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McFaddin, J.
This is an attempt by the beneficiaries to remove a testamentary trustee on the grounds of (1) absence of the trustee, and (2) hostility between trustee and beneficiaries. From a decree of the chancery court refusing the petition there is this appeal by the beneficiaries.
Simon Blumenstiel departed this life May, 1939; and in June, 1939, there was admitted to probate in Garland county, Arkansas, his last will and testament (dated May 18, 1936) and the codicil thereto (dated April 14, 1938). By these instruments John H. Morris, (appellee), was appointed executor and trustee. All of the property of the deceased was devised and bequeathed to the said trustee, and a trust established for 20 years from the death of the testator. The trustee was directed, inter alia, to (a) hold all securities until maturity, (b) rent the buildings, (c) keep on hand not in excess of $5,000 cash, (d) pay $200 per month to each of the two beneficiaries, Buth Blumenstiel and Alfred Blumenstiel (children of the testator), (e) render semi-annual reports to the two beneficiaries, and (f) render any annual net income of the trust, after paying taxes, insurance premiums, legacies, and other expenses, to the said two beneficiaries, Buth Blumenstiel and Alfred Blumenstiel. The sale of any corpus of the estate could be accomplished only on the concurrence of the trustee, and the two beneficiaries, and the order of the probate court. The will, as contained in the transcript before us, consists of several printed pages and most all of the will, except the first few lines, is concerned with detailed in structions to tlie trustee. The will recites: “John H. Morris and I have agreed that for his services as trustee under this will, and as executor of the will, he shall receive and be paid the sum of $200' per year . , .” The will further recites that in the event of the death or incapacity of John H. Morris then Alfred Blumenstiel .(one of the beneficiaries) should serve as trustee.
The Blumenstiel estate and trust consists of stocks, securities, government bonds, and certain real estate which is business property in the city of Hot Springs, Arkansas, and leased on a long term monthly rental basis. John H. Morris served as executor from the death of the deceased, and served as trustee from the closing of the administration; and there is not the slightest intimation of anything except the utmost integrity and fidelity on his part. In the case of Murphy v. Morris, Trustee, 200 Ark. 932, 141 S. W. 2d 518, another part of the same Simon Blumenstiel will was before this court. Other facts appear hereinafter.
As previously stated only two grounds are urged by appellants for removal of the trustee; and we discuss these.
I. Absence of the Trustee. J. IT. Morris was an officer in the United States Army in World War I; and on January 20, 1943, he again entered the military service of the United States. At the time of the trial below (June 24,1943), when he was back in Arkansas on leave, he testified that he was then stationed at Camp Hood, Texas, serving in an administrative capacity in the Insurance Section of the United States Army. He is still a citizen and resident of Arkansas, but since January 20, 1943, he has been in the United States Army stationed in Texas; and this military service is seized upon by the appellants as a cause for the removal of Morris as trustee. Act 21 of 1943 has no application here because Morris is a resident.
Our search discloses four Arkansas cases involving the removal of a trustee; but none of these cases involved either of the particular grounds here urged. In Mandel v. Peay, 20 Ark. 325, concerning trustees in a deed of trust, Chief Justice English stated that if trustees should waste the property of the trust they could be removed. In Williams v. Nichol, 47 Ark. 254, 1 S. W. 243, Mr. Justice Battle recognized that the acts or omissions of a trustee must he such as to endanger the trust property before a trustee should be removed. In Williamson v. Grider, 97 Ark. 588, 135 S. W. 361, Mr. Justice Wood stated that where a trustee had proceeded in accordance with the directions of a lower court the trustee should not be removed even if on appeal it should he held that the directions of the lower court were erroneous. In Harr v. Fordyce, 88 Ark. 192, 113 S. W. 1033, Mr. Justice Battle listed four causes for removing a trustee being, the endangering of a trust property, dishonesty, incapacity, and infidelity. The grounds for removal urged in the case at bar are different from any recognized in any of our previous cases, so wo turn to text writers and general authorities.
In 65 C. J. 618 the rule is stated: “Absence or Removal from Jurisdiction. In the absence of contrary statute, a trustee’s departure from the jurisdiction does not ipso facto operate to deprive him of office, nor compel the court to remove him upon application, although absence in a foreign country may create a prima facie case for removal on petition of the cestui. As a general rule, removal of a trustee on the ground of non-residence or absence from the jurisdiction is discretionary with the court, which will ordinarily not regard the hare fact of absence or non-residence as ground for removal, but will remove an absent trustee where his absence endangers the trust estate, as where the absence is of a prolonged or permanent character precluding proper attention to the trust, or where, in addition to absence, there is also neglect of duty.”
The above is the most favorable for the appellants that we have been able to find concerning absence or non-residence as a ground for removal. Many of the standard authorities on Trusts either fail to discuss non-residence as a ground for removal or, else, give it scant consideration. In Scott on “Trusts,” Yol. 1, p. 556, ff, absence from the jurisdiction is not even considered. In Bogert on “Trusts and Trustees,” Vol. 3, p. 1665, it is stated that absence is not necessarily a ground for removal. In Lewin on “Trusts,” 14th. Ed., p. 431 (an English publication), it is stated that only by virtue of a statute of England of 1925 is absence considered as grounds for removal. In 26 B. C. L. 1276 absence is not even mentioned as grounds for removal.
