Norris v. Johnson, 151 Ark. 189, 235 S. W. 804; LeFlore v. Handlin, 153 Ark. 421, 240 S. W. 712; Gregory v. Welch, 90 Ark. 152, 118 S. W. 404.
A testator is presumed to intend to dispose of his entire estate, and it must be borne in mind, in the construction of wills, that they are to be so interpreted as to avoid partial intestacy, unless the language compels a different construction. Booe v. Vinson, 104 Ark. 439, 149 S. W. 524; Badgett v. Badgelt, 115 Ark. 9, 170 S. W. 484; Gibbons v. Ward, 115 Ark. 184, 171 S. W. 90.
It is manifest from the provisions of the will, the whole instrument considered, that it was the intention of the testator to dispose of' all' his estate, and the chancellor erred in holding otherwise and that he died intestate as to the particular lands in controversy, which, although they were situated on the north and west side of Cadron Creek, were not in Conway County, the creek not being the county line through these lands.
There is no doubt about the intention to give to the testator’s heirs, children by his first wife, all of his lands in Faulkner County east of Cadron Creek. The creek is- the county line between the counties through certain of the lands. All the parties at interest understood this to be the case, and the testator, before his death, made deeds conveying these same lands, described in the will, to the sons of his first marriage, requiring them to pay to his daughters' by said marriage, their sisters, an amount of money equal to the value of the lands each would have had had the land itself been divided among them all. These children and heirs, by their written agreement “ratifying the will” and consenting to its probation, without notice, as the last will and testament of their father, John Mallett, stated they accepted its provisions and ratified and affirmed the devises therein contained, and “we further ratify and affirm the deeds that the said John Mallett made in his lifetime to the following children”: the sons of the first marriag*e, naming them, * * * “conveying to the said children their part of his real estate, which deeds were executed after the will was made. Said deeds conveying to said children all the lands of said John Mallett in Faulkner County, Arkansas, lying east of Cadron Creek. ’ ’ This ratification agreement was signed by all the children of the first marriage, except Sallie Smith, whose affidavit was filed therewith, and it recites that' the deeds from the testator in his lifetime were made to the sons, naming them, “conveying to .said children their part of his real estate, which deeds were executed after the will was made,” and the undisputed testimony shows that these grantees were required to pay to their sisters, the other children of the first marriage, an amount of money equal to their share of the lands so conveyed, as if they had been conveyed to them all.
This shows that the testator and his heirs, the children of the first marriage, all understood that they were receiving and that the testator had distributed to them, in his lifetime, _ all the lands that were proposed to be devised to them in the will.
The fact that the younger set of heirs and the widow continued in possession of all the lands devised to them by the testator, north and west of Cadron Creek, upon which they were living at the death of the testator, without any objection on the part of the children of the first marriage, who had received their distribution of the father ’s estate before his death, except an occasional sporadic complaint, that is but recently attempted- to be made- a claim of right to a division of these lands, also shows that all the parties understood the testator’s intention in making the devises, and this could be determined from extrinsic evidence, if it were necessary to resort to such evidence to discover the intention of the testator, which does not seem to be the case here. Eagle v. Oldham, 116 Ark. 565, 174 S. W. 1176, 1199.
It follows that the chancellor erred in the construetion of the will, and his finding that the older set of heirs had not acquiesced in its proper construction by their written statement of it and had been, making a claim of right to a division of the lands in controversy, which they claimed undisposed. of by the will, as heirs of the testator, is clearly against the preponderance of the testimony. It follows that the decree must be reversed, and the cause remanded ‘with directions to enter a decree quieting the title of appellants to the said lands and canceling the lease or conveyance of any part thereof by the said older set of heirs, appellees, as a cloud on the title of appellants, and for all further necessary proceedings therefor in accordance with the principles of equity and not inconsistent with this opinion. It is so ordered. | [
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Hart, C. J.
Appellants prosecute this appeal to reverse a judgment of conviction against them for the crime of robbery.
Appellants were witnesses for themselves, and denied their guilt. Other witnesses testified that they were at work at the Temple Cotton Oil Mill Company, in the city of North Little Rock, on the hour of the day on which the - robbery occurred. It was the peculiar province of the jury to judge of the credibility of the witnesses and of the weight to be given to'their testimony. Hence the right of the jury to refurn a verdict of guilty depends upon whether or not, when the evidence is viewed in the light most favorable to the State, it is legally sufficient to show that the accused committed the crime with which they were charged.
According to the evidence of Roy ■ Gribble, he runs a store in North Little Rock, Pulaski County, Arkansas, and two negroes entered his store about six-thirty or six forty-five p. m. on February 14, 1927, and robbed him. He got a good look at the persons who robbed him, and recognizes James Carter and Melvin Carter, appellants, as being the two negroes who robbed him. They were in the store about three or four min utes, and Melvin Carter pulled a short gnn or pistol which had a rib all the way down the barrel. James Carter searched the witness, and got about a dollar out of his pocket. They then went through his cash-drawer. About eight days later James Carter came back in the store and bought some candy. The witness recognized him as one of the negroes who,had robbed him. Julius James, a boy thirteen years of age, who worked for Boy Cribble in his store at the time he was robbed, was also a witness for the State. Melvin Carter is a big man, and the witness recognized him as being one of the men who robbed Cribble. The witness stated that he was positive that the big man was the one who held the gun or pistol on Cribble. On cross-examination he was asked how he identified the big man, and he answered by stating that he saw all of his face.
Appellants were arrested about eight days after the robbery was committed, and Melvin had on his person a thirty-eight caliber pistol which had a rib on top of the barrel.
While the testimony of the witnesses for the State was somewhat shaken by their cross-examination, it was of such a substantial character as to warrant the jury in convicting the appellants if they believed the testimony to be true. Two of the witnesses for thé State positively identified Melvin Carter as one of the persons who committed the robbery, and their testimony is corroborated by the fact that, when he was arrested, he had on his person a pistol similar to the one used in the robbery. Crib-ble also identified James Carter as one of the persons who robbed him. When James Carter came into the store, about eight days after the robbery, Cribble at once recognized him as being one of the persons who had committed the robbery. Hence we hold that the evidence was legally sufficient to support the verdict.
The next assignment of error is that the court erred in permitting the officer who arrested Melvin Carter to testify that he had a thirty-eight caliber pistol on his person. While, as insisted by counsel for appellants, a per son is not to be convicted of a criminal offense by evidence that be bas committed other crimes wholly disconnected with the one for which he is being’ tried, yet such testimony is admissible if it tends to establish the crime in question. Here the evidence with regard to Melvin Carter having a pistol on his person when arrested was introduced because the pistol found on his person was very similar to that held in the hands of one of the persons who committed the robbery. Hence this assignment of error is not well taken. Cain v. State, 149 Ark. 616, 233 S. W. 779; and Morris v. State, 165 Ark. 452, 264 S. W. 970.
It is also earnestly insisted that the court erred in not granting the motion of appellants for a new trial upon the ground of newly discovered evidence. In support of their motion, they introduced an affidavit of a witness who swears that he was employed by the Temple Cotton Oil Mill Company on the 14th day of February, 1927, and was working on the night-shift; that he left his home about six-twenty p. m. and saw two negro boys going in the store of Roy Gribble, when he passed there on his way to work. When he reached the mill, he saw James and Melvin Carter at work. He had known them for a number of years, and knew that they were not the negro boys whom he had seen enter the store of Gribble on the evening of the' robbery. As we have already seen, appellants had introduced several witnesses who testified that they worked at the Temple Cotton Oil Mill Company from seven o ’clock in the morning to seven in the evening •on the 14th day of February, 1927. Hence the newly discovered evidence was merely cumulative, and it was within the discretion of the trial court to grant a new trial or not. There is nothing to show that the trial court abused its discretion in failing to grant a new trial for cumulative evidence. Crouthers v. State, 154 Ark. 372, 242 S. W. 815, and Pendergrass v. State, 157 Ark. 364, 248 S, W. 914.
We find no reversible error in the record, and the judgment will therefore be affirmed. | [
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Smith, J.
Appellee, who is a building contractor, entered into a written contract on May 15, .1925, with appellant, whereby he agreed to erect for her a two-story brick building for the sum of $12,671. The contract contained the usual provisions found in the ordinary building contract, and required the contractor to complete the building in' a hundred and twenty days. The building was finally completed and accepted on December 12,1925, and appellee brought this suit to recover the balance which he alleged was due him.
The contract named a supervising architect, and gave him authority, as agent for the owner, to make changes and additions in the plans, upon notice in writing to the contractor, and during the progress of the work certain changes were made'upon the order of the architect, but the directions under which this was done were orally givén.
Article 7 of the contract provided that, should the contractor be delayed in the prosecution or completion of the work by the act, neglect or default of the owner or architect, the' time fixed for the., completion of the work should be extended for a period equivalent to the time lost on that account, the extended period to be determined by the architect, “but such allowance shall not be made unless the claim therefor is presented in writing to the architect within forty-eight hours. of the occurrence of the delay.”
It is. not denied that the building was completed in accordance with the plans and specifications therefor, nor is it denied that the contractor is entitled to charge for certain extras ordered by the architect and certain freight paid by the contractor which the owner should have paid. It is insisted, however, that the'building was not completed within the time limited, and the owner •claims, on that account, the right to take credit for the liquidated damages which the contract provided for in case of delay. This provision was that liquidated damages in the sum of seven dollars per day should be paid for every day after one hundred and twenty days .from the. date of the contract until the building should be completed, and the contractor concedes the validity of this provision as one for liquidated damages and not a penalty. The contractor contends, however, that the delay was occasioned by the default of the architect, and the court expressly found the fact to be that such was the case, and that finding does not appear to be against the preponderance of the evidence.
It is the insistence of the owner that written notice of this default was not given as required by article 7 of the contract, nor was that agreement waived by her, and that therefore the contractor is liable for the liquidated damages provided for in the contract. The court below found that the requirements for the written notice had been waived by the conduct of the parties, and refused to allow any sum as liquidated damages, and the correctness of this finding appears to be the only question presented for our decision. •
In the chapter on “Building and Construction Contracts,” 9 C. J. 782, it is said that: “When the contract so provides, the builder must give notice to the owner or the architect of delays arising from stipulated causes, or of his claim for additional time by reason of such delays, or he will not be excused or entitled to additional time, unless such formality is waived.”
Among the cases cited in the note to the text quoted is-our. case of Wait v. Stanton, 104 Ark. 9, 44 S. W. 446, and that case sustains the text quoted. Article 7 of the contract there construed appears to he identical with article 7 of the contract under consideration here, and it was there said:
“Article 7 provides that, if the contractors be delayed in the prosecution or completion of the work by the • act, neglect or default of the owner' or architect, the time herein fixed for the completion of the work shall be extended for a period equal to the time lost by reason of any such cause. But it also provides that no such allowance shall be made unless a claim therefor is presented in writing to the architect within forty-eight hours after the occurrence of such delay. Thus it will be seen that the contract expressly provides for a notice in writing, and the owner cannot he deprived of the benefit of that stipulation in his agreement. The obligation of the contractor to make claim for an extension of time in the manner prescribed by' the contract was a condition precedent to his right thereto” (Cases cited).
It appears that, while this stipulation is universally upheld, the courts also hold that the provision for a written notice may be waived, and that a waiver will be implied where, from the conduct of the owner of architect, the contractor is led to believe that the -requirement of written notice will not he insisted upon.
As we have said, the court specifically found the fact to be that the requirement for written notice under article 7 was waived, and we do not think this finding is clearly against the preponderance of the evidence. The court found that, at the direction of the architect, the contractor had performed certain extra work and labor and had made certain changes. The right thus to direct the contractor was given the architect, hut the contract provided that it should he done upon written directions, yet the panties treated oral directions as sufficient.
The court made the following finding:
“The court further finds that said Mitchell Sellig-man, defendant’s architect, mentioned in said contract, received and accepted verbal notice of all delays caused by him or said defendant, and that the conduct of said Selligman constitutes a waiver of the defendant’s right to demand later written notice of said delays, and that, by the conduct of said defendant, she is now estopped to set up her demand for written notice or claim for extension of time on account of the delays caused by the said defendant and her said architect.”
We think the testimony sustains this finding. The contractor from time to time reported to the architect the delay which was being occasioned by the architect. These notices were usually given personally or in conversation over the telephone, and there was no intimation that they would not be received as notice because they were not in writing.
In the case of Schmulbach v. Caldwell, 196 Fed 16, (C. C. A.), a contract very similar to the one here involved was under consideration, and the court, in holding that the provision for written notice might be waived by the apparent acceptance of an oral notice, said:
“It is evident that neither of the parties were adhering strictly to all of the terms of the contract in respect to these items of extra work. There is ample ground upon which to base the conclusion that, in regard to them, there was, by course of conduct, a waiver of the terms of the contract. They enter into the building, enhance its value, and defendant is in the enjoyment of them. As said by Mr. Justice Holmes, in Bartlett v. Stanchfield, 148 Mass. 394, 19 N. E. 549, 2 L. R. A. 625, cited in the opinion of Judge Dayton, dealing with á charge for extras in a suit upon a building contract very similar to this: ‘Attempts of parties to tie up by contract their freedom of dealing with each other are futile. The contract is a fact to be taken into account in interpreting the subsequent conduct of plaintiff and defendant, no doubt.’ While courts will enforce contracts as made by parties, they will require that both parties shall ‘live up’ to them. One may not by a course of conduct induce another to act upon the understanding that there is a waiver of strict performance, thereby obtain an advantage or benefit, and repudiate liability for fair compensation by invoking the terms of the contract. To do so is inequitable. Whatever difficulties a court of law may find in dealing in such cases, by reason of technical rules of pleading, disappear in a court of equity, where it is apparent that one party has acquired a benefit from the work done and material furnished by the other, under such circumstances as to make it inequitable to withhold compensation. It is manifest that the extras for which no written order was given come within this' principle. The master has properly held the plaintiffs to strict proof in respect both.to the necessity for the work and its value. He has rejected every doubtful claim. These findings have been approved by a learned and careful judge. The course pursued in the construction of the building in this respect is much like, and we think comes clearly within, the well-reasoned and sustained opinion of this court in Jefferson Hotel Co. v. Brumbaugh, supra.” See also Huber v. St. Joseph’s Hospital, 11 Idaho 631, 83 Pac. 768; Vanderhoof v. Shell, 72 Pac. 126, 42 Ore. 578; Carter v. Root, 121 N. W. 952, 84 Neb. 723.
Upon a consideration of the whole case we are of the opinion that the court below properly held that the provision for written notice of delays occasioned by the owner’s agent, the architect, was waived, and that the oral notice given sufficed, and fully warranted the court below in refusing to charge the contractor with the delay in construction which the owner’s agent occasioned, and the decree of the court below will therefore be affirmed, and it is so ordered. | [
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McHaNey, J.
Appellant was convicted and sentenced to one year in the penitentiary and to pay a fine of $10 on a charge of abortion, under an indictment which, omitting formal parts, reads as follows:
“The said Gordon Winfrey, in the county, district and State aforesaid, on the 20th day of January, 1925, did willfully, unlawfully and feloniously administer and prescribe to one Eithel Volentine, a woman with a child, before the period of quickening, drugs and medicines, with the willful, unlawful and felonious intent then and there and thereby to procure an abortion.”
From the judgment and sentence against him appellant has appealed to this court, and the principal error assigned for reversal of this case, if not the only one, is that the court erred in permitting the witnesses Joe Yolentine and Mrs. Joe Yolentine, to testify to statements made by Eithel Yolentine a short time before her death, that appellant had given her a certain drug for the purpose of causing her to abort, and that appellant had intercourse with her some time in October, before her death in January, from which she became enceinte, on the theory that such statements were competent and admissible as dying declarations. The testimony of these two. witnesses was objected to, and, on being overruled, proper exceptions were saved, and were preserved in the motion for a new trial. These objections and exceptions were well taken, not because the said Eithel Yolentine was not in extremis, but because dying declarations are never admissible except in homicide cases, where the circumstances of the death of the deceased and the guilt or innocence of the party charged are the subject of the inquiry.
In the case of Haley v. State, 99 Ark. 356, 138 S. W. 631, Haley was indicted and convicted of the crime of rape of one Florence Brown, and her declarations prior to her death were admitted.as dying declarations. In reversing the case this court said:
“Appellant was convicted of the crime of rape. The court permitted evidence of the dying declarations of the victim of the alleged assault to go to the jury. The Attorney General confesses that the trial court erred in its ruling. This presents the only question for our consideration. The confession of error must be sustained. ‘Dying declarations’, says the Supreme Court of Alabama, ‘according to the unbroken current of modern authorities, are admissible only in cases of homicide, when death, with the circumstances attendant on it, and the guilty agent in producing it, is the subject of inquiry.’ Johnson v. The State, 50 Ala. 459; Greenleaf on Ev. (15 ed.) § 156; Wigmore on Ev. (3 ed. Bowlby), § 1432. We have no statute making the dying declarations of a victim of rape admissible as evidence. In the absence of such statute, it was error to admit them in the case at bar. It is not shown that the declarations were of the res gestae. The judgment is therefore reversed, and the cause is remanded for a new trial.”
In the case of St. L. I. M. & S. Ry. Co. v. Enlow, 115 Ark. 584, 171 S. W. 912, where the lower court had permitted the introduction of a dying declaration in a civil case, this court said: “It is well settled that dying declarations are not admissible except in prosecutions for homicide, where the cause of death is under investigation.”
The court in that case cited Haley v. State, supra. The only exception made by our statute to the above rule, so far as we are advised, is § 783, C. & M. Digest, which is as follows:
“The mother shall be a competent witness in all cases of bastardy, unless she be legally incompetent in any case; and, if she be dead at the time of the trial, her declarations, made in her travail and proved to be her dying declarations, shall be evidence.”
The above rule with reference to abortion has not been changed.
In 1 C. J., p. 326, § 84, discussing the subject of abortion, it is said:
“At common law, dying declarations are admitted in evidence only when the death of the declarant is the subject of the charge and the cause of the death is the subject of the declarations, and, in the application of this rule, it is established by the great weight of authority that they are admissible in homicide cases only. Within the general rule just stated, where the offense defined by the statute consists of procuring or attempting to procure an abortion, without reference to whether or not the death of the woman is caused thereby, no ground exists in an abortion case for the admission of the dying declarations of the woman whose death was caused by the abortion charged. It is therefore held in such cases that the dying declarations of the woman are not admissible, unless the rule of evidence is changed by statute. ’ ’
This text is supported by a great many authorities. At § 85 the same authority says:
“In several States the dying declarations of a woman whose death resulted from an abortion or an attempt to procure an abortion on her have been made admissible by statute.”
But, as above stated, no such change has been made in our statute.
Appellant was indicted under § 2598 of C. & M. Digest, which is as follows:
“It shall be unlawful for any one to administer or prescribe any medicine or drugs to any woman with child, with intent to produce an abortion or premature delivery of any foetus before the period of quickening, or to produce or attempt to produce such abortion by any other means; and any person offending against the provisions of this section shall be fined in any sum not exceeding one thousand dollars, and imprisonment in the penitentiary not less than one nor more than five years. Provided, this section shall not apply to any abortion produced by any regular practicing physician for the purpose of saving the mother’s life.”
Under § 2358, C. & M. Digest, the law is different with reference to the administering to any woman pregnant with a quick child any medicine or drugs, or shall employ any instrument or other fiieans, with intent to destroy such child.
In 1 R. C. L., § 21, discussing the subject of dying declarations in abortion cases, it is said: “As a general rule, dying declarations of the woman are not admissible against the accused, where the prosecution is for the abortion and not for the homicide of the woman. ’ ’
It necessarily follows from what we have said that the court erred in admitting the dying declaration, which calls for a reversal of this case. The cause will therefore be reversed, and remanded for a new trial. It is so ordered. | [
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Kirby, J.
The railroad company brought this suit in a-justice court of Independence County for a balance of $73 claimed to be due on a correct charge of freight rates on three cars of hay shipped from White Bead, Oklahoma, to appellee at Tuckerman, Arkansas, the charge and payment for such shipment being made under a rate of 5iy2e per hundred, by mistake or otherwise, when it should have been on the basis of the correct rate fixed by the Interstate Commerce Commission for shipment of a like kind of 61%0 per hundredweight.
Appellant attempted to introduce in evidence what it claimed to be the original bills of lading and waybills of the three shipments, which the court excluded, same not being identified by any witness who had any knowledge of or connection with the transaction. It introduced certificates from the Interstate Commerce Commission showing the rates that should have been applied and charged for transporting the hay. There was also a letter from Sisk to the auditor of the freight rates of the railroad company introduced in evidence, denying, that the company should have any claim against him for freight charges, since he ascertained from the agent of the road, before buying the hay, that the rate was 5iy2c per hundred; otherwise the hay would not have been purchased.
There was no testimony introduced showing the shipments nor the weight of the commodity shipped, and the court directed a verdict against the railroad company, from which it prosecutes this appeal.
It is contended that there was some testimony supporting plaintiff’s claim, and that the court erred in directing a verdict against it.
The court excluded from the consideration of the jury the original bills of lading and the waybills showing the contents of the car, the weight of the product and the rate charged in what purported to be such bills, because same were not identified by any witness wbo had any knowledge of the making of same or the transactions reflected by them. It correctly told the jury that the plaintiff would be. entitled to recover the difference between the rate actually charged and paid and the correct rate that should have been charged, but that there was no competent evidence on which they could find for the railroad company, and directed the verdict against it accordingly.
The most that could have been inferred from the letter acknowledged to have been written by Sisk was that the railroad company should have no claim against him at all, since he would not have purchased any hay for shipment if he had not understood that the rate of 5iy2G per hundred had-been correctly given him. This admission alone could not, of course, have indicated the amount the railroad was entitled to recover, and no error was committed in directing "the verdict.
The judgment is affirmed. | [
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Wood, j.
The plaintiffs filed a complaint in the chancery court of Greene County, for the benefit of themselves and all others similarly situated, against the defendants, the. Mud Slough Drainage District No. 1 of .Greene County, Arkansas, and its commissioners. The complaint 'alleged in substance that the plaintiffs were the owners of real estate situated in the district; that the defendants, Donaldson, Bridgers and Bertig, had been appointed commissioners of the district and were acting as such. Plaintiffs set forth the original petition filed in the county court, signéd by certain landowners of the‘district, petitioning for the creation of the district,, in which petition is set forth the description of the lands to be embraced in the district and the improvements to be made. With the petition was filed a bond, as required1 by § 3607 of C. & M. Digest, to pay for the expenses of the survey of the proposed district in case the district was not formed.
The complaint then sets out the order of the county court appointing an engineer to survey the lands described in the petition for the creation of the district, and directing him to give bond, make his survey, and report to the court. 'The complaint alleged that the engineer sp appointed entered into a bond as required by law and went upon the lands, made the -survey, and filed his report with the county court. The-complaint then set out his report. The complaint alleges that, kpón the filing of 'this report, the court made an order directing the clerk to give notice to all persons to appear before the. court on a certain day, as required by statute, to show- cause in favor of or against the establishment of the-district. The complaint then alleged that the notice was given as réquired by law, and' sets forth the notice; that, on the day set for the hearing of the petition, the county court of-Greene County granted such petition and entered of record an order reciting the various- steps that had been taken, and finding that these steps were as required by law, together with the order of the county court creating the district and the' appointing of the; commissioners. ' . ■ •
The complaint'then'alleged that the commissioners duly qualified as such and entered upon their duties, and that they proceeded to-carry out the improvements contemplated by' the' district, pursuing all steps as required by law. The complaint in detail sets out the steps that-were-thereafter' taken by the commissioners as required by law, alleging that they formed plans and estimates for the district, that the county court adopted these plans', and that the' coihihissioners'1 went upon the lands and assessed the benefits. The complaint alleged that the commissioners filed, the report of the assessment of benefits, and gaye notice as required bylaw to the landowners within the district to appear on a certain day named in the notice to present objections, if any, to the'assessment of benefits; that the assessment of benefits as made by the commissioners wás duly confirmed, and that these assessments became a cloud on plaintiffs ’ title’ to the real estate owned by them in the district; that the order of the court creating- the district was void for the reason that the petition filed for the creation of the district “is so indefinite and uncertain as to the law under which the district is sought to be'organized and established that the notice of the heating'did nót give the court jurisdiction to hear and establish the district as it attempted to do. Plaintiffs allege that the defendants, the’commissioners of the district, were seeking1 tó sell bonds to the amount of $50,000 and to let á contract for the cutting of the ditch, and, if not restrained, would do so. The prayer of the complaint was that the order creating the district be declared hull and void- and the commissioners and officers of the district be enjoined from further proceeding under the order of the court creating the district, and for all proper relief.
The defendants demurred to the complaint on the ground that it does not state facts sufficient'to constitute a cause of action. The court sustained the demurrer. The plaintiffs refused to plead further, and stood upon their complaint. The court thereupon entered a decree dismissing the complaint for want of equity, from which is this appeal. ; •
A careful examination of the original petition and all of the proceeding's thereunder, as set forth in the complaint, demonstrates that the petitioners and the county court proceeded to create the drainage district in controversy under the alternative system of drainage districts, as provided in. chapter No. 51 of, Crawford & Moses? Digest, §§ 3607- et- sect, and 'the amendments thereto. See act 123 of the General Acts of 1921, page 388.
The only objection urged in the complaint and by counsel for appellants here to the creation of the district is that it does not appear in the petition or the order of the county court creating the district whether the proceedings creating the district were under what is designated in the statute as the “alternative system of drainage districts,” supra. It was wholly unnecessary for the petitioners and the county court to expressly declare in the petition or in the order creating the district that the proceedings were under the alternative system of drainage districts as set forth -in .0. & M. Digest, supra. The fact conclusively appears from'the proceedings themselves, as set forth in the complaint. It certainly does not render the original petition for the creation of the district and the order of the court based thereon invalid because the petition .sets forth, with more particularity than is required by the law under which the district is formed, a description of the lands to be embraced within the district and the improvements contemplated.
The court ruled correctly in declaring that the complaint does not state, a cause of action, and in entering its decree .dismissing the same. The decree is therefore affirmed. | [
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Humphreys, J.
This suit was instituted on the 8th day of June, 1922, in the chancery court of Prairie County against H. C. Argo, Bank of Brinkley, Fayette R. Plumb, Inc., and D. H. Echols as receiver for H. A. Daggett & Company, to recover $4,000 and interest on two promissory notes evidencing the purchase .money for the timber on 2,300 acres of land in Prairie and Woodruff counties, particularly described in .the complaint, which timber they sold to H. O. Argo on the 8th day of October, 1919; and to enforce a vendor’s lien against such of the timber as had not been removed when the suit was brought, which lien they reserved in the timber, deed they executed to II. C. Argo. It was alleged in the complaint that H. C. Argo sold, said timber to H. A. Daggett & Company, and that H. A. Daggett & Company sold the timber on said tract and on another tract of about the same acreage to appellant, Fayette E. Plumb, Inc., for $15,000; that appellants had removed large quantities of timber from the land without paying the notes, not leaving sufficient timber in value to pay same.
The Bank of Brinkley had no interest in the suit further than that the said Daggett & Company had given them a lien on the timber to secure a note. H. C. Argo filed no answer. D. H. Echols, as receiver for H. A. Dag-gett & Company, filed an answer, and denied liability, and pleaded payment of the notes sued on; and appellant, Fayette E. Plumb, Inc., filed an answer, in which it denied all liability, and pleaded payment of the notes. The latter-named appellant is the only one who made any defense to the action. H. C. Argo and H. A. Daggett & Company are, and were, insolvent on the date of the filing of the suit.
The cause was.submitted upon the pleadings and testimony adduced by the respective parties, which resulted in a finding by the court that H. C. Argo and H. A. Dag-gett & Company were insolvent, and that appellant, Fayette E. Plumb, Inc., had removed timber exceeding in value the amount sued for, and were liable to appellees to the amount of their claim in the sum of $4,000, with interest thereon at the rate of 6 per cent, per annum from the 8th day of October, 1919, to the date of the trial; and a consequent judgment in favor of appellees against appellant, Fayette E. Plumb, Inc., in the total sum of $5,577.33, from which is this appeal.
.Appellant first contends for a reversal of the decree on the alleged ground that, according to the undisputed testimony, the lien notes executed by Argo to appellees for the timber were paid and the lien extinguished by their acceptance of the notes from him secured by other collateral. The.testimony referred to and relied upon by them to sustain this contention consists of a ’letter written to II. C. Argo by W. E. Pharr on June 8, 1921, acknowledging the receipt of the $4,000 note and four hundred shares of H. A. Daggett Company stock, together witli Argo’s statement tliat the stock had a par value of $10,000 at the time it was placed as security to Pharr; and the two following excerpts from the testimony of Mr. Argo :
“At the request of W. R. Pharr my personal notes were given Avitliout security in satisfaction and in lieu-of the lien notes referred to, and, as nearly as I can recall, the transaction occurred shortly after the maturity of the lien notes, as, according.to Mr. Pharr, the personal notes were wanted in.order to substitute them for the lien notes.”
“I do not remember the date of the unsecured notes. They were mailed to W. R. Pharr at Memphis, Tennessee. Upon arriving at the conclusion later that my financial responsibility was insufficient to afford security for payment of the. substituted personal notes, I voluntarily gave W. R. Pharr all the shares of stock representing my interest in the H. A. Daggett Company. This was accepted by him' and understood at the time as being ample security. ’ ’
We think learned counsel are mistaken in concluding that'.the testimony of Mr. Argo stands in the record undisputed, to the effect that he paid the notes sued upon by giving his personal note in lieu of said lien notes. It is reflected by the record that the notes sued upon, or lien notes, Avere never surrendered by W. R. Pharr to Mr. Argo in exchange for his personal note with neAV collateral attached. W. R. Pharr testified in substance that the original notes were never paid or intended to be paid by the subsequent notes given to him by H. C. Argo.; that the subsequent notes Avere reneAval notes given him by Pharr so that he might pledge them from time to time to his banker as collateral; that they Avere merely accommodation paper, because he could not pledge past due paper to the bank as collateral; that, after he had used the reneAval notes from time to time, the bank refused to take them, and W. R. Pharr attached the H. A. Daggett & Company stock ás collateral so that he could use same Avith his banker; that, soon after the stock Avas attached, it was ascertained that it was Ávorthless, and he was unable to use the renewal notes as collateral security with his banker. The following questions and answers appear in the testimony of W. R. Pharr:
“Q. Have you ever hypothecated it? (Referring to the first renewal note). A. Yes, I used it as collateral from time to time. As the notes would fall due and payments were not paid, they would have to be renewed, and when the note would fall due it Avould have to be returned, and Argo would send me a new note for 90 days, and from time to time that one would be renewed, but never was there a payment made, and they were renewed so many times and I had so many notes that one of them got misplaced. Neither of the notes, principal or interest, have been paid. Q. Mr. Argo delivered to you some stock of the H. A. Daggett Company as security, did he not? A. These notes as they fell due and I was unable to collect, I was able to use as collateral for a while, but they being refused so many times, they soon lost any value they might have at the bank, and I told Mr. Argo that I would not push him in any way, and if he Avas not able to make any payments, I would renew the notes, but the bank refused to accept them as collateral, then he said he would give me some additional security. The stock in a short time Avas not Avorth the paper it Avas Avritten on, as the concern Avent out of business.”
In the letter relied upon the neAV notes referred to are called renewal notes. The fact that the original notes were not taken up but left in the possession of W. R. ■Pharr- is a strong circumstance tending to support the theory that the new notes were not intended as payment of the old notes. Another strong circumstance tending to support the theory that the neAV notes were not given in satisfaction of the old notes is that it Avould be unreasonable for one to accept unsecured notes in payment of secured notes.
After a careful reading of the record Ave are unable to say that the finding of the chancellor to the effect that the neAV notes were not given in liquidation of the original or secured notes is contrary to a clear preponderance of the evidence. The governing rule of law is that, without an agreement to that effect, the renewal, of a note will not operate as a payment of the original note. Griffin v. Long, 96 Ark. 272, 131 S. W. 672, 35 L. R. A. (N. S.) 855, Ann. Cas. 1912B, 622; First National Bank of Helena v. Solomon, 170 Ark. 555, 280 S. W. 659.
Appellant’s next contention for a reversal of the decree is that the appellees estopped themselves from setting up any claim against appellant, Fayette R. Plumb, Inc., by allowing it and its predecessors to remove the timber without objection by providing in the timber deed that the timber should be removed and the land turned back from time to time for agricultural purposes, before the maturity of the lien notes. A lien was retained in the deed upon the timber for the purchase money, and it was the duty of those removing the timber to pay the purchase money or to reserve enough out of the proceeds to satisfy the lien. Leniency on the part of appellees in the collection of the purchase money did not and could not have the effect of relieving the parties who removed the timber from paying the purchase money therefor. The timber deed was on record, and the appellants had constructive notice of the existence of the lien. None- of them were innocent purchasers. There is nothing in the record tending to show that appellees induced appellants to buy the timber on representation that they had waived or released, their claim to the purchase money therefor.
' Appellant’s last contention for a reversal of the decree is that the testimony fails to show that appellant, Fayette R. Plumb, Inc., cut and removed - as ■ much as $4,000 worth of timber off the land. Said appellant put up a mill .on the property and cut and removed the hickory-timber off the land for two or three years. The tésti-mony reveals that they paid $15,000 for hickory timber on this tract and an adjoining tract of about the same size, and that there was about the same amount of hickory timber on each tract. The logical inference is that appellant cut and removed practically all of the hickory timber off the land, for which it paid $7,500.in the tree.
No error appearing, the decree is affirmed. | [
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Smith, J.
Appellee brought this suit as the administrator of the estate .of Caroline Ashbranner, to recover damages to compensate the pain and suffering endured by his intestate, which resulted from her being struck by one of the passenger trains of the appellant railroad company.
The deceased was a widow, seventy years old at the time of her death, and had no relatives, except some nephews and nieces, and the suit was brought to recover only for the pain and suffering.
The suit was tried upon the theory that a proper lookout had not been kept, and that, had this been done, the presence of the deceased on the track and the peril of her position would have been discovered in time to have avoided the injury. There was a verdict and judgment in favor of appellee in the sum of four thousand dollars, from which is this appeal.
It is first insisted, for the reversal of the judgment of the court below, that the capacity of the plaintiff as administrator to sue was not shown, for the reason that the letters of administration had been issued by the clerk of the probate court in vacation, and had never been approved by the probate court in term time, although several terms of the court had intervened between the date of the issuance of the letters and the trial of the case.
In the case of St. Louis-San Francisco R. R. Co. v. Pearson, 170 Ark. 842, 281 S. W. 910, the facts in regard to the letters of administration were identical with those in the instant case, and we there held that the administrator had the right to maintain the suit, although the action of the clerk in vacation had not been approved by the court in term time. "We there said:
“It is next insisted that the record shows that Eunice Pearson was appointed administratrix of the estate of J. L. Pearson, deceased, by the clerk in vacation, and that there can he no recovery because the record does not show that the vacation appointment was confirmed by the probate court when it next convened. Our statute provides that it shall he the duty of the courts of probate in term time, or the clerks thereof in vacation, subject to the confirmation or rejection of the court, to grant letters testamentary and of administration. Crawford & Moses’ Digest, § 4. Letters of administration granted in vacation are not, under the terms of the statute, limited in point of time, so as to continue only to the succeeding term and then expire, unless confirmed by the court. They are subject to the confirmation or rejection of the count, and it is the duty of the court to pass upon them; but they are valid until they are rejected.” (Citing- authorities).
Appellant insists that, under the undisputed evidence, a verdict should have been directed in its favor, for the reason that the testimony of the engineer and fireman, which is not disputed, makes a case of non-liability.
It may be conceded that, under the testimony of the engineer and fireman, no liability was shown, but we do not think the testimony of these witnesses was so undisputed that we must say it was arbitrary for the jury not to accept it as true.
Deceased, at the time of her death, was returning to her home from a visit to a neighbor, about 3:30 in the afternoon. She reached the railroad track, and witnesses who saw her just before she was injured testified that she was walking between the rails. She had walked down the track, which at that place runs through her field, a distance of about two hundred yards, and the track ahead was straight for a distance of about'a mile and a half. The train consisted of three cars and the engine, and the engineer testified that, just before he had rounded the curve, he had whistled for a crossing, and had rung the hell, and, when he came upon the straight track, he saw the deceased a quarter of a mile ahead, and' he whistled for her,- and, when she did not leave the track, he whistled again when about three hundred yards away, and deceased stepped, off the track and was standing in the clear, about three feet from the end of the ties, as the train passed her. .The engineer testified that he had been on this run about fifteen years, and knew deceased, and recognized her as he passed; that, after the engine had passed her, he looked back, and saw her falling into the train, which was running only about twenty miles per hour. He stopped the train in about its length, and backed it up the track until the baggage car was opposite deceased, who was then lying-on the ground, and the train crew picked the deceased up and put her in the baggage car. She was carried to Manila, the next station in the .direction the train .was going, and was later carried to the home of one of her nephews, where she died about midnight. The testimony of the fireman is to substantially the same effect.
The testimony shows the deceased received the following injuries: Her leg was broken above the knee, her upper arm was broken, and she received a blow just above the hip. From time to time she spat up blood, and suffered much pain. A niece, of deceased’s, who was with her when she died, testified that there were intermittent periods of consciousness and unconsciousness.
Witnesses on behalf of appellee testified deceased was walking between the rails, and the whistle was not sounded, and the bell was not rung, but that they did not see the injury, because the train intervened between them and deceased. That they observed the train stop in the field without having rung the bell or blown the whistle, and that fact .attracted their attention, and they went over to the train, and observed that the grass and weeds along its side were crumpled and mashed down for the distance of about sixty feet, as if some one had been dragged over them. Appellant attempts to explain this circumstance by asserting that certain pas sengers, as well as members of the train crew, gut off the train, and might' have mashed down the weeds and grass.
The duty of the operatives of the train to keep a lookout has been defined in numerous decisions, and it is conceded that the instructions in .the case correctly declared the law. It will therefore be unnecessary to discuss the law of the case.
One of the instructions given at the request of appellant told the jury that, if the engine passed deceased without striking her, and she later fell into the train after reaching a place of safety, there was no liability against the railroad company, and to return a verdict in its favor.
It is the insistence of appellant that the undisputed testimony shows that the engine did not strike deceased, and that she was injured in the manner testified to by the engineer and fireman, and that the court should therefore have directed a verdict for the defendant. The correctness of this insistence is the principal question in the case.
The testimony is not undisputed, and we think in its entirety, with the inferences fairly deducible therefrom, is legally sufficient to support the finding made, that a proper lookout was not kept, and that the presence and peril of deceased could and would have been discovered, had the lookout been kept, in time to avoid injuring her.
There is no question but that deceased’s presence on the track would have been discovered had a lookout been kept. Indeed, the engineer testified that he did see her, and several witnesses testified that no warning signals were given. There was testimony that the beam of the engine was about two feet above the rails, and that the deceased, who was a small woman, was struck and badly bruised above the hip, the bruised place being about the height of the beam. We are also of the opinion that the mashed condition of the grass and weeds warranted the inference that the deceased was dragged by the train, rather than that she had fallen into it. At any rate, we are unable to say that the verdict of the jury was not supported by sufficient testimony, and the finding of liability is therefore affirmed.
It is finally insisted that the verdict of the jury, which was for $4,000, is excessive, inasmuch as the plaintiff sued to recover only for the conscious pain and suffering. There is no fixed rule by which damages to compensate pain and- suffering can be measured, and we can only determine what appears to be fair and reasonable under the circumstances of. each case, and much must be left to the determination of the jury, where it does not appear that the verdict was the result of passion or prejudice.
The deceased’s arms and legs were broken, and she received a blow 'just above the hip, and, as a result of these injuries, she spat up blood, especially when she was moved in the bed. The testimony shows the "deceased lived something over eight hours after her injury, and that she was conscious most of the time, although there were periods of unconsciousness. The deceased groaned and complained of her suffering. Under these circumstances we do not think the verdict is so excessive that it must be reduced by us, and it' is therefore affirmed. | [
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Haiit, C. J.,
(after stating the facts). The decision of the chancellor was wrong. In order to better show the reasons which lead us to this conclusion, it will be necessary to recapitulate under this heading the material facts.
Under the will, the testator, after making small legacies to various relatives, left the remainder of his estate to his widow and appellee, who was his daughter and sole heir at law. He left one-half of the remainder of his estate to his wife absolutely, and the remaining one-half was left in trust to appellee. A brother was named as executor of the will, and was also appointed trustee. Item 10 of the will, which is copied in our statement of facts, deals with the portion of the estate which appellee was to receive. Cecil M. Drummond, the daughter of appellee, mentioned in item 10, has attained the age of 20 years, and it is conceded that the title to the 1,492% shares of stock'in appellant became vested in appellee on August 11,1925. The trustee named in the will, in carrying out the trust, made advances to appel-lee in 19'24 and 1925 amounting to $1,357.03. The trustee died in May, 1926. The appellant collected several life insurance policies in its favor on the life of said trustee, which enabled it to declare a dividend of ten per cent.
Appellant concedes that appellee is entitled to the dividend of ten per cent, on her stock, which amounts to $3,731.25, but claims that it is entitled to deduct therefrom the sum of $1,357.03, which it advanced to said trustee for her under the will. Appellee contends that appellant is only entitled to recover the sum of $225.83 advanced by it to her under the will after the death of said trustee. It is apparent to us that the advances provided for in item 10 of the will were to be made out of her part of the estate. That appellee so interpreted the will is evident from the fact that she conceded that appellant is entitled to deduct from her dividend the amount which it actually advanced to her.
We think that appellant is also entitled to recover the amount it advanced to the trustee for her. Under the terms of the will, the portion of the estate left to appellee wiaS placed in trust for her until her daughter should reach the age of 20 years. During this period of time it was left to the discretion of the trustee to make advances to appellee. The bookkeeper of appellant testified that he knew of his own knowledge that the various amounts makiug up the $1,357.03 were paid by appellant to T. J. Walbert as trustee for Ethel D. Woulfe. lie also knew that these amounts were paid by said Walbert as trustee to Ethel D. Woulfe. Thus it will be seen that the advances were made in strict compliance with the provisions of the will. When the dividends actually accrued, appellant had a right to deduct from the amount due appellee that portion which it had already paid to appellee in advance of declaring a dividend. Under our system of pleading, the litigiants may settle in a single suit all matters in dispute between them, and appellant had a right to deduct from the dividend which it owed appellee all sums advanced by it under the terms of the will, whether to appellee directly or to the trustee for her. Payment of it to the trustee was a compliance with the terms of the will, and so constituted a payment to her, and it was entitled to deduct that, amount from the dividend. The very object of placing the property in trust was that the trustee should handle the estate left to appellee and that she should not be put in control of it until her daughter reached the age of 20 years. Coates v. Milner, 134 Ark. 311, 203 S. W. 701; Funk v. Young, 138 Ark. 38, 210 S. W. 143, A. L. R. 79; and Church v. Jones, 167 Ark. 326, 268 S. W. 7.
The result of our views is that the decree will be reversed, and the cause will be remanded with directions to the chancery court to allow plaintiff to deduct from the dividend of $3,731.25 declared in June, 1926, the sum of $1,357.03, advanced by it in 1924 and 1925 to T. J. Walbert, trustee for appellee, as well as the sum of $225.83 advanced by appellant directly to appellee in 1926; and to render judgment in favor of appellee against appellant for the balance due and the accrued interest, and for further proceedings in accordance with the prin- • ciples of equity and not inconsistent with this opinion. It is so ordered. | [
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Kirby, J.,
(after stating the facts). It is contended that the decree should be reversed and the cause dismissed, it never having been properly revived in the name of nor against his heirs, after the death of M. D. Thompson, against whom suit was brought for the cancellation of the trustee’s deed conveying the lands to him, the purchaser, under the foreclosure sale.
The record shows the following order of revivor made by the court: “Come the plaintiffs and file their amended complaint herein. The death of M. D. Thompson being suggested to the court, this cause is revived in the name of'Vance Thompson, executor.”
But, considering this order, which could not have been made otherwise than with notice, and upon proof, except by agreement, with the conduct of Vance Thompson, executor, answering thereafter, without objection, the amended complaint against him testifying in the case, excepting to the account stated by the special master, and appealing from the decree, warrants this court in presuming, there being no showing in the record contradictory thereof, that the order of revivor was duly made against the executor, it could not operate as a revivor of the action against the heirs or devisees of M. D. Thompson. The heirs were necessary parties to the suit, after his death, it being an action affecting the title to and for the recovery of real property, and the revivor should have been made against and in the name of his heirs. Section 1063, C. & M. Digest; Ex parte Gilbert, 93 Ark. 307, 124 S. W. 762; and Dupree v. Smith, 150 Ark. 80, 233 S. W. 812.
The court proceeded to a hearing of the cause without revivor against the heirs or devisees of M. D. Thompson or treating them as proper or necessary parties, and the cause could not have been revived against them without their consent, after the expiration of one year from the time the order of revival might have first been made. Section 1065, C. & M. Digest. More than two years had expired after the death of the defendant, M. D. Thompson, on March 28, 1922, before an attempt was made to revive the cause, when revivor against the executor only was sought, no revivor having been asked or rendered against the heirs.
The right to revive the suit against the executor was contingent upon the revivor against the heirs, for the reason that the cause of action involved the title to real estate, and the right to recover rents against the estate of M. D. Thompson, deceased, was dependent upon the title to the real estate being adjudged to appellees, which could not have been done, of course, without the necessary parties before the court. The causes of action, not being severable, so that the appellees might revive and prosecute their suit for rents against the executor of the estate of M. D. Thompson, deceased, no valid judgment could be rendered against such executor, notwithstanding revival of the suit as to him, nor at all, since the necessary parties were not brought before the court, the revivor of the action against the heirs or devisees of the deceased was invalid, and the court was without .jurisdiction to make any adjudication in the case concerning the subject-matter of the suit. Ex parte Gilbert and Dupree v. Smith, supra.
Since there is no showing in the record proper of the names of the heirs or devisees of the said M. D. Thompson, nor any showing of an attempt to revive the suit against Vance Thompson as one of them, nor any appearance to or defense of the suit by him, after such attempted revivor, except as the executor of M. D. Thompson, in whose name it had been revived, there was no waiver by him of the defect, which would prevent his objection here to the lack of jurisdiction of the court to render a valid judgment that affects his individual interest.
The decree is accordingly reversed, and the cause dismissed. | [
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Smith, J.
This suit was brought by appellee, Brown, against appellant, Hinton, to recover on notes signed “Hinton Garage, L. T. Hinton,” dated July 24, 1923, it being alleged that “Hinton Garage’’ -was a copart-nership of whicli appellant Hinton was a member. Tlie notes sued on were renewals of prior notes, which had been executed by “Hinton Garage” to appellee’s order.
An answer was filed, in which it was denied that appellant was a partner at the time of the execution of the original notes or the renewal notes, and it was alleged that the notes sued on were usurious and void.
On the question of usury the following testimony was offered: In April, 1920, appellee loaned the Hinton Garage $3,400 in cash to pay for a carload of automobiles. This indebtedness was evidenced by two notes for $1,100 each and one for $1,200. There were certain credits on these notes, and one of them was paid in full by the sale of one of the automobiles. Appellee left the notes at the bank to be renewed by the execution of two new notes. It appears that the bookkeeper in the bank, in calculating the interest, compounded it, with periods of annual rest, and in this way interest at a greater rate than ten per cent, per annum was embraced in the renewal notes. It was shown, however, by the undisputed evidence, that appellee had not ordered this done and was not aware that it had been done, until it was shown by calculation at the trial that such was the case. Appellee disclaimed any intention of charging more than ten per cent., and appellant did not testify that there was any agreement to that effect. It appears therefore that the execution of the renewal notes in a sum which exceeded ten per cent, per annum was a mere mistake.
The court below was correct therefore in refusing to submit the question of usury to the jury, as the testimony shows only a mistake in the calculation, of which neither party was apparently aware when the renewal notes were executed, and the law is well settled that a mistake in the calculation of interest does not constitute usury.
In the case of Garvin v. Linton, 62 Ark. 370, 35 S. W. 430, 37 S. "W. 569, Mr. Justice Battle said:
“If the lender, by mistake of fact, by error in calculation, or by inadvertence in the insertion of a date, contracts to receive an illegal rate of interest, such mistake, error or inadvertence will not stamp the taint of usnry on such engagement, nor cause to be visited upon him who did not knowingly and intentionally disregard the law in this behalf the highly penal consequences of an usurious offense.”
The deposition of one Riley had been taken on interrogatories, by consent of parties, and at the trial this deposition was stricken from the files on motion of appel-lee, and that action is assigned as error. Inasmuch as the deposition was taken by agreement, either party had the right to offer it in evidence, and it would be error therefore for the court to refuse either party the right, but careful examination of the question and answers there contained discloses no competent and material testimony, and there was therefore no error in striking the deposition from the files.
Appellee testified that, while appellant denied owing the notes sued on, he offered to pay them if appellee would purchase appellant’s residence at the price of $10,000. This testimony was incompetent, as it appears to be an offer of compromise, and, as it was admitted over appellant’s objection, the judgment must be reversed on that account.
After the admission of this testimony over appellant’s objection, appellee was cross-examined concerning it, but this did not waive the error, as appellant had the right, after objecting and saving an exception, to attempt to remove the prejudicial effect of the incompetent testimony by cross-examining the witness who gave it. Pine. Bluff Co. v. Bobbit, 168 Ark. 1019, 273 S. W. 1.
Appellant admitted that-he had been in partnership with his son, L. T. Hinton, under the firm name of ITinton Garage, but he testified that he retired from the partnership in November, 1919, and it is admitted that the indebtedness to appellee evidenced by the original notes was not contracted until April, 1920. Appellant therefore insists that he is not liable, as the indebtedness was contracted after the date he ceased to be a member of the copartnership.
Appellee testified that he had had previous transactions with the firm, and that he made the loan upon the faith of appellant’s credit as a member of the partnership, and that he had no notice to the contrary at the time of the execution of either the original or the renewal notes.
Appellant admitted that no notice of a dissolution was published, but he offered in evidence a newspaper containing a warning order in which the name of the plaintiff was stated as “L. T. Hinton, under the firm name of Hinton Garage. ” This warning- order was published March 19,1923.
It will be observed that the date of this warning-order was long after the execution of the original notes, and what was said of a somewhat similar notice in the case of Anglin v. Marr Canning Co., 152 Ark. 1, 237 S. W. 440, is applicable here. In that case a partnership had been dissolved, and a local newspaper made editorial comment upon that fact. It was there said:
“There is no testimony tending to prove that they had published in a newspaper any notice of the dissolution of the partnership and their retirement from the firm. The editorials appearing in the paper were not such notice, and besides, there is no testimony to prove that these editorials were brought home to the appellant. Ho testified that he had not seen them.”
The cause was submitted under an instruction in which the jury-was told that, if appellee made the loan “on the faith of his belief that defendant was such a partner, then and in that event the defendant would be liable for the amount due on the notes sued on and interest, unless he gave actual notice to the plaintiff of (he dissolution of the firm, or gave notice generally of such dissolution by advertisement in some newspaper or otherwise, before said indebtedness was incurred, that, defendant had retired from said partnership.”
This instruction conforms to the law as announced in the case of Anglin v. Marr Canning Co., supra.
It is objected that tlie instruction made no distinction between the knowledge of appellee on the date of the original notes and the knowledge possessed by him on the date of the renewals. In other words, appellant insists that, if appellee had notice of the withdrawal of appellant at the time the notes were renewed, he cannot recover, although he did not have that notice when the original indebtedness was incurred.
We do not agree with counsel in this contention. If appellant was liable for the original notes, he is also liable for the renewal notes, because both sets of notes evidenced the same indebtedness. In the case of Dodd v. Axle-Nut Sign Co., 126 Ark. 14, 189 S. W. 668, it was said that “the time "when the debt was contracted was not when the renewal note was executed, but when the original debt was made and the original note given. ’ ’
In Gilmore on Partnership, page 267, it is said that: “Notwithstanding a dissolution, each partner has the implied power to do all acts necessary to settle demands against the firm and to complete transactions uncompleted at the time of the dissolution.”
We think the court was correct therefore in refusing to make the test of appellee’s right to recover the knowledge possessed by him at the time of the execution of the renewal notes, although appellee testified that he did not have this knowledge at that time. If appellant was liable on the original notes, the renewal thereof to cover the same indebtedness did not discharge the liability. N
For the error in admitting the incompetent evidence, proving an offer of compromise, the judgment of the court belowr must be reversed, and it is so ordered. | [
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Wood, J.
Separate actions were brought in the Pulaski Chancery Court by the appellants against the appellees. One of the appellants alleged that he was a taxpayer and owner of property in Improvement District No. 11 of Pulaski County, and the other appellant alleg*ed that he was a taxpayer and owner of property in Improvement District No. 12 of Pulaski County, Arkansas. The complaints are similar. It is alleged that each of the districts was created according to law on January 3 2, 1926; the allegations set forth the procedure in the respective districts, showing- that they were so created. After the above allegations, each of the complaints contains the following:
“Plaintiff further says that on the 23d day of May, 1927, the county court made an order appointing Hugh 17. Carter as engineer for the district, a copy of which order is hereto attached, marked Exhibit E, and made a part hereof. Plaintiff further says that on said 23d day of May, 1927, the said Hugh R. Carter filed plans, specifications and estimates of the cost of construction to he made in said district, same being a county road and not a part of the State Highway system, which plans were approved by the State Highway Engineer, and same filed in the office of the State Treasurer, as required by law, a copy of which estimate is hereto attached, marked Exhibit F and made a part hereof. And that the said Hugh R. Carter on said date attached to said estimate his affidavit, that said estimate was a true and correct estimate of the cost of improvements for said district, a copy of which affidavit is hereto attached, marked Exhibit Gr, and made a part hereof.
“And also on the 23d day of May, 1927, the commissioners for said district attached to said estimate their affidavit, setting’ forth that the estimate of the cost of said improvement was true and correct, a copy of which affidavit is hereto attached, marked Exhibit H, and made a part hereof. Plaintiff says that, upon the filing of said' estimate, together with the plans and specifications for said improvement, together with the affidavits of said engineer and the commissioners of said district, as above set out, the court made an order approving said plans, specifications and estimate, and pledging the county to the payment of fifty per cent, of the cost thereof, and appointing assessors for said district to assess the benefits to the land in said district arising from said improvements, a copy of which order is hereto attached, marked Exhibit “I,” and made a part hereof.
“Plaintiff further says that the assessors heretofore appointed by the court to assess the-benefits to the land in this district, on account of said improvement, filed their report with the county court on the 15th day of June, 1927. That a day was'fixed by the court for a hearing on said assessments, and that the county clerk published notice of said hearing, pursuant to the order of the county court, fixing the 29th day of June, 1927, as the day for said hearing, a copy of which order is hereto attached, marked Exhibit J, and made a part hereof.
“Plaintiff further says that, if said order is made approving’ the assessment of benefits to the land.in the district, the commissioners will then proceed to adopt a resolution authorizing the issuance of bonds and will proceed to issue said bonds and advertise same for sale; that the bond issue will be for the amount of $72,500 in District No. 11 and for $52,000 in District No. 12, and that they will pledge the revenue derived from the districts in payment thereof. That said commissioners have incurred considerable expense, which the taxpayers in said districts will be called upon to pay if not prevented by an order from this court.
“Plaintiff says that the formation of said district is unlawful and void: (1). Because the formation of said district is not authorized by law. (2). Because the county court has no authority to pledge fifty per cent, of the cost of construction of said road to be paid by the county for said improvement. (3). Because the Legislature of the State of Arkansas, on the 4th day of February, 1927, passed Act No. 11 of said session, by which all laws authorizing the formation of districts for road .improvements are repealed. (4). Because, by said act No. 11 aforesaid, the State of Arkansas has taken over all road improvements, thus nullifying the right to form districts, or make improvements in those already formed, or the county court to pledge a part of the cost of the construction .thereof.
“Wherefore, the premises considered, plaintiff prays the court for a temporary restraining order against the defendants to prevent them from further proceeding’ in this matter, and that, upon a hearing by the court, said restraining order be made perpetual, and for all other and proper relief.”
To ‘each of the above complaints exhibits were filed setting forth the steps that had been taken in the creation of the districts and all procedure had before the county court with reference thereto to the time of the filing’ of the complaints. The appellees filed demurrers to the complaints, alleging that they did not state facts sufficient to constitute a cause of action. By consent of parties, the causes were consolidated for a hearing and were heard upon the demurrers to the complaints. The court sustained the demurrers. The appellants stood upon their complaints, and the court entered a decree dismissing the complaints on the ground that they failed to state a cause of action. From that decree is -this appeal.
Section 26 of act No. 5 of the Acts of the Special Session of the General Assembly of 1923, commonly known as the Harrelson Law, is as follows:
“It is declared to be the policy of the State that, in the future, road improvement districts which, at the time of the passage of this act, shall not have made any construction contract or issued any bonds, shall not undertake the improvement of public roads in their respective districts where more than 50 per cent, of the construction costs of the improvement, plus the interest on borrowed money or bonds, and the cost of extending and collecting taxes and such other administrative expenses as may be allowed by law, shall be collected from the lands in the district; and, to accomplish this result, no road improvement district hereafter formed and no road improvement district heretofore formed under general law or created b}r special act, in which no construction contract has been let at this time, or in which no construction work has actually been done, or in which no bonds have been sold, shall issue any bonds mitil a careful estimate of construction costs of the improvement has been prepared by the commissioners and engineei's of the State Highway Commission or the district, and certified by the affidavit of a majority of the board of commissioners and the engineer, and approved by the State Highway Engineer, and filed in the office of the State Treasurer. Such estimated cost shall contain an estimate of the actual construction cost. On the filing- of such estimate the State Treasurer shall record it in one of the record books in his office. If there has been or may thereafter be allotted to such district State or Federal aid funds equal to fifty per cent, of such estimate, or if the county court in which such district is situated shall allot such district sufficient county funds, payable in the ensuing year, sufficient in therúselves, or when added to allotted State or Federal aid, or cash contributions from other sources certainly available, sufficient, in the aggregate amount, to equal at least fifty per cent, of such estimated construction cost, the commissioners of the district may issue bonds in an amount not to exceed fifty’' per cent, of the estimated cost, as shown by the estimate filed with the State Treasurer; provided, however, that, if the said proposed improvement is not of a State Highway, and should it be ascertained afterwards that the work cannot be completed within such estimated cost, or, because of unforeseen contingencies, the completion of the improvement will cost exceeding such estimate, the commissioners of the district may issue additional bonds for such part, or all of the excess cost, as may be necessary, if a majority in number of the landowners in fee simple in the district, voting at an election to be called and held in the manner and after the procedure set forth in § 25 of this act, are in favor of the completion of the improvement. Any commissioner or engineer who shall willfully make or sign any false estimate of cost for filing with the State Treasurer shall be guilty of perjury, and shall be punished accordingly. It is made plain that this section and § 25 do not apply to districts that have done part of the work of improvement and the -work is unfinished, or have outstanding construction contracts or bonds, but such districts may complete their work of improvement without being- affected by this section or § 25 of this act. ’ ’
Section 2 of act No. II of the Acts of 1927, commonly known as the Martineau Law, is as follows:
“ Sections 21, 22, 23, 24, 25, 26, 27, 28, 29 and 32 of act No. 5 of the Extraordinary Session of the Forty-fourth General Assembly of the State of Arkansas, approved October 10, 1923, with all amendments thereof, are hereby repealed.”
Act No. 11 was passed February 4,1927. The allegations of the complaints and the exhibits thereto show that on the 23d day of May, 1927, the county court of Pulaski County proceeded, under the supposed authority of § 26 of the Harrelson Law, to appoint an engineer for the districts and to receive his estimate and the estimate of the commissioners of the cost of' the construction work contemplated by the districts, and to approve the same. The allegations of the complaints further show that, after approving the plans and specifications and estimates of the cost of the improvements made by the engineer and commissioners of the districts, the county court proceeded to order and adjudge that the county pledge and allot to the districts fifty per cent, of the estimated cost of the improvement, to be paid out of the county funds within a year, and to appoint assessors to assess the benefits. The allegations of the complaints further show that the assessors filed their report of the assessment of benefits and that the court fixed a day for the hearing of any objection by property owners to the assessments. The complaints further alleged that, if the court approved the estimate of benefits, the commissioners would proceed to issue bonds and cause the improvement to be made.
Counsel for the appellees conceded that these districts were established under the Harrelson Law. Such being the case, after the express repeal of § '26 of the Harrelson Law, supra, by § 2 of the Martineau Law, supra, the county court and the commissioners are without authority to proceed under § 26 of the Harrelson Law to make the improvement. Even though the districts be still a corporate entity and be not abolished by the repeal of § 26 of the Harrelson Law, nevertheless they cannot invoke that -section as authority for their procedure to make the improvement, for the' reason that the repeal of that statute blotted it out of existence. The contention that, since the Legislature did not expressly'abolish Districts Nos. 11 and 12, therefore they would have a right to proceed under the law that existed when the district was established, is wholly unsound. These districts cannot proceed to make any improvement not bottomed upon the authority of a statute in existence when the improvement is sought to be made. Therefore all the procedure of the county court looking to the completion of the improvement for which these districts were created under the supposed authority of § 26 of the Harrelson Law, supra,.after that section had been repealed, is absolutely null and void.
Learned counsel for the appellees contend that, notwithstanding the repeal of § 26, supra, the commissioners of the districts still have the right to proceed to issue bonds to make these improvements to the extent of fifty per cent, of the cost of the construction thereof, invoking § 26 as authority for such contention. As we have already stated, this contention is without merit. It is unnecessary for us in this case to go further than to hold that, since the passage of the Martineau Law repealing § 26 of the Harrelson Law, supra, no improvements can be made under the authority of that section. The chancery court therefore should have overruled the demurrers to the appellants’ complaints and granted them the permanent injunction prayed therein. (See note below).
For the error indicated the decrees are reversed, and the causes are remanded with directions to overrule the demurrers and to enter a decree awarding tlie appellants the relief prayed, and for such other and further proceedings as may he necessary according to law and not inconsistent with this opinion.
(Note). What we have stated above has no reference whatever to road improvement districts that are proceeding to make their improvements under the special statutes creating them. These road improvement districts created by special statutes independent of the Mar-tineau Eoad Law and that are not a part of the highway system under that law are expressly recognized and authorized to proceed to make their improvements under Act No. 238 of the Acts of 1927. | [
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Mehaeey, J.
The appellant filed an intervention in a suit pending in the Columbia Chancery Court, but we deem it unnecessary to set out the intervention or any of* the pleadings at length. The only question for the determination of this court is the meaning of the contract with reference to the payment of what was claimed to be appellant’s portion of the $60,000 mentioned in the lease and assignments. And this involves the construction of that paragraph of the contract which reads as follows:
<£Now therefore, in consideration of $1 paid to it by M. G. Haskell, the receipt of which is hereby acknowledged, and the obligations entered into by the said M. G. Haskell, under the terms of a written agreement dated April 17, 1922, made and entered into by and between said M. G. Haskell and said Columbia Oil & Gas Company, which agreement is made a part hereof, in which the said M. G. Haskell obligated himself, in consideration of the turning over to him of the property of the said Columbia Oil & Gas Company, to begin, on or before June 1, 1922, actual drilling operations for an oil and gas well upon any part of the above described acreage he may select, and to continue said drilling with due diligence, and further drill two additional test wells on said property, and to carry out the contracts expressed in the original leases; and, further, to pay the Columbia Oil & Gas Company the sum of $60,000 out of one-third of the first oil accruing to said Haskell from said lease; and, further, to pay said oil and gas company an overriding 1/24 royalty on all oil and gas produced from said acreage, which is to be paid in the customary manner; and other good and sufficient considerations as expressed in said agreement. ’ ’
Haskell, in his assignment to the Wichita Petroleum Company, inserted in said assignment that the petroleum company, for itself, its successors and assigns, agrees to assume said obligation equally with said M. G. Haskell, and the acceptance of this assignment shall constitute an agreement upon its part of so assuming said obligation with the said M. G. Haskell, one-half of said amount to be paid out of the oil accruing to the said Wichita Petroleum Company and the remainder out of the oil accruing to the said M. G. Haskell.
Haeh assignee assumed the obligations of tlie original lessee to the extent of its proportion, and the amount involved in this suit is $11,250. The disagreement is as to the meaning of the following clause:
“For the payment of $22,500 out of one-third of the oil produced therefrom, and the said Wichita Petroleum Company, for itself, its successors and assigns, agrees to assume said obligation equally with the said M. G. Haskell.” Then it is provided that one-half of said amount be paid out of the oil accruing to the said Wichita Petroleum Company and the remainder out of the oil accruing to the said M. G. Haskell.
And, as stated by appellant in its brief, this leaves the court with but one question to determine, and that involves only the construction of the language under which.the O. L. D. Operating Company assumed the payment of the oil obligation of $11,250. And it is agreed that the obligation of the O. L. D. Operating Company is the same obligation assumed by the Wichita Petroleum Company when it purchased a one-half interest in certain of the leases from M. G. Haskell. And it all depends upon the meaning of the clause in the lease to Haskell when he agreed to pay $60,000 out of one-third of the first oil produced from the property. If that means that the lessee was to pay $60,000, whether the oil produced equaled that amount or not, the appellant would owe the $11,250. If, however, it means that the payment is to be made only out'of oil produced, the appellant does not oAve it, because it is conceded the oil was not produced out of which it could be paid.
As stated by the Court of Appeals in a recent case:
“These quotations seem to be clear and unambiguous to the effect that the only obligation of appellee, as the deferred portion of the purchase price, was to pay from oil produced and sold from the leases. Appellants contend that the contract which resulted in the assignment was such that, if the court should determine the assignment to mean payment only from oil produced and sold, the assignment should be reformed to agree therewith! There is no such allegation or showing of mutual mistake or fraud as to authorize such reformation.” * * * The court, continuing, said: “It seems to us that, to take the contract alone or the memorandum alone, or, as should he done, both together, it is clear that the intention of the parties was that the consideration should consist, first, of a cash payment of $71,000; second, of a further sum of $177,500 to be paid from, and only from, the proceeds of oil produced on and sold from the leaseholds by appellant.” Allen v. Phillips Petroleum Co., 13 Fed. Rep. (2d Series) 584.
The lease in the above case is very similar to the one involved here, and we think the contract here is clear and unambiguous, and that it means that the lessee is to pay only out of the oil produced from leaseholds. The lessee was to drill the wells and pay the amount specified out of one-third of the first oil accruing to said Haskell from said leases. And in assuming these obligations by the subsequent lessees they, nf course, assumed no greater obligation than the original lessee. And the obligation, we think, was to pay out of the first oil produced, and, if no oil was produced, there would be no obligation to pay.
The lessee was to drill the- wells, and he would thereby determine whether there was any oil or gas on the lands. If there was no oil or gas found, there would be no obligation to pay anything. .
The Court of Appeals has s¡aid in another case:' “There the debt was definite. There the debt is contingent. No obligation to pay comes into being unless a fund arises from the sale of the gas productions.’? Watchorn v. Roxana, Petroleum Co., 5 Fed. Rep. (2d Series) 636.
In another recent case the Court of Appeals said: “The payment of the additional $12,500 is confined to the first oil produced and saved from the lease tract. No absolute obligation to pay is created. Such an obligation could have been made explicit, if so intended.” Smith v. La. Oil Refining Corporation, 12 Fed. Rep. (2d Series) 378.
The appellee argues that the word “assume.” in the deed, “in assuming the obligations” means to pay. We do not agree with the appellee in this contention. We think, as used here, it means to pay out of the first oil produced, and .that this is the obligation he assumes, and does not assume any absolute obligation to pay. We have not overlooked the cases cited by appellee that, when one purchases property and assumes an indebtedness against the property, he thereby makes himself personally liable for the debt. But this is because there is a debt existing, an absolute obligation, and, when he assumes that, he agrees to pay. But in the present case he assumes the obligation of Haskell, which was to pay out of one-third of the oil produced.
In the case of May v. Ewan, 169 Ark. 512, 275 S. W. 754 the contract provided: “The parties of the second part agree to pay an annual rental for the said clear lands, 40 lbs. of lint cotton per acre; said lint cotton to he picked, ginned, haled and delivered to the said party of the first part by the said parties of the second part at the railroad station at Postelle, Arkansas, and to be from the first picking of cotton from said lands'; same to be delivered as soon as same is picked, ginned and baled.”
The court said in this case: ‘ ‘ That the appellant insisted that, inasmuch as the contract provided that the rent should be paid from the first picking of cotton from said lands, s'ame to be delivered as soon as same is picked, ginned and baled, they cannot be held liable for any cotton not grown.”
And the court further said: “It is true the contract referred to cotton grown on the land, and it is also true that enough cotton was not grown to pay rent. But we think it was clearly contemplated by the parties that enough cotton would be grown to pay the rent, for the contract' provides that the rent should be paid from the first picking of cotton. The contract contained no condition that the rent should be payable provided enough cotton was grown to do so, and we think; the fair interpretation of the contract is that 40 lbs. of lint cotton should be paid for each acre of land, and was to be paid from the first cotton picked, but was to he payable in any event.” May v. Ewan, 169 Ark. 512, 275 S. W. 754.
In the above case there was the absolute promise to pay as annual rental 40 lbs. of lint cotton per acre. The contract then provided that it should be picked, ginned and baled, etc., and should be paid from the first picking. There was evidently no doubt in the minds of the parties that cotton would be raised. It is wholly unlike the production of gas. When one drills a well for gas or oil, every one knows that he may or may not get oil, and the contract here expressly provided for the payment out of the first oil produced. There the contract provides tfor the payment 'of 40 lbs. of lint cotton, and we think there is a clear distinction between this case and the case of May v. Ewan.
It would serve no useful purpose to cite additional authorities or discuss the case further. We have reached the conclusion that there was no obligation to pay unless oil was produced, and the case is therefore reversed, and remanded with directions to dismiss the claim for the $11,250, and for such further proceedings as necessary with reference to the claim of appellant against appellees. | [
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Kirby, J.,
(after stating the facts). The-note sued on was made and payable in the State of Idaho, where all the transactions relative thereto occurred, and must be considered a contract governed by the laws of that State. Contracts or notes of like kind, given purely for accommodation of the payee and without consideration, are not enforceable by the payee or his assignee after maturity, under the laws of that State. Payette Nat. Bank v. Ingard, 34 Ida. 295, 200 Pac. 344; First Nat. Bank of Idaho v. Reins, 42 Ida. 720, 248 Pac. 90. See also First Nat. Bank v. Freeman, 83 W. Va. 477, 98 S. E. 558; Chicago Title & Trust Co. v. Brady, 165 Mo. 197, 65 S. W. 303; Farmers’ Rank of Westboro v. Harris, Mo. App. 250 S. W. 947; Grisim v. Live Stock State Bank, 167 Minn. 93, 208 N. W. 350.
The renewal notes were shown to have been executed in accordance with the express original agreement, as understood by. the parties at the time, and cannot therefore be regarded as a waiver of the defense of failure of consideration, as would otherwise usually be the case. Stewart v. Simon, 111 Ark. 358, 163 S. W. 1135, Ann. Cas. 1916A, 825; Haglin v. Friedmm, 118 Ark. 465, 177 S. W. 429.
The testimony is sufficient, in the opinion of the majority, to support the judgment, which is accordingly affirmed. | [
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Kibby, J.
Appellee brought this suit in replevin to recover certain personal property, mules and teams, under a mortgage, in which he was trustee, the mortgagors having defaulted in the payment of the notes secured thereby.
It was alleged: “That on the 11th day of March, 3924, the said defendants were indebted to Earl Morgan in the sum of $5,000, as evidenced by ten promissory notes of that date, each in the sum of $500 and bearing interest at the rate of ten per cent, per annum from date until paid, the three last of which were dud as follows: One due the 10th of January, 19'25; one due the 10th of February, 1925, and one due the 10th of March, 1925, all of said notes having been purchased by the People’s Bank of Stephens, Arkansas, for value before maturity, on the 3d day of. April, 1924, and of that date assigned to it by said Earl Morgan,” and that, to secure the payment of all ten of the notes, the .defendants executed to J. B. Morgan, trustee, a deed of- trust conveying certain personal property, describing it, the same as that sued for, and, under the terms of the deed of trust, plaintiff was authorized, default in the payment of one of the notes having been made, to take possession of the property and sell same for the payment of the remainder of the notes; that all the notes except the three last coming due have been paid, and that, same being due and unpaid, plaintiff was entitled to the possession of the mortgaged property and to sell same for payment of the debt.
The defendants answered, alleging that they had purchased the property described in the complaint from the People’s Bank of Stephens, Arkansas, together with the timber on certain lands near the sawmill in-Columbia County, which they also bought at the time of the execution of the deed of trust, paying to the People’s Bank $5,000 in cash and executing the notes and deed of trust to Earl Morgan, trustee, to secure the balance of the purchase money, that the bank represented to them that Morgan wás largely indebted to it, and his indebtedness was secured by a mortgage, under the terms of which he had turned over all of this property to the People’s Bank to satisfy his indebtedness, but, not having deeded the property to the bank, to save trouble and expense, the bank had Earl Morgan to deed the property directly to them and the defendants to execute the deed of trust and notes referred to in the complaint direct to Earl Morgan, which notes and deed of trust were immediately transferred to the People’s Bank, and that the defendants did not negotiate with any one in the purchase of the property, other than the People’s Bank, did not know that the title to the property had not been conveyed to it until the papers were to be executed, which were executed for the reasons above stated. It was further alleged that, during the negotiations with the People’s Bank for the purchase of the mill, timber and outfit, the bank had Earl Morgan to carry them out there and show them the property, and that lie stowed and represented to the defendants that the People’s Bank was the owner of the timber on a certain 60 acres of land, describing it, which was to be conveyed to them in the transaction, and which was not conveyed to the defendants, who did not know the description of the land upon which the timber was standing, bnt, after they purchased the property from the People’s Bank, it developed that the bank did not convey to the defendants the timber on the 60 acres of land shown them, bnt that it was owned by another lumber company, which cut and removed the same, and “that defendants relied upon the representations of Earl Morgan, who was acting for the People’s Bank in selling this property to the defendants, that the People’s Bank was the owner of the timber standing upon this land and that defendants were getting a deed for same, and, bnt for such representations, would not have purchased the property and paid to 'the People’s Bank the price therefor; that the timber so shown to the defendants and represented as being sold and conveyed to them was of the reasonable cash market value at that time of $1,500, and that the defendants, by reason of said misrepresentations by the People’s Bank, have sustained damages in the sum of $1,500. They admit that there are three notes of the full sum of $1,500 that the defendants have not paid and are refusing to pay to the said People’s Bank, but that said notes are fully offset by reason of the defendants’ claim for damages as aforesaid, and that the defendants are not due the People’s Bank of Stephens any sum whatever on said notes.
The plaintiff denied the allegations of the answer and that defendants had been damaged by any misrepresentations made by him, and that he represented to them that either himself or the bank was the owner of the timber on the lands described in the answer, and alleged that no timber had been removed by any one but the defendants, after their purchase from Morgan, and, further, that the People’s Bank was the holder of said notes in due course, purchased for value before maturity and without notice of any defense.
The testimony shows that the bank was carrying Morgan for a large amount, and that he was operating the sawmill unsuccessfully and at a loss, when defendants were in the market for such a mill outfit; that they talked to the cashier of the People’s Bank, which bank had a mortgage on Morgan’s property and was about to foreclose same, and had stopped the operation of the mill; that they talked,with the cashier of the bank, McClerkin, several times before the transaction was completed; that he told them that Morgan would show them the property and the timber that he and the bank owned, and finally the trade was made, defendants depositing $5,000 in the bank, to be paid when the papers were executed, and afterwards it paid $3,500 to the bank, making the check payablé to McClerkin, the cashier, who wrote it, making in all $8,500; that they did not know at that time the bank was not to make conveyances -to them. None of the defendants know the description or location of the lands upon which the timber purchased with the plant’ was situated, none of thém having ever been in the county before. The cashifer told them that Morgan would show them the propérty,"ánd he did show them the 60 acres of land described 'iii the answer, with virgin timber on it, telling them it was included in the purchase. '
The mill was rebuilt by the purchasers on the south end of the timber tracts — it was something like three miles from the timber — with a view to sawing the timber on the 60 acres of land more conveniently, it being but a quarter, of a mile from the mill. They operated the mill for several months, and the question arose about the ownership of the timber on this 60 acres of land described, and they had a survey made, and discovered that this best timber that had been shown them, and represented as being included in the sale and conveyance to them, belonged to another lumber company, as one witness said, “all the timber they cut except a few little bunches, which they bought from others, was old-field stuff. Mor gan had shown them the timber that belonged to Creason-Grayson Lumber Company, and when they found that out was when they stopped paying the notes. Mr. Morgan showed them this timber at the request of Mr. McClerldn, the cashier of the bank. Mr. McClerldn was familiar with every deal that they made in the case. When Mr. Morgan went down there with them at the request of the cashier of the bank, he showed them about 60 acres of timber that- they later found out did not belong to him or the bank. This was the only real good timber in the deal. They would not have made the deal if this 60 acres of good timber had not been included and had not been shown to them as part of the deal. They placed the mill at a disadvantage to the other timber in -order to get closer to this timber with the mill.”
When the other lumber company commenced cutting timber near their -mill, they had the land surveyed, and disavowed that the 60 acres of timber they bought, which hiad been shown to them by Morgan for the bank as included in the trade, did not belong to them. The 60 -acres actually -conveyed was a cotton-patch -with ho timber on it. The testimony -shows that the timber on the 60 acres of land shown the appellants by Morgan and represented to be included in the trade was worth $1,500.
Instruction No. 3 was given over appellant’s objection, and the court’s refusal to give their requested instruction Nos. 1 and 3 as follows is also complained of, instructions:
Instruction No. 3 given:
“You are instructed that, if you believe from a preponderance of the evidence in this case that the People’s Bank of Stephens, for a valid consideration, purchased the notes in question before they became due and at a time when said People’s Bank had no knowledge of any defense the maker of said notes had to same, then you are told that said bank is what is known as an innocent purchaser of said notes, and plaintiff is entitled to recover of and from the makers of said notes the property sued for, or its value, not to exceed the amount due on the notes secured by the deed of trust. ’ ’
Instruction No. 1:
“You are instructed that, if you find from the evidence that the People’s 'Bank of Stephens knew of the terms of the trade between Morgan and Smith & McKinney before it was consummated and contracted with Earl Morgan to the effect that they would take said notes and extend credit on them before they were executed, then said hank could not'he an innocent purchaser of said notes.” ■
Instruction No. 3:
“Although you may not believe that the bank itself sold the property in question to the defendants, still, if you should find that both the hank and the witness, Earl Morgan, were financially interested in the sale of said property, then you are told that the hank could not be an innocent purchaser of the notes in question.”
It is insisted for reversal that the court erred in giving instruction No. 3 over appellants’ objection and in refusing to give their requested instructions Nos. 1 and 3, and the contention must be sustained.
The undisputed testimony shows that the bank had taken .over the mill and property of Morgan, who had been unsuccessfully operating it, and had become so greatly indebted to the bank that it had refused to carry him further; that the negotiations for the sale of the property were between the cashier of the bank and the appellants; that the bank sent Morgan to show the property to the prospective buyers; the terms of sale were agreed upon between the buyers and the cashier of the bank, upon representations made by Morgan, who had been designated by the cashier as agent for the purpose; that the appellants understood that they had made the trade and bought the property from the bank, until the conveyances were made, and it was then discovered that the bank had reconveyed the property to Morgan and had him to make the conveyances to the purchasers and take the notes and mortgages therefor.
The undisputed testimony also shows that all the property purchased by appellants was owned by the bank, except about $830 worth of timber belonging to Morgan. ' The $5,000 payment in cash was made by check to McClerkin, the cashier of the bank, and the other notes were turned over to him by .Morgan, upon completion-of the sale. Under these circumstances the bank could not become a bona fide holder of the notes in due course. It was, in fact, a party to the contract of sale and necessarily chargeable with notice of any defects or defenses to the notes given by appellants for purchase money in concluding the transaction, and this without regard to the fact that, after the terms of the sale had been agreed upon, the bank reconveyed the property to Morgan, who, in turn, conveyed it, as already stated, to the purchasers. The bank occupies no better position, so far as being a bona fide purchaser without notice is concerned, than Morgan, who executed the conveyances of the property to appellants, after it had been reconveyed to him by the bank, for the purpose, taking their notes for the balance of the purchase money and the mortgage securing same, and transferring the notes to the bank. Hogg v. Thurman, 90 Ark. 93, 117 S. W. 1070, 17 Ann. Cas. 383.
The court therefore erred in giving said instruction No. 3, permitting the jury to find that the bank was a bona fide purchaser of the notes. This question should not have been submitted to the jury at all, under the circumstances, as the bank occupied no better position, relative to the defense to the notes arising out of the transaction, than did Morgan, who took the notes and transferred them to the bank under the circumstances stated.
The court also erred in refusing to give appellant’s requested instructions Nos. 1 and 3, and such error was accentuated and the harmful effect of instruction No. 3, erroneously given, increased by the refusal to give the said instructions Nos. 1 and 3.
The undisputed testimony also shows that the market value of the timber on the 60 acres alleged to have been shown to appellants by Morgan, in the making of the sale, as included in it, which was not in -fact owned by either the bank or Morgan, nor conveyed in the transaction, was more than the amounts still due on the notes given for the purchase money; and the only question for the determination of the jury was whether the seller of the property had made such false representations about the ownership and conveyance of the 60 acres of timber as alleged, and could have been submitted as well on instruction No. 2, as asked by appellants, as upon the instruction as amended and given by the court, in which we find no error, however.
For the errors designated the judgment is reversed, and the cause remanded for a new trial. | [
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Smith, J.
On March 26, 1917, T. J. Jackson conveyed to J. T. Eddins and B. B. Campbell the west half of the northeast quarter of section 1, township 2 south, range 3 east, and certain other lands, for a sum paid in cash and the assumption of payment of a deed of trust from Jackson to the Guaranty Loan & Trust Company securing a loan of $1,200. The lands thus conveyed to Eddins and Campbell were later divided, and Campbell took title to the land above described, and agreed, in consideration of this partition, to satisfy the deed of trust thereon. He was unable to do so, but renewed and increased the loan to $2,000 and, on July 21, 1921, executed a deed of trust on the land to secure a note evidencing that indebtedness.
Suit was commenced February 24, 1925, to foreclose this deed of trust, and a decree of foreclosure was rendered, pursuant to which a sale was made by the clerk of the court, who had been appointed commissioner for that purpose. A report of this sale was duly made, and, pending its confirmation, appellant filed an intervention, in which he alleged that he was a necessary party to the foreclosure proceedings, but had not been advised thereof until he saw the commissioner’s notice of sale.
Intervener alleged the following facts: Prior to the execution of the deed of trust from Campbell to the trust company, the instrument here sought to be foreclosed, Campbell had, on November 2, 1917, entered into a contract with one Spencer Wilson for- the sale of this land, by the terms of which it was agreed that, for a consideration of $3,100 to be paid Campbell, a deed would be executed by Campbell to Wilson. The $3,100 purchase money was evidenced by notes for $500, $600 and $2,000, due, respectively, December 1, 1919, 1920 and 1924, but the contract provided that, until the first and second notes had been fully paid, any and all payments made should be treated as payments of rent, and these notes were delivered to intervener as collateral to a loan made to Campbell by him. On October 1, 1921, Campbell conveyed the land to F. L. Mallory, who, on June 30, 1922, conveyed to intervener.
It was alleged in the intervention that the trust company had taken its deed of trust with notice, both actual and constructive, of the contract of sale between Campbell and Wilson, and it was prayed that the indebtedness there secured be adjudged to constitute a lien prior and superior to that of the. deed of trust from Campbell to the trust company. There was a prayer in the alternative that, if this was not done, the commissioner’s sale be not approved and the intervener he allowed to redeem from the decree of foreclosure by paying the indebtedness there declared to be due’ the trust company.
Upon the filing of the intervention time was given to take, testimony, and testimony was taken, and the clerk.has certified, in the transcript filed in this case, that he has shown all the proceedings had in this behalf. It does not appear that the court made any affirmative robing upon the intervention and the testimony, taken in support thereof, but it does appear that the court approved and confirmed the report of sale and approved the deed of the commissioner to the trust company, it having been the purchaser at the sale.
Upon this state of the record, appellee insists that there is no final decree, except the decree of foreclosure, and an appeal was not perfected within six months of its rendition, and, inasmuch as it does not appear that the court has adjudged the rights of the intervener, it must be conclusively presumed that the intervention was not disposed of and that there was no decree from which he could appeal.
We do not agree with learned counsel in this contention. It was prayed by the intervener that his intervention be treated as an objection to the confirmation of the report of sale and that he be granted the alternative right of redeeming from the commissioner’s sale, and, as the sale -was confirmed contrary to the prayer of the intervention, it must be conclusively presumed that the court overruled the prayer of the intervener, although no express recital of that fact appears in the record. Such, however, is the necessary effect of the court’s action, and we hold therefore that the present appeal was properly taken.
We think intervener, hereinafter referred to. as appellant, had the right to intervene, for, through the conveyance above-mentioned, he acquired CampbelPs right to redeem from the deed of trust from Campbell to the trust company.
It was developed, in tlie testimony taken on the intervention, that the contract of sale between Campbell and Wilson was not acknowledged or recorded. It is insisted, however, that the trust company took its deed of trust subject thereto, for the reason that an abstract of the title had been submitted, which showed that‘Wilson had himself executed a deed of trust to secure a loan to one party and had given tan oil lease to another, thus making it appear that Wilson claimed an interest in the land. The officer of the trust company who examined the abstract admitted that the abstract showed this last-mentioned deed of trust and the oil lease, and that, upon investigation, Campbell told him he had contracted to sell the land to Wilson, but Wilson had abandoned the contract and had removed from the land at the time the trust company’s deed of trust was taken. The undisputed testimony shows that, pursuant to the contract of sale, Wilson moved on the land and made certain improvements thereon, but he left the land in March or April, 1921, and has not at any time asserted any right under his contract of purchase, and 'his present residence appears to be unknown. The land was unoccupied after Wilson abandoned it until about Christmas, 1921, when Campbell put another tenant on it. It thus appears that, while appellant acquired the notes given by Wilson to Campbell as collateral to a loan made by him to Campbell, he acquired no lien on the land superior to that of the deed of trust from Campbell to the trust company. The trust company had the right to assume, inasmuch as Wilson had abandonéd the land, that Wilson had acquiesced in assuming the relation of a mere tenant in possession having an option to purchase, as the contract provided he should be regarded until he made his first and second payments, neither of which were made. Under the contract Wilson would not have become a purchaser in possession until he made the first two payments. Wilson did not make these payments, and, when he defaulted and abandoned the land and refused to pay, he lost his right to purchase, and any payments he may have made were mere payments of rent. The validity of contracts having this effect has been frequently upheld. Nelson v. Forbes, 164 Ark. 460, 261 S. W. 910; Thompson v. Johnston, 78 Ark. 574, 95 S. W. 468; Murphy v. Myar, 95 Ark. 32, 128 S. W. 359, Ann. Cas. 1912A, 573.
The court no doubt found, although that finding is not reflected in the record, that the trust company was an innocent purchaser in taking its deed of trust from Campbell, and that the lien thereof was superior to any rights acquired by appellant in taking title to the notes by an equitable assignment of them from Wilson to Campbell. These notes were delivered to appellant by Campbell without being indorsed by Campbell, but, as appellant had acquired Campbell’s title, he thereby acquired the right to redeem, and this right should have been accorded him. The deeds under which this -right was acquired were of- record when the original suit was filed.
In the case of Dickinson v. Duckworth, 74 Ark. 138, 85 S. W. 82, 4 Ann. Cas. 846, it was said:
“It must be conceded that appellants were necessary parties to the foreclosure suit under which appel-lee Duckworth obtained title, and their rights in the property were not cut off by the sale. Having been omitted from the foreclosure proceedings, what remedy therefore remained to them in the assertion of their rights'? A right merely to redeem from the lien which had been foreclosed, upon the payment of the debt, or the right to require a foreclosure order and a sale thereunder? While there is some conflict in the authorities, we think that, by the decided weight of authority, it is settled that a subsequent lienor, or holder of the equity of redemption, after foreclosure against the original mort-gag’or, can only claim the right to redeem where he has been omitted from the foreclosure suit. (Citing authorities). This rule was adopted by this court in the case of Allen v. Swope, 64 Ark. 576, 44 S. W. 78. ”
Appellant was the owner of the equity of redemption, and, as such, should have been accorded the right' of redemption, and the court erred in confirming tire sale, thereby denying appellant this right.
The decree of the' court below will therefore be reversed, and the cause will be remanded with directions to vacate the order confirming the sale, and appellant will be given a reasonable time within which to redeem from the decree of foreclosure, failing which the court will again confirm the sale. | [
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MoHaNey, J.
This appeal is prosecuted to reverse a judgment of the Phillips Circuit Court in appellee’s favor for $1,999.06 for the alleged breach of a contract of employment by appellant of appellee as manager of its plantations at Lambrook, Phillips County, from March 1, 1925, to February 28, 1926, at a salary of $350 per month. Whether the contract was for the term of one year or from month to- month was a disputed question of fact, which was submitted to the jury on instructions that are not questioned. Appellant was discharged August 15, 1925, and his testimony tended to prove that he was unable to get other employment until January 12,1926, and then at a reduced salary of $200 per month.
Two questions are raised regarding the admissibility of testimony, one being a letter written by Gerard B. Lambert, president of appellant company, as follows:
“St. Louis, Mo., Feb. 10, 1925.
“Mr. A. G. Newton,
Elaine, Arkansas.
“Dear sir: I am very happy to be able to write you this letter and at last to know something definite about my plans for the coming year. I have now arranged my finances so that we can go ahead on the 1925 crop in a normal way. The only requirement is that I must get the greatest possible efficiency out of the operations, and must put out the least amount of money that I can to get a reasonable return.
“As I find my affairs demand an increasing amount of my time, and so that you may have an opportunity to discuss policies, without awaiting for a trip from me, I have arranged for Mr. Day to represent me and to go down to see you about once a month so tliat you may talk things over. He will have complete authority, and I know will be of material assistance. I have found Mr. Day’s .judgment very sound on all matters relating to that country, and his one object will be to work with you to get the best results out of the place. By this method all matters which are undetermined will not have to go long before being decided upon.
“I have never started the season feeling as well about the place as this year, as I know I can surely have funds to go through the year, and I feel an increasing confidence in your ability to operate things on an efficient basis. I understand that you have things in wonderful shape and that you have plenty of seed for the crop. Last year I made a serious mistake in urging you to plant ‘Salsbury’ seed, and I imagine, of course, that what you have saved is ‘Express.’
“I can not come down on this trip, but T am hoping I will be there in less than a month, and we can all have a nice general conversation on our plans for the season.
“In starting off this new year, because, as yon know, on our books our year runs from March 1 to March 1,1 have only one Suggestion to make to guide you in the work, because in general your management has been very satisfactory. This suggestion is that you train yourself to give your greatest attention to those things which really count in the final bringing in of the crop, which is, after all, our source of revenue, and that you do not permit yourself to become distressed, annoyed or diverted by things which are really unimportant as related to that crop. I say this to you in a friendly effort to help what I think is your only weakness, and because, in the last five years, the development of that point of view has been the best thing I have been able to achieve for myself. When details come up for your consideration throughout the day, try to weigh their importance, and put your attention on the ones that will really count, even if some of the small ones are neglected. Do not let your personal feeling force you to give attention to unimportant things, and do not let what other people may say affect your judgment on the main.object, which is, after' all, getting out a profitable crop. As you grow older, yon will discover1 that the successful men in business have developed this quality, and that, while the small men 'seem annoyed that the successful executive will not give the attention he wishes to details, somehow the bigger man gets results and succeeds. In other words, be as calm as possible about your work, and sit down occasionally and think over the day, and decide whether or not you have placed your time on the important things.
“This suggestion is sent in a- spirit of friendly helpfulness and of a result of things I have learned myself, and both Mr. Day and I feel that we are all set and ready to go for a fine year, and we will give you support in every possible way.
“Until I see yon, just plug along, getting your things ready as well as possible for the coming crop.
“Yours truly, Gerard B. Lambert.”
Appellant made a general objection to its introduction, and it is now urged as reversible error on the ground that it bad no bearing on tTie case. We think the letter was proper and competent evidence and tended to prove that appellee was employed for the year, the vital issue in the case. Again, it is urged that certain parts of the letter are incompetent and irrelevant, and that, upon general objection, appellee should' have been permitted to' read only the competent parts. Counsel did not point out to the trial court the irrelevant parts, nor have they done so here. Moreover, the rule is to the contrary, and is correctly stated in the recent case of Eureka Oil Co. v. Mooney, 173 Ark. 335, 292 S. W. 681, where the court said that, “ since the whole of the witness’ statement was objected to, and part of it was competent, and no special objection was made to that part of same being incompetent as hearsay, the court committed no error in overruling the general objection to the entire statement.” Citing St. L. I. M. & S. R. Co. v. Stroud, 67 Ark. 112, 56 S. W. 870; Redmond v. Hudson, 124 Ark. 26, 186 S. W. 312. There was no error in admitting the letter.
During the cross-examination of appellee he was being questioned regarding a certain letter written by him to Mr. Lambert, dated August 15, the day he was discharged, and counsel for appellee asked that the letter as a whole be read to the jury, and the court required this to be done.' He had not been asked about this letter on his direct examination, and if he was to be cross-examined about it he was likewise entitled to have the letter read. However, we can see no possible prejudice to appellant, as it appears to be more favorable to appellant than to appellee. It was in the discretion of the court to require the letter read after it had been brought in on cross-examination, and no abuse of such discretion is shown.
It is next urged that the court erred in stating orally to the jury what the suit was about, as set out in the complaint. Appellant calls it an instruction, but it is not an instruction in tlie real meaning of that term. It merely stated the contentions of the appellee as stated in his complaint. It would have been entirely-proper for the court to have followed such statement with the contentions of appellant as set out in the answer, and no doubt the court would have done this if so requested by counsel, but this was not done. We do not deem it neces-' sary to set this statement out. It was not an instruction either upon the law or the facts. It contained no directions to the jury, and we do not think it was in violation of art. 7, § 23, of the Constitution, which provides:
“Judges shall not charge juries with regard to matters of fact, but shall declare the law, and in jury trials shall reduce their charge or instructions to writing on the request of either party.”
But there was no request by counsel that this so-called instruction be reduced to writing. The objection was general, and is insufficient to amount to a demand. The demand must be made. Nat. Lbr. Co. v. Snell, 47 Ark. 407, 1 S. W. 708; Mazzia v. State, 51 Ark. 177, 10 S. W. 257; Excelsior Mfg. Co. v. Owens, 58 Ark. 556, 25 S. W. 868.;
Lastly, it is said that the verdict is contrary to the law and the evidence, in that it cannot be determined how the jury arrived at the sum of $1,999.06. This contention is not sound, as we think the jury allowed 'the plaintiff five months’ salary from August 15 to January 15 at $350, one and one-half months at $150 from January 15 to February 28 (being the loss per month for this time), or a total of $1,975, to which it added $24.06, the amount appellant offered to confess judgment for on other indebtedness, making $1,999.0.6.
We find-no error, and the judgment is affirmed. | [
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McFaddin, J.
The question argued by the parties is whether the complaint and amendments state a cause of action; but we do not reach that question because we hold that there was no final order in the circuit court from which an appeal would lie to this court.
Appellees filed action in the circuit court praying damages .for $1,300 for defendants (appellants’) failure to complete a real estate transaction. There were three amendments to the complaint and also a response to a motion to make more definite and certain: all of which, with the original complaint, made five pleadings seeking to state a cause of action. The defendants filed a demurrer to the complaint and all amendments; and the following appears as the order of the court:
“The demurrer of the defendants filed herein was by the court overruled. To which ruling of the court the defendants at the time objected and excepted and asked that its exceptions be noted of record, which is accordingly done.
“And thereafter, the defendants refused to plead further, desiring to stand on their demurrer, and plaintiff did not desire to plead further.
“And thereupon defendants prayed the court to grant to it an appeal to the Supreme Court of the State of Arkansas, which was by the court allowed; and defendants were given 90 days from February 21, 1944, within which to prepare and file its bill of exceptions.”'
The above is the only entry in the transcript that purports or attempts to be a final order; and we hold that the said entry — as copied above — was not a final or appealable order. The complaint was for unliquidated damages, and we cannot tell from the above order how much, if anything, the plaintiffs were to recover.
In Stewart v. Mt. Olive Stave Company, 280 S. W. 357 (noted but not reported in 170 Ark. 1194), the order was: “On this day comes the defendant, by F. E. Brown, its attorney, and files a demurrer to the amended complaint, which is presented to the court, and, after hearing the argument of counsel, the court, being well and sufficiently advised in the premises, sustains said demurrer, and the plaintiff duly excepts to the order and ruling of the court and declines to plead further, prays an appeal to the Supreme Court, which is granted, and is allowed four months in which to prepare and file his bill of exceptions. ’ ’
And of that order Mr. Justice Humphreys, speaking for this court said: “Hnder the consistent ruling of this court the order in question was not a final or appealable order. It was only an interlocutory order; hence the appeal was premature.”
In the case of Fairview Coal Company v. Arkansas Central Ry. Co., 153 Ark. 295, 239 S. W. 1058, the order was: “ 'Demurrer is by the court sustained; plaintiff at the time excepts and declines to plead further, and prays an appeal to the Supreme Court, which is granted, and 90 days given to file bill of exceptions herein’.”
Mr. Justice Humphreys, again speaking for this court and after citing earlier cases, said of this order: “In the instant case it will appear by reference to the order that no final judgment was rendered dismissing the complaint; also that no judgment for costs was rendered against appellant. It was clearly an interlocutory order, unless the use of the language to the effect that appellant refused to plead further amounted to a final disposition of the case. We think this language a mere recital of the attitude of appellant, and in no sense an act or order of the court. . . . As no judgment was in words rendered disposing of the cause of action, or language used in the order importing that it was a final disposition of the case, the appeal was premature. The appeal is therefore dismissed without prejudice.”
There are many other cases all to the same effect and collected in West’s Arkansas Digest, “Appeal and Error,” § 78 (3); but the two cases above cited are ruling.
It, therefore, follows that there has been no final disposition of the present case in the circuit court and the attempted appeal is premature; and' the appeal is, therefore, dismissed without prejudice. | [
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McHaney, J.
On January 12, 1938, appellant issued its policy of fire and tornado insurance to appellee, effective from noon January 18, 1938, to noon January 18, 1943, in the total sum of $4,250, for a total premium of $449.95, of which $89.99 was paid in cash and for the remainder appellee executed his installment note. The first installment of $89.99 was due and payable on February 1, 1939, and a like amount on February 1, 1940, 1941, and 1942. Said note provided:
“And it is expressly agreed that in case any one of the installments herein named shall not be paid at maturity . . -. this company shall not be liable for loss during such default, and the policy shall lapse until payment is made to the company at the Farm Department at Chicago. ’ ’
Said policy also provided:
“It is expressly agreed that this company shall not be liable for any loss or damage that may occur to any of the property herein mentioned while any promissory note, or obligation, or part thereof, given for the premium, remains past due and unpaid, which suspension of liability will not be waived by failure of the insured to receive notice from the company of the approaching due date of the note, or any part thereof, nor by any demand for the payment or collection thereof, in whole or in part, of any snch premium note or installment thereof, nor by any effort or action by the company to collect, in whole or in part, any such premium note or installment thereof. ’ ’
‘‘The installment on said note due February 1, 1939, was paid by check dated February 13, 1939, and received and accepted by the company on February 15, 1939; installment due February 1, 1940, was paid by check dated February 9, 1940, and received and accepted by the company on Febriftary 12,1940; the installment due February 1, 1941, was paid by check dated February 12, 1941, and received and accepted by the company on February 14, 1941; and the installment due February 1, 1942, was not paid.
“On February 5, 1942, the property described in said policy was damaged 'by tornado in the sum of $2,978.”
On February 7, 1942, appellee mailed his check to appellant for $89.99 to cover the installment which, became due February 1; which payment was refused by appellant and it later denied liability for the tornado loss and this action followed, which resulted in a judgment against appellant for the amount sued for with attorneys’ fees. This appeal followed. The above facts were stipulated. .
We think this case is ruled adversely to appellee by American Insurance Co. v. Austin, 178 Ark. 566, 11 S. W. 2d 475, where we very carefully considered an almost exactly similar situation and held the provisions in the note and the policy, such as are copied above, valid and enforceable, and that “failure to pay a premium note, or a note given for a part of the premium, when it is due, constitutes a complete defense to an action upon a policy to recover for a loss occurring while such premium note is overdue and unpaid.” We also said: “The undertaking of appellant in this case was not to insure appellee’s property from year to year, but for a period of five years, on the condition that he pay one-fifth of the premium for five years in cash, and the balance at stated intervals mentioned in the note.” We think this disposes of appellee ’s argument that on the payment and acceptance of an installment of a premium note, the policy is reinstated and is effective for one year from the date of the payment of such installment. “In other words,” says he, “appellee paid the 1939 installment on February 13, 1939. His property was insured for a full year from that date. The same is true of the payment in 1940 on February 9, and the payment in 1941-on February 12.” This contention cannot be sound and it is directly contradictory to the express language of the policy which provides, in this connection, “. . . such revival of liability to begin from the time of receipt of acknowledgment of said payment only and in no event to extend this policy beyond the original date of expiration.” The expiration date of this policy is noon January 18, 1943, and if appellee’s contention is correct it would extend this date to at least February 7, 1943, as February 7, 1942, is the date he tendered his check in payment of his installment due on February 1. At another place in his brief appellee adds the days he was delinquent in his previous payments, finds them to be 32 and says, if appellant’s contention is true, he had no insurance for those days, and this is true. During the days he was delinquent on his installments, his policy by clear and- express language, was suspended. It is a penalty appellee paid for breach of his agreement to pay on a certain day. See our quotation in the Austin case from Blackerby v. Continental Ins. Co., 83 Ky. 574, 12 Ann. Cas. 626, note. See, also, McCullough v. Home Ins. Co., 118 Tenn. 263, 100 S. W. 104, 12 Ann. Cas. 626, from which we quoted with approval in American Ins. Co. v. Austin, supra, where this same appellant was held not liable under exactly similar facts and circumstances.
The trial court erred in not directing a verdict for appellant at its request and the judgment is reversed and the cause dismissed, | [
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Knox, J.
Begun by appellee as an action at law in ejectment to establish his title to the N% of NE14, and N% of SW14 of NE%, all in section 8, township 1 north, range 10 west, Pulaski county, Arkansas, this cause, during the progress thereof, became converted to a suit in equity, the purpose of which was to cancel a certain decree previously rendered foreclosing the lien for betterments held by Faulkner Lake Drainage District covering the one hundred acres above described.
Appellants are th.e heirs of Edward Wood, who at the time of his death, some forty years ago, was the owner of the land above described. But for the claim of appellee, appellants would now be the owners in fee simple as tenants in common of such land.
Many statements hereinafter contained purporting to represent facts disclosed by the former case frequently have been obtained from statements contained in copies of documents set out as exhibits to pleadings and other matters contained in the former case.
Appellee acquired his claim of title by purchase from Faulkner Lake Drainage District, which became purchaser at foreclosure sale instituted and conducted by it for enforcement of assessments of benefits, which cause was concluded many years ago.
The Faulkner Lake Drainage District was created under Act No. 279 of the Acts of the General Assembly of 1909, and acts amendatory thereof (Pope’s Digest, §§ 4455, et seq.).
■Complaint was filed in the Pulaski chancery court by the Board of Commissioners of the Faulkner Lake Drainage District, to foreclose as to lands herein involved for the nonpayment of taxes due on the first Monday in January, 1932. Decree was rendered on the 27th day of July, 1936, in which it was found that there were due and unpaid certain* assessments, and it was decreed that the lands be sold in satisfaction of said judgment, it being recited in the decree that notice of the pendency of the suit had been given for the time and in the manner prescribed by law.
Notice of the sale was given by publication in the Arkansas Gazette. At the sale of said property the District became the purchaser, and many years later assigned its certificate of purchase to appellee, Sam Gordon, and upon the expiration of the period for redemption, Sam Gordon petitioned the court for an order authorizing the Commissioner in Chancery to make a deed to Sam Gordon. The chancery court made the order directing the commissioner to execute a deed covering the north half (N%) of the northeast quarter (NE%), section 8, township 1 north, range 10 west, Pulaski county, Arkansas, on April 27,1943, and a similar order was made covering the remaining lands on May 6, 1943.
Thereafter, on July 15, 1943, Sam Gordon, appellee, filed a suit in ejectment in the Pulaski circuit court against appellants, asking for possession of said property. On October 5, 1943, appellants filed their answer and cross-complaint and motion to transfer to equity, which motion to transfer to equity was granted and the cause-, was duly transferred to the Pulaski chancery court by order of the circuit court entered on the 15th day of October, 1943. Formal answer to the cross-complaint was filed, denying all of the material allegations thereof. After the transfer of said cause to the Pulaski chancery court, appellants, on October 13, 1943, filed amendment to answer, and on March 9, 1944,. a second amendment to answer was filed. In the answer and respective amendments thereto, it is admitted that the lands were situated within the boundaries of the Faulkner Lake Drainage District and that, on the 27th day of July, 1936, a decree was rendered by the Pulaski chancery court condemning said lands to he sold for the nonpayment of taxes levied upon benefit assessments in said district, and that the said lands were'sold pursuant to said decree to said district, and that, on the 20-th day of April, 1943, the Board of Commissioners of said district assigned the certificate of purchase to appellee, and that appellee obtained a deed from the commissioner in chancery for said lands. It was alleged, however, that the proceedings for the sale of said lands for delinquent assessments were void, for the reasons that, first, the assessed benefits against said-lands were in excess of the assessed valuation.for general taxes; second, the suit by said drainage district was filed on the 27th day of December, 1933, but was dropped, or should have been dropped, from the docket and was reinstated after more than two and one-half years, without notice to appellants; third, the notice of sale was published for three times in a daily newspaper in Little Rock, when the law required the publication for only two times, and that the cost of the extra and unnecessary publication was charged pro rata against the lands involved; and, fourth, the Board of Commissioners of the Faulkner Lake Drainage District assigned its certificate of purchase to Sam Gordon without notice to appellants, notwithstanding appellants had paid the assessments for 1940, 1941 and 1942.
By amendment to the answer, it was alleged that appellants were in possession of the land and that appellants and their predecessor had been in possession of the property for a period of more than forty years. It was alleged that suit had been filed for delinquent taxes in Faulkner Lake Drainage District and that notice of the suit had been published for four weeks in succession'. It was alleged, ’ however, that the judgment foreclosing the lien for benefit assessments was void, for the reasons, viz., first, there had been no personal service of summons on appellants; second, that there was no showing on the part of the appellee that he was in possession of the lands or that he had paid taxes thereon for at least three years after the expiration of the right of redemption and immediately prior to the application to confirm as provided by § 10979 of Pope’s Digest; and, third, that appellee had not filed his affidavit or the affidavit of some person familiar with the lands, showing that there was no person in actual possession of the lands claiming title adverse to the appellee, and that he had not filed copies of the tax receipts showing payment of the taxes for three years next preceding the publication of the notice to confirm, as provided in § 10981 of Pope’s Digest. A second amendment to the answer was filed, but it appears to be a repetition of the first amendment, in that it alleges that appellee cannot prevail because there was not filed with the complaint his affidavit, or the affidavit of someone acquainted with the lands, showing that there was no one in actual possession of the lands claiming adverse to appellee, and copies of tax receipts showing payment of the taxes for three years next preceding the application to confirm, and that the foreclosure of the lands for delinquent assessments in Faulkner Lake Drainage District was void for the reason that notice of the sale had been published three times and the cost of the one unnecessary publication was included in the amount for which the lands were sold.
The case was submitted to the court upon the pleadings and exhibits thereto, stipulation of the parties, and exhibits which were introduced by agreement of the par-# ties. Appellants abstracted few of these exhibits.
The defense set forth by appellants will appear in more detail in the discussion of their argument made in this court.
Appellants contend here that the original decree is fatally defective because: (1) Appellants, and none of them, were personally served with process; (2) the land was sold for an excessive amount of taxes, penalty and costs; (3) the notice of sale was published one more time than required by statute and the cost of this extra publication added into total cost of sale; (4) an adverse claim of title existed to that of appellee which prevented confirmation at time of original suit, under the provisions of § 10979 of Pope’s Digest; (5) no affidavit was filed showing that only appellee was in possession, which affidavit appellee alleged to be required by § 10981 of Pope’s Digest, and (6) appellee failed to exhibit at the trial tax receipts showing tax payments by appellee for the past three years, and deed under which he holds, alleged to be required by § 10982.
Appellants’ argument that failure of appellee to observe the requirements set forth in the sections of Pope’s Digest above referred to defeats the sale appears to be based on the premise that this is an action to quiet title, sometimes referred to as a confirmation suit, which action is provided for in Chapter 136 of Pope’s Digest. The sections of the digest relied on by appellants are all included in the chapter of the digest referred to relating to quieting title and have no application to or connection with a suit of the character here presented.
As above stated, this cause was begun by appellee as an action in ejectment, but during the progress thereof, became converted to a suit in the nature of one to set aside a prior judgment. The sections of the statute quoted and relied upon apply only in actions to quiet title, brought under the statute providing for such actions. .
Appellants ’ argument that the judgments are void for lack of proper service has been foreclosed by prior decisions of this court. As before stated, Faulkner Lake Drainage District was organized under Act 279 of the Acts of the General Assembly of 1909', and acts amendatory thereof, now appearing as §§ 4455 et seq., of Pope’s Digest. Sections 4482 and 4483 of Pope’s Digest provide that assessments in such improvement districts shall be enforced by foreclosure suit in the chancery court where the land lies. Section 4482 specifically provides that “notice of the pendency of suit shall be by publication,”etc. Such section later provides that ‘ ‘ such proceedings . . . shall be in the nature of proceedings in rem, and judgment enforced against the lands and . . . not against other property ... of defendant’.”
It is clear that the method provided by the statute, for obtaining service and acquiring jurisdiction, is publication of notice and not delivery of a summons to the owner of the land.
Appellants ’ argument that such method of service is contrary to constitutional sanction has been before the court before, and such argument rejected.
In the case of Vietz v. Road Imp. Dist., 139 Ark. 567, 214 S. W. 50, it was said: “The fourth ground of attack seems to be that the Legislature has no authority to authorize a foreclosure of a tax lien by proceedings in rem, or by proceedings in the nature of proceedings in rem, but we have upheld such authority in cases dealing with a similar provision in other special statutes creating improvement districts, as well as general statutes authorizing organization of improvement districts in municipalities.”
In the case of Hobbs v. Lenon, 191 Ark. 509, 87 S. W. 2d 6, it was said: “In the State’s foreclosure suit against the mortgaged land, the only subject-matter there involved was the specific mortgaged land and the application of the land to the payment of the debt secured thereby, an action strictly in rem. The Pulaski County Chancery Court was, by the act of January 16, 1861, vested with jurisdiction of suits for that purpose. The mortgaged land was made the subject-matter involved. No person could be made defendant. Constructive service by publication was the only service required or contemplated by the act. The record here shows the provisions of the act were followed in said proceedings giving the chancery court jurisdiction over the mortgaged land. And, having acquired jurisdiction of the subject-matter, its decree therefore would not be subject to collateral attack.
“It is equally well settled that judgments and decrees entered upon constructive service by publication will be given the same favorable presumption as judgments and decrees upon personal service. Crittenden Lbr. Co. v. McDougal, 101 Ark. 390, 142 S. W. 836; Price v. Guinn, 114 Ark. 551, 170 S. W. 247, L. R. A. 1915C, 158; State ex rel. Attorney General v. Wilson, 181 Ark. 683, 27 S. W. 2d 106, as was held by us in the Turley case, supra (188 Ark. 1069, 69 S. W. 2d 882), that the' rigor of the rule is not modified or impaired because the proceeding was one in rem and not in personam.
“ ‘The proceeding it authorized is in rem, and the jurisdiction it exercised under it, and the process by which that jurisdiction is acquired, have been upheld so often by this court in similar cases that it is sufficient now to cite the decisions in which they have been sustained,’ citing St. Louis, etc., Ry. v. State, 47 Ark. 323, 1 S. W. 556; Williams v. Ewing, 31 Ark. 229; Williamson v. Mimms, 49 Ark. 336, 5 S. W. 320; McCarter v. Neil, 50 Ark. 188, 6 S. W. 731; Doyle v. Martin, 55 Ark. 37, 17 S. W. 346; Gregory v. Bartlett, 55 Ark. 30, 17 S. W. 344; McLain v. Duncan, 57 Ark. 49, 20 S. W. 597; Scott v. Pleasants, 21 Ark. 364; McLaughlin v. McCrory, 55 Ark. 442, 18 S. W. 762, 29 Am. St. Rep. 56; Worthen v. Ratcliffe, 42 Ark. 330. See, also, Parker v. Overman, 18 How. 137, 15 L. Ed. 318; Pennoyer v. Neff, 95 U. S. 714, 24 L.Ed. 318; Boswell’s Lessee v. Otis, 9 How. 336, 13 L. Ed. 164.”
Counsel for appellants call our attention to the recent case of Eddy v. Schuman, 206 Ark. 849, 117 S. W. 2d 918, decided February 21, 1944, in which we held that commissioners of the district were charged with the duty to obtain a fair purchase price for resale. Here we have a case where for slightly more than $200, one hundred acres of river bottom land located near the city of Little Eock were sold. There is no proof of the value in the record, and while doubtless it is worth much more, allegations and proof of such fact are lacking. The primary answer to appellants ’ contention, however, is that this is not a class’ suit brought for the benefit of the district as a whole, but a private suit to recover these lands .for the benefit of original owners.
Appellee concedes that the notice of sale was published once more than the statute requires, and says that excessive costs incurred in this manner renders the sale void under the rule announced in the recent case of Lumsden v. Erstine, 205 Ark. 1004, 172 S. W. 2d 409, but counsel voices his disapproval of that case, and calls upon this court to overrule it. The rule there announced is the law. Many times prior to the Lumsden-Erstine opinion, we had declared that decrees of confirmation had in accordance with, the provisions of Act 119 of 1935 barred all rights except those going to the “power to sell.” In that opinion we declared that the inclusion of an excessive amount of costs defeated the power to sell: We are unable to see how this rule could have effect in a collateral attack on a sale conducted in a court of equity for the foreclosure of assessment liens for improvement district betterments, mortgages, or other types of liens usually foreclosed by equitable proceedings.
Finding no error, the decree is affirmed. | [
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McHaney, J.
.Appellants, First National Bank of El Dorado and J. K. Mahoney, are trustees under the last will and testament of George T. Hawley who died in 1934, leaving surviving him his widow and five minor sons. He left an estate of about $80,000, consisting principally of stocks of private corporations. His will, after providing for the payment of his just debts, conveyed, in' the second paragraph, to appellants as trustees all his property, real, personal and mixed, for the use and benefit of his wife and five sons, naming them, to handle for his wife and children as follows:
“It is my desire that my trustees pay to my wife from the income of my estate the sum of three hundred ($300) dollars per month, my said wife to use said funds for the maintenance, support and education of herself and my children, and said trustees shall pay to her for the use and benefit of herself and children any additional sums that in their judgment and discretion may be conveniently paid to her out of the income from said estate if the same is sufficient and if the income does not amount to as much as three hundred ($300) dollars per month, then I want my trustees to give her a sum of not less than two hundred ($200) dollars from the income of said estate and if the income is not sufficient, then from the corpus of the estate; this to be done by my trustees until the youngest child shall arrive at the age of twenty-one years, or if my wife should remarry prior to that time then said sums of money, as aforesaid, shall be paid to her for the use and benefit of my children alone, and if at any time my trustees herein named are convinced that said funds are not being used for the benefit of my children, then I direct that my trustees properly provide for the payment of said monthly income that my children may receive directly the benefits aforesaid.
“When the youngest child shall arrive at the age of twenty-one years, as aforesaid, then if my wife is still single, I desire that my property be divided equally,. share and share alike, among my wife and children, each taking a share alike, my wife taking a share the same as a child. My trustees are authorized and directed to make this distribution in kind, if possible, and if not, they have full power to execute any and all such legal papers as may be necessary to convey title to my property, when it be personal, real or mixed, so long as said conveyance is for the benefit‘of my wife and children, that, of course, shall be in the discretion of said trustees and their power is as full and complete as if I myself were present and executing said legal instrument, whether it be a mortgage, note or deed of conveyance, so long as the same is for the benefit of the beneficiaries hereinbefore named.
“I desire and charge my trustees with the duty and responsibility of seeing that my children receive the proper opportunity for an education and I now express the desire that everything be done by my trustees to see that my children receive an education that can consistently be done by them.
“In witness whereof, I have hereunto set my hand this the 31st day of January, 1930, in the presence of Mable F. Henry and J. W. Bryant, who attest the same at my request. ’ ’
The widow, Delcena Hawley, remarried in 1935 and is now Mrs. Brown. She and her second husband and a child by him live in the Hawley home, and the Hawley children also lived in this home, except when away at school or while in the military service. Two of them were at home at the time of trial and three were in the armed forces. In previous litigation it was held that, after remarriage, the widow should not participate in the monthly payments made by appellants under the will, and that having accepted benefits under the will, she could not later renounce it and take dower. There was no appeal.
A disagreement arose between appellants and appellees as to the proper construction of the will. Appellants, the trustees, contended that the monthly allowanee was intended for the five children, the widow not to participate because of her remarriage, and that when a child is not at home or in need of the support, his pro-' portion, $40 per month, should not be paid to the widow for the support of the children at home. Appellees contend that the widow is entitled to the full monthly payment regardless of the number of children at home or dependent thereon for support. The parties were in disagreement on other questions, so appellees brought this action for an interpretation of the will in certain respects, and appellants, by way of cross-complaint, sought a construction as to other matters. Trial resulted in a decree which was unsatisfactory in some respects to both parties, and there is here a direct and a cross-appeal.
It will be observed that the will does not in express terms confer any power on the trustees to sell any of the assets of the estate for re-investment, but only for the support and education of the children (the'widow having remarried) in the clause which provides: ‘ ‘. . . then I want my trustees to give her a sum of not less than two hundred ($200) dollars (per month) from the income . . . and if . . . not sufficient, then from the corpus. ’ ’ Appellants asked the court to construe the will aPd to determine the power and duty of the trustees in two respects as to the stocks or bonds held by them in private .corporations: (1) Whether they were required to sell these assets held by them and convert them into so-called “Legáis,” that is, such securities as are permitted to be invested in by statute by guardians, administrators, trustees, etc., as set out in §§ 997 and 6258 of Pope’s Digest and by § lc of Act 343 of 1939,. p. 910. The language of all these statutes is permissive and not mandatory. Section 997 provides that the trustee “may invest” in the securities named, and this section appears also as § 7681 of Pope’s Digest; § 6258 says a trustee “it shall . . . be lawful to invest”; and Act 343 says “authorized”; and (2) whether they are required to hold said stocks, regardless of their future value or income, or may they, in the exercise of reasonable skill and caution, sell same and re-invest the proceeds in other securities. In determining these questions the court held: “The trus tees are not authorized, under the terms of said will, to make any sale of the corpus of the estate, except for the purpose hereinabove set forth, and in no event are they authorized, under the will, to make a sale of any of the corpus of the estate for the purpose of re-investment.”
We agree that the trial court was correct in holding that appellants were not required to sell the stocks held by the testator and invest in so-called “legáis.” But we think the court was in error in holding that “in no event are they authorized to make a sale of any of the corpus of the estate for the purpose of re-investment.” If the trustees in this case should determine that some of the stocks so held have declined in value or that loss to the estate is probably impending, either by decline in value of the stocks or of the income therefrom, they have the power, subject to court approval, to sell such stocks and reinvest the proceeds. In such event, if the trustees should reinvest funds of the estate in securities other than “legáis,” they would do so at their own risk in case of loss, and they would have the burden of showing the exercise of care and skill, such as would be exercised by an ordinarily skillful and prudent man. As said in Graham Bros. Co. v. Galloway Woman’s College, 190 Ark. 692, 81 S. W. 2d 837, “'If, therefore, a trustee has exercised'the proper care and diligence, he is not responsible for mere error or mistake of judgment; but if he has acted in good faith and with reasonable diligence and prudence, he is free from personal responsibility. ’ ’ If appellants as trustees desire absolute security from personal responsibility, they should invest in those securities enumerated in the statutes above cited.
In the recent case of State Nat’l Bank of Texarkana v. Murphy, ante, p. 263, 180 S. W. 2d 118, we held that statutes enumerating investments which trustees may make are permissive and do not prohibit other investments which are authorized by the instrument creating the trust. There the will gave the trustee the power to make such investments and reinvestments as it might deem safe and desirable,' and specifically released it from liability for mistakes of judgment or losses that might occur in the management of the trust estate. Here, the will, gives no such power, and we think that appellants would incur no personal liability for losses on investments other than “legáis,” if they are able to acquit themselves under the rule announced in the Graham Bros. case, supra.
As to the dispute between appellants and appellees regarding the monthly allowance and to whom payable, we think the court correctly, with one exception, construed the will as follows: ‘ ‘ That under the mandatory provisions of said will said trustees are required to'pay to said widow a sum of, at least, $200 per month for maintenance, support and education of said children, even though the net income from said estate does not equal that much and even though said trustees are required to use the corpus of said estate for said purpose, or to sell a portion of the assets to raise said funds; that in the event that the net income from said estate exceeds the sum of $200 per month, then said trustees under the mandatory provisions of said will, are required to pay to said widow said monthly payments therefrom up to the sum of $300 per month for the said support, maintenance and education of the children of said testator. These payments.in all cases must be made to said widow and disbursements of same must be made by her for the support, maintenance and education of the children of the said testator, provided that in the event that the trustees determine from the true facts thereof that said funds are not being used for said purpose, then said trustees shall not be required to make said monthly payments to said widow, but may so disburse said funds to or through others as to insure that the same are properly expended for the support, maintenance and education of the children of the said testator. In all cases where such monthly payments shall be made to the widow by the trustees, the trustees' shall not be liable for the widow’s misuse of said funds unless the trustees have actual knowledge of such misuse and fail to act thereafter to prevent same.”
This language says the trustees must pay to the widow $200, regardless of income and may invade the corpus if the income is not sufficient, which is correct. It then says that, if the income is in excess of $200 per month, then the trustees “are required to pay said widow said monthly payments therefrom up to the sum of $300 per month . . .” We do not think the will limits the amount to be paid to the widow for the support and education of the children to $300 per month, if the income is sufficient to pay more. The will first provides for the payment to her from the income of $300 per month, and it then says: “. . . and said trustees shall pay to her . . . any additional sums that in their judgment and discretion may be conveniently paid to her out • of the income from said estate if the same is sufficient . . . ” So, payments from income are not limited to $300 per month, if sufficient income is available, and if, in the judgment and discretion of the trustees, it may conveniently be done. Since the widow has remarried, she is not entitled to benefit personally from the monthly payments, as the court correctly held. But the fact that some of the children have become of age and are not now living in the home does not justify the trustees in refusing to pay to the widow for expenditure by her the whole sum available for the support and education of the children, unless they determine she is not using said funds for the benefit of said children. The court so held and we affirm this holding. .Two of the children are still minors, the youngest being 14 years of age. The testator-no doubt had in mind that the greatest expense would be incurred in sending the children away to school. This extra expense would naturally be first incurred on the oldest, then on the next and so on to the youngest. If, as the trustees seek to do, they are permitted to withhold $40 per month each for the three who are in the army, there most probably would be an insufficient sum left to support and educate the two now remaining in the home. Whatever his purpose was, it is clear that the will directs payment of whatever monthly sums are available, to be not less than $200' per month, even though the corpus of the estate must be invaded, to the widow for the use and benefit of the children, except in case of the con tingency above 'mentioned. The court so held and we affirm this holding.
Another dispute relates to the power and duty of appellants to make repairs to the Hawley residence, situated about 6 or 7 miles out of El Dorado, on an 8%-acre tract of land, where the widow, the two minor Hawley children, her present husband and her child by him' reside. The homestead is valued at $1,500 and is badly in need of repairs. Appellants think repairs should be made, but not to the extent contended for by appellees. The trial court held that the trustees had the implied power to maintain said property to prevent it from going to waste, if it can be done out of the income, but could' not invade the corpus for this purpose. Here, we. think, the court was in. error. This homestead is a portion of the corpus of this estate and was conveyed to the trustees, as were the other assets. To prevent this property from going to waste, it is necessary to make repairs and keep it in a livable condition, even though some other asset must be sold to do it. If it can be repaired out of income and still pay the minimum of $200 monthly to the widow, this would be proper, but if it cannot be done out of income it still must be repaired to prevent waste and for a livable home for the children. 4 Bogert on Trusts, § 799. The extent and kind of the repairs to be made rest in the sound discretion of the trustees, subject to the approval of the chancery court.
Both parties requested the trial court to construe that clause in the will providing for a distribution of the estate when the youngest child becomes 21 years of age, wherein it is provided: “then if my wife is 'still single, I desire that my property be divided equally,” etc. Appellants contend that, having remarried, the widow cannot “still” be single when the youngest child becomes 21, even though her present husband be then dead or divorced. Appellees take the other view. The trial court declined to decide the question'as to what her status would be seven years hence, or whether under certain conditions or any conditions she would be entitled to a distributive share in the estate, and we agree that he cor rectly declined to determine this question. It is premature. She may then be <|ead.
The cause will be remanded to the chancéry court for further proceedings not inconsistent with this opinion. | [
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Holt, J.
Appellant, J. C. Barrent-ine, filed claim with the Workmen’s Compensation Commission, under the provisions of Act 319' of 1939, seeking an award of compensation against his employer, Dierks Lumber & ■Coal Company, appellee, for injuries alleged to have been received by him arising out of and in the course of his employment. Upon a hearing before the Commission, appellant’s claim was denied and this action of the Commission was affirmed on appeal to the Garland circuit court. An appeal to this court followed.
Briefly stated, the material facts are: In the forenoon of May 29,1943, appellant and a co-employee, Willie Parker, were working for appellee performing common labor,'described by appellant as “tailing the re-saw.” A week or two before this date, one of Parker’s fingers had been cut off by a saw. The finger stump was still sore and before noon of that day, Parker, says appellant, “mashed his (sore) finger and got huffed up about it. After noon when he went to work, I said something about it; I said, ‘I am sorry you mashed your finger over there. It looked like it made you mad. I couldn’t help it.’ He said, ‘No, I wasn’t mad at anybocty.’ It was right after noon. We were there tailing the re-saw. He was in and out. I don’t know where he worked that day; he did work over in the box mill. I had gone to get a drink of water, and came back over there, and I don’t know whether he-was pla3ring with; me or mad at me, or what it was, but he hit me over the head with a roll of twine that we used to put oil on the saw. ‘ Q. Did you say anything to him about how his finger came to be off? A. Yes. Q. Tell the jury what you said. A. There were quite a few things said about it. I had run that saw where he cut his finger off a month or two, off and on, and something was said about his finger — that it would probably keep him out of the army because he cut his hand or finger off — I didn’t know whether he had cut his finger off or not. So I don’t tliink lie liked me, to begin with. Q. That was one of the tilings that prompted Mm to Mt you when you came back from getting a drink of water? Is that correct? A. Yes. Q. Then you and he had a fight? A. Yes. Q. After the fight, what did you do? A. They took him out from,where we were working, I don’t know where he went to; I didn’t see him any more. Q. You didn’t get hurt during that fight, did you? A. No’.” Following this fight, about two hours later in the afternoon, appellant, while at a drinking fountain, furnished by appellee for its employees, was struck in the back of the head by Parker from behind, and when he regained consciousness, he was in a doctor’s office. Appellant did not know who hit him at the time. “Q. Did you learn that the boy came back and knocked you in the head with something? A. Yes, after I got up in the doctor’s office, I wanted to know what was wrong with me, and they told me he knocked me in the head. Q. This same boy (meaning’Parker) you had had a fuss with had done that? A. Yes.”
In its conclusions of law, the Commission said: ‘ ‘ The language employed by this claimant and other workmen to Parker was such that would be calculated to engender passion and result in an occurrence such as actually followed, first a fight, and later an assault upon the claimant, Barrentine. The Commission has held from time to time that disability resulting from a personal altercation, in no manner connected with the work of the master, is not compensable. In the opinion of the Commission, this assault was caused by feeling engendered from purely personal causes and had no connection with the work of the master and did not arise out of employment.”
The rule is well settled that “ findings of facts by the compensation commission are, on appeal, given the same verity that would attach to a jury’s verdict, or to facts found by the judge of the circuit court where a jury was waived.” Lundell v. Walker, 204 Ark. 871, 165 S. W. 2d 600.
Unless, therefore, we can say that there was no substantial evidence on which to base the Commission’s find ings, it was the duty of the Garland circuit court, and this court on appeal, to affirm the Commission’s finding.
The applicable provisions of the compensation act, supra, are: § 2 (f), which provides: “ ‘Injury’ and ‘personal injury’ shall mean: Accidental injury or death arising out of and in the course of employment, •. . .’’and also § 5, which provides: “Every employer subject to this act shall in accordance therewith secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of the employment, without regard to fault as a cause for such injury; provided, that there shall be no liability for compensation under this act when the injury has been solely occasioned by intoxication of the injured employee while on duty, or by willful intention of the injured employee to bring about the injury or death of himself or another.”
The question presented is whether appellant’s alleged injuries arose out of and in the course of employment. To be compensable, the alleged injury must not only arise in the course of the employment, but also out of the employment — both elements must be present. We think it clear, on the facts presented, that the injury which appellant received at the hands of his co-employee, Parker, grew out of and was the result of a fight or a personal encounter, between these two employees, provoked by appellant, which had no causal connection with appellee’s employment. Appellee, employer, was not interested in appellant’s personal difficulties with a co-employee.
The Workmen’s 'Compensation Act does not provide for general accident insurance. Its purpose is to compensate only for injuries or losses resulting from the risks to which the fact of engaging in the industry exposes the employee, and appellant’s alleged injury here was not the result of such a risk. We, therefore, agree with the Commission’s finding, supra, that the “assault was caused b}7 feeling engendered from purely personal causes and had no connection with the work of the master and did not arise out of employment.”
In tlie veiy recent case of Birchett v. Tuf-Nut Garment Manufacturing Company, 205 Ark. 483, 169 S. W. 2d 574, this court, in upholding the Commission’s finding denying compensation to claimant under facts similar, in effect, to those presented here, said: “The theory behind the Workmen’s Compensation Act is this: Every industry exposes those engaged in it to certain risks of being hurt, such risks arising out of the mere fact of being engaged in that industry. The policy behind the act is the decision of the people that it is fairer to charge as an expense of the industry (to be paid by the ultimate consumer just as he pays for the raw materials used by the industry) a part of the losses arising from the risks, to which those engaged in that industry are exposed by reason of being so engaged, than it is to let such losses fall entirely upon the employee who gets hurt. But the law does not call for general accident insurance. Its purpose is to compensate only for losses resulting from the risks to which the fact of engaging in the industry exposes the employee.
“It might be that working with, or next to, some quarrelsome workman involves a risk to which an employee might be exposed by reason of being engaged in the industry. But being engaged in an industry does not expose an employee to any risk of being hurt in a fight which that employee starts herself by snatching a paper, which does not belong to her, from the possession of a group of her fellows who are not molesting her in any way, and running off with the paper. Being engaged in the industry cannot be said to be the origin or cause of the fight nor to have created a risk of the fight. The fight did not arise out of her employment. Nor did-the fight arise in the course of her employment for she left her employment — her activities in the industry — when she snatched and ran away with the paper, ’ ’ and in Lundell v. Walker, 204 Ark. 871, 165 S. W. 2d 600, we said: “Where a servant acts without reference to the service for which he is employed,-and not for the purpose of performing the work of the employer, but to effect some independent purpose of Ms own, the master is not responsible for either the acts or omissions of the servant.”
We conclude, therefore, that appellant was not entitled to recover compensation under the Workmen’s Compensation Act, supra, that the action of the Garland circuit court in affirming the Commission’s finding should 'not be disturbed, and accordingly, the judgment is affirmed. | [
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Knox, J.
Sam Lloyd, the deceased husband of appellant, at and for some months prior to the date of his death, resided with his wife and family at Blytheville, and was employed by Frisco Transportation Company, as a driver of large freight trucks, running between Blytheville and Memphis. About 2 o’clock a. m., October 7, 1941, while on a return trip from Memphis, he was killed when he drove his truck into the side of a bos car connected in and'forming a part of appellee’s train, which was and for some six or seven minutes had been, standing on and over the crossing formed by the intersection of the railroad and U. S. highway 61, just north of and within the corporate limits of Blytheville. From marks bn the highway an expert deduced and testified that the truck skidded 130’ feet to a point about 20 feet from the box car, where it appeared the brakes were released. The truck continued on its course and struck with such force as to wedge the hood of the truck under the box car, tilting the same to an angle of 45 degrees, requiring the use of a wrecker to lift the box car before the truck could be pulled out from under it. The blow was sufficiently violent to break the coupling-on the end of the box car.
The highway with little or no change in elevation runs straight north a distance of more than two miles before crossing- the railroad at right' angles, and then continues straight for some six blocks, where it turns east. An exceedingly large volume of traffic moves over this highway.
This case was presented upon the theory that the scene when viewed from the moving truck through the open doors of the box car in the surrounding lights and shadows peculiar to this crossing created an illusion that the street was open and unobstructed, and that such illusion constituted an extraordinary hazard, which imposed upon appellee the duty to give deceased and other travelers on the highway special warning thereof through the use of watchmen, gongs, bells, lights, or other means commensurate with the danger.
It is appellant’s theory that the character and location of the box car, the width and location of the opening created by the open doors therein, the rays from street lights high on poles, and the glow from neon signs, all to the north and beyond the crossing, together with darkness to the south out of which deceased approached the crossing, all combined to create this illusion.
The facts most favorable to appellant, tending to establish the elements constituting the alleged illusion muy be stated as follows: The box car was of the automobile type, the dimensions of which are not disclosed. It extended 'entirely across the pavement, -which was approximately twenty feet in width. In the center of each side of the car and directly opposite each other, there were doors about 12 feet wide, both of which at the time were fully opened, permitting unobstructed vision through the openings therefor. Such openings extended from the right-hand edge of the pavement to a point two feet to the left of the center line thereof. There were no lights of any kind in the direction from which deceased approached. The crossing was the line of demarkation between darkness and light. Beginning at a point 201 feet north of the crossing and continuing at intervals of a block along the left side of the highway were small street lamps, hung high on light poles. These lights were visible both over and through the car.
A tourist court was located on the left side of the highway about one block north of the crossing, in front of which was a sign . in which the illuminated word “tourist” automatically flashed on and off. Seventy-five feet north of the crossing and 60 feet from the edge of the pavement, on the right side thereof going north, there was situated a filling station, where a neon illuminated clock was burning.
Some four blocks north of the crossing there was another filling station, in front of which there was a neon sign with illuminated bands around it, carrying an illuminated “66” emblem. These neon signs gave off a bright glare or glow, and illuminated the air so that they could be seen farther than an ordinary light.
Other signs and lights were located along the street, but there is no substantial evidence that .any such were burning at the time of the accident.
The deceased was thoroughly familiar with this railroad crossing. For several months he had driven a freight truck regularly to and from Memphis. His regular run required him to leave Blytheville shortly after noon of each day, drive to Memphis and return and arrive at Blytheville about 2 o’clock the following mornr ing. He thus passed over this crossing at least twice each day — one such daily crossing occurring in the early morning, when the rays from the street lights and electric signs were similar to those existing on the morning of the tragedy.
The trial court directed the jury to return a verdict-in favor of appellee, and from the judgment based upon such verdict comes this appeal.
The precautions which railroads should exercise to warn travelers of the blocking of highways by trains standing at crossings has frequently had the attention of this court. Mo. Pac. R. R. Co. v. Price, 182 Ark. 801, 33 S. W. 2d 336; Gillenwater v. Baldwin, 192 Ark. 447, 93 S. W. 2d 658; Lowden v. Quimby, 192 Ark. 307, 90 S. W. 2d 984; Kansas City So. W. Ry. Co. v. Briggs, 193 Ark. 311, 99 S. W. 2d 579; C., R. I. & Pac. Ry. Co. v. Sullivan, 193 Ark. 491, 101 S. W. 2d 175; Flemming v. Mo. & A. Ry. Co., 198 Ark. 290, 128 S. W. 2d 986; Mo. Pac. Ry. Co. v. Hood, 199 Ark. 520, 135 S. W. 2d 329; Thomasson v. C., R. I. & Pac. Ry. Co., 203 Ark. 159, 157 S. W. 2d 7.
Although, as was stated by Mr. Justice Baker in Mo. Pac. R. Co. v. Powell, 196 Ark. 834, 120 S. W. 2d 349, the- effect of these cases is that ordinarily “a train occupying the crossing is notice to parties approaching in an automobile,” this court has recognized the fact that extraordinarily hazardous conditions may exist, or occur, at certain crossings, which would impose upon the railroad the duty to give special warning that a train blocks such crossing. Thus in the case of Fleming v. Mo. & Ark. Ry. Co., supra, it was said: “It is the settled rule that whether failure of a railroad company to station a flagman at a crossing constitutes an omission of1 such care as an ordinarily prudent person would use under the same o-r similar circumstances, is a question of fact where there are obstructions which materially hinder the view of approaching trains, provided the crossing is used frequently by the public, and numerous trains are run. Inasmuch as permanent surroundings may create a hazardous condition, the rule of care goes further and requires precautions where special dangers arise at a particular time. It is said that the obligation exists, at an abnormally dangerous crossing, to provide watchmen, gongs, lights, or similar warning devices not only for the purpose of giving notice of approaching trains, but such care is to be equally observed where the .circumstances make their use by the railroad reasonably necessary to give warning of cars already on a crossing, whether standing or passing, as where a crossing is more than ordinarily dangerous because of obstructions to the view interfering with the visibility of the responsible train operatives, or those approaching the track.”
The facts in the Fleming case wore held insufficient to warrant application of the rule there announced, and in fact we are cited to, and our own investigation reveals, no case in our reports where such rule has been applied. In many, if not all, of the cited cases the record reveals facts tending to establish conditions of extraordinary hazard much stronger than those disclosed by the record here.
Appellant’s argument that an illusion was created is based primarily upon the fact that the doors of the box car were open so that a driver approaching the crossing could see through, and thus be led to believe that nothing obstructed the crossing.
The street lights being visible over the top of the box car could not have contributed to this illusion. That the crossing constituted the line of demarkation between light and dark appears to have little if any significance. There were no blinding rays of light shining directly into the eyes of the driver of the truck. The neon lighted clock-at the filling station was 60 feet off the edge of the highway — the tourist sign was a block, and the “66” sign four blocks from the scene of the accident.
In the case of Gillenwater v. Baldwin, supra, recovery was denied where on a dark night an automobile at a crossing struck a flat car connected between two box cars. It, of course, goes without saying that a much larger area of unobstructed view was afforded along the full length of the flat car, with no roof above it, than could have existed here, where of necessity such view was confined to the width and height of the door openings.
While the openings might have afforded an unobstructed view on the right-hand side of the road, it cannot be denied that as the truck approached the crossing its headlights, if properly adjusted and burning, would have illuminated the whole of the box car, disclosing its full length and height. Viewing the testimony in the light most .favorable to appellant, it still must be conceded that for at least eight feet along the left side of the pavement the vjew was obstructed by the walls of the box cars. Likewise, the roof and floor of the box car would have been outlined across the entire width of the pavement under the rays of the headlights.
It is clear, therefore, that if deceased had been giving proper attention to the road ahead of him he would have seen this box car in time to have stopped his truck, and thus would have avoided the collision and saved his life. Deceased’s own inattention was the proximate cause of the accident. Assuming that the record discloses negligence on the part of appellee, still the deceased was guilty of contributory negligence. Unless the negligence of the deceased was of a less degree than that of appellee,, appellant-cannot recover. (Pope’s Digest, § 11153.) Ordinarily the relative degrees of negligence which permit or defeat the right of recovery in cases of this type are questions of fact to be determined by a jury; yet where the question becomes one of the legal sufficiency of the testimony it becomes a question of law for the court. St. L.-S. F. Ry. Co. v. Horn, 168 Ark. 191, 269 S. W. 576; Mo. Pac. R. Co. v. Davis, 197 Ark. 830, 125 S. W. 2d 785; Mo. Pac. R. Co. v. King, 200 Ark. 1066, 143 S. W. 2d 55.
There is little or no evidence tending to establish negligence on the part of appellee. Such negligence, if it existed at all, was slight. The evidence is clear that the negligence of the deceased greatly exceeded any negligence on the part of appellee. The fact that although such box car could have been seen for a great distance and that the brakes were not applied until the truck was within 150 feet thereof, shows that deceased failed to give proper attention to the road ahead. The distance which the truck skidded after the brakes were applied and the force and violence attendant upon the impact, even after the forceful application of the brakes, clearly shows that such truck was being operated at an excessive and dangerous rate of speed. The action of the deceased in driving at an excessive and dangerous rate of speed, while failing to exercise proper care to observe the road ahead constituted negligence which exceeded any negligence properly inferable from the facts disclosed by the record, and chargeable against appellee. Under these circumstances,' the trial court did not err in directing a-verdict for appellee, and the judgment is affirmed. | [
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G-rieein Smith, Chief Justice.
The issue is whether H. R. Todd is entitled to participate in certain net profits earned by- the department store operated at Warren, Arkansas, by West Brothers, a partnership as to which Todd was not a member.
■ Appellants AVest own a chain of stores. In 1939 Todd, who had been an assistant, was transferred to Texarkana as manager. In July of the following year he went to AVarren and took charge of the local business on order of S. E. Humphreys, superintendent.
Todd’s first employment by the partnership was at Natchitoches, Louisiana, where in 1936 he was engaged personally by H. O'. AVest as assistant manager. Todd testified that compensation was to be $100 per month, plus five percent of net profits. If made manager he was to receive fifty percent of the first $5,000 and twenty-five percent of all over, after advances had been deducted. As manager his salary was increased to $125 per month, and later to $150. He says there was no agreement for a definite period of time.
Todd resigned, effective August 30,1942, a telegram . to that effect having been sent to the general office at DeRidder, La. The resignation was accepted with expressions of regret.
No claim for profit-participation was made until January 7,1943. Suit was then filed without prior notice, allegation being that earnings for the first seven months of the preceding year had been $6,153.09, the apportion-able percentage of which was $2,788.27, less collected salary of $1,050, leaving $1,738.27. An additional allegation was that the plaintiff would he entitled to twenty-five percent of August profits. The amount was then unknown, but at trial it was stipulated to be $678.76. By this computation the demand was increased to $1,907.96.
AVhen it was shown that profits for the full year were $20,219.63, Todd enlarged his claim, and made the statement shown in the margin. The jury returned a verdict for $1,200, for which there was judgment.
It is difficult to harmonize some of the figures — a task not required of tlie Court. For example, Todd testified that “. . . to July 31, 1942, the store had made $3,937.13 — in round figures $3,900 in eight months, $20,-000 in twelve months and according to the July 3.1 statement they owed me $1,968.57, less my drawing account of $1,050, or the net amount of $918.57.”
The latter claim does not agree with $957.57 set out in a monthly statement. There are other differences.
A. B. Tollett, who succeeded Todd, received a bonus of $4,268 for the last four months of 1942 because, as he says, “I was in the store at the end of the year.”
The only material difference between Todd’s testimony and that given by West is that West says the year-end agreement was expressed, while Todd insists nothing was said about, the time his employment should continue.
The verdict seems to have been a compromise, not predicated upon any' definite figure. The jury had a right, of course, to believe Todd and to disbelieve West. Seemingly it did neither. Each witness was an interested party, and his testimony will not be treated as undisputed even if no conflict appeared.
Did the jury have a right to interpret this contract ?' That is its province in case of ambiguity. If not indefinite — that is, if the meaning, of what was said is so clear that reasonable minds would agree — then construction is for the Court. Eliminating West’s testimony, we have Todd’s statement that nothing' was said regarding the time he should serve, or when the bonus would be payable.
In circumstances such as we are dealing with it is important to know what meaning the parties placed upon the contract when it was made, or during performance, and this the Court (without aid of jury) should do if the conduct is susceptible of but one conclusion.
According to Todd, and the balance sheet he used, net profits at the time he resigned were .less than five thousand dollars. In the light of all testimony, showing the most amicable relationships throughout, and the expression by West that Todd was an excellent manager, it is strange that if the claimant, had thought his contract contemplated payment of a bonus as here contended for, he would have waited four months before mentioning this view.
Seemingly Todd, after December 31, ascertained that substantial profits had been made, and then concluded to place upon the contract the construction set out in the complaint. But even after that he changed positions. Not satisfied with the first contention that participation should be upon an eight months basis, he shifted to a contention ■ that the much larger profits earned under supervision of his successor should be considered in deter- • mining his over-all apportionment. Under this construction, his contribution to earnings did not end with severance of the employment relationship, but was projected into the future in such a way as in effect to constitute a partnership in fact, though not at law.'
It is strongly indicated that Todd did not, when he resigned, regard the contract as one entitling him to participation in profits. In not at once asking that he be paid he inferentially assented to the construction now sought by West. However, Todd .disputes West’s testimony. If, as appellee contends, nothing was said about the employment perio'd, there was sufficient ambiguity in this verbal arrangement (a conversation never clarified by writing) to justify the Court in having the jury say whether designation of a monthly salary, coupled with methods of payment and periodical statements showing bonus accruals, and a consideration of all other relationships, were sufficient to create in the mind of a reasonable man (and particularly one situated as Todd was) a belief that it was West’s purpose to pay the bonus in the event of resignation before a year (any year) should end.
Before Todd testified, two witnesses were examined for the purpose of informing the jury that he was a man of good character, entitled to belief. Objection was made, overruled, and exceptions saved and brought forward in the motion for a new trial. It was a mistake to admit such testimony at that time. Pope’s Digest, § 5199. Although conceded in oral argument that this was error, contention is that it was cured when West subsequently testified to Todd’s good character. We do not think so. Reputation for truth and veracity in the community in which a witness lives is the matter of concern. Character may be different from reputation.
In any event it was not proper to prepare the minds of jurors with a build-up intended to convince them in advance of the plaintiff’s appearance that here is a man whose word is guaranteed by good citizens — in the instant case one was a minister, the other a postmaster.
For the error in admitting this testimony the judgment is reversed; but the cause is remanded for a new trial. Todd may not recover an amount in excess of a percentage of profits earned while he was manager. It is so ordered.
The statement was: “According to the figures stipulated (20,219.63), if the manager had completed a full year he would have been entitled to $6,304.90, against which his drawing account and borrowed money should be deducted. I claim I am entitled to two-thirds of that, less my drawing account, because I remained in the Warren store eight months, or the sum of $3,003.26.” (In an amended complaint he asked for $3,112.50.) At one time in the testimony Todd said: “According to the monthly statement furnished me July ál, I was entitled* to a bonus of $957.57.” | [
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