The cases from other jurisdictions, as cited by appellants, do not sustain appellants’ contentions. In Letcher v. German National Bank, 134 Ky. 24, 119 S. W. 236, 20 Ann. Cas. 815, the Kentucky court held that non-residence of the trustee must be coupled with the endangering of the trust estate before removal of the trustee would be ordered. In the note to this case in 20 Ann. Cas. 816 there is a list of other cases sustaining the Kentucky court. In Welch v. Welch, 235 Wis. 282, 290 N. W. 758, 293 N. W. 150, the Supreme Court of Wisconsin refused to remove trustees on the bare fact of absence or non-residence. And in Brocker v. Ware (Delaware, 1942), 29 Atl. 2d 521, the court of chancery of Delaware recognized that mere non-residence of the trustee was not in itself a sufficient cause for removal. In all of these cases it was stated that there must be the endangering of the trust fund or some other matter coupled with the absence before there was a proper case for removal.
Even under the rule stated in Corpus Juris, supra, the appellants have made no case for removal of the trustee for at least two reasons: In the first place, the removal is in the sound discretion of the trial court. The chancery court refused the removal in the case at bar, and we cannot say that the court abused its discretion. Secondly, there is no showing, in the record here, that the trust is suffering or endangered in any way by reason of Mr. Morris ’ absence in the military service. He is seeing to it that the rents are regularly collected, the property insured, the taxes paid, the monthly checks sent to the beneficiaries and his semi-annual reports filed. In short he is not neglecting the trust estate; and we find no attempted delegation of any discretionary duties. Mr. Morris is at tlie same time being faithful as a trustee and also serving as a loyal, patriotic citizen. Of course if Mr. Morris should be sent overseas then there might be some cause for the appointment of a temporary trustee during his absence overseas; but on the record before us the appellants have made no case for the removal of the trustee on the grounds of absence from the jurisdiction.
II. Hostility Betiveen Beneficiaries and the Trustee.
The appellant, Alfred Blumenstiel, did not testify in this case. The only witness who testified for appellants was Ruth Blumenstiel; and she testified, (1) that there was hostility between her and John H. Morris, (2) that this hostility had existed from the death of the testator (her father), (3) that she had found Morris to be arbitrary, (4) that he had not consulted her, (5) that he liad not followed her advice when she volunteered it, and (6) that this hostility was growing rather than diminishing. Morris on the other hand testified that he had no hostility toward Ruth Blumenstiel, but that he had refused to allow her to borrow sums of money from the trust, and he gave this refusal as the reason for her hostility toward him. There was no evidence of any hostility between Alfred Blumenstiel and the trustee. In fact, Morris testified that he had frequently discussed various matters concerning the trust with Alfred Blumenstiel, who was present in court at the time Morris testified.
We’ quote from a few of the authorities on this question of hostility as a ground for removal of the trustee:
In 65 C. J. 620 it is stated: “Personal hostility between a trustee and beneficiaries is not per se a ground for removal of the trustee, nor is the cestui’s mere loss of confidence in a trustee ground for his removal, and where the duties of a trustee are of a purely formal and ministerial character, and there is no probable detriment to the beneficiary from hostility, the courts will ordinarily refuse to remove the trustee on this ground. But such personal hostility is a factor to be taken into consideration, and will justify removal of the trustee where it appears that the personal hostility of the parties combines with other circumstances to render removal of the trustee essential to the interests of the beneficiary and the due execution of the trust . . . ”
And in 26 E. C. L., p. 1276, it is stated: “While, in a case where the trustee has a discretionary power over the rights of a cestui que trust, and has duties to discharge which necessarily bring him into personal intercourse.with the latter, a state of mutual ill will or hostile feeling may justify a court in removing the trustee, it is not sufficient cause where no such intercourse is required, and the duties are merely formal and ministerial and no neglect of duty or. misconduct is established against the trustee. ’ ’
And to the same effect see Bogert oil “Trusts and Trustees,” Yol. 3, p. 1673, and Scott on “Trusts,” Yol. 1, p. 559. In 45 A. L. E. 331, there is an annotation on the subject “Hostility Between Trustee and Beneficiary as Grounds for Former’s Eemoval.” From all of these authorities and the cases cited, we summarize the rule that: “Mutual hostility between .the beneficiaries and the trustee is sufficient ground for the court to remove the trustee if (1) the provisions of the instrument creating the trust require mutual interchange of ideas, and (2) if the hostility tends to defeat the purpose of the trust; but even in the concurrence of these two circumstances, the removal is still in the discretion of the court. ’ ’
Applying the above rule to the case at bar we fail to find any facts that would justify the removal of the trustee. Euth Blumenstiel testified as to her feeling of hostility toward the trustee. But she was the only witness for her side, and we find no concrete facts in the record to justify her feeling. Her statements were merely generalities as evidenced by this question and answer: “Q. Without going into those details state whether he (Morris) has taken an arbitrary stand with you, that he is running the estate and you have nothing to do with it at all. A. Yes, that is correct.”
As regards the real estate, she admitted that it was not necessary for the trustee to consult her about renting the property.' As regarding the stocks and bonds, she admitted there was no reason for her to be consulted. She finally admitted that Morris had complied with every provision of the will; and then the following questions and answer show her inability to be specific: “Q. Can you tell this court of one instance where the estate of Simon Blumenstiel has suffered from any act of Johnny Morris through negligence? Can you point to one specific injury that the estate has suffered from his conduct as trustee? A. Well, no, I can’t.” .
The trustee testified that there was no hostility on his part. He was doing his best to carry out the wishes of his former business associate. The following questions asked and answers given by Mr. Morris are in point: “Q. Did you or not occupy the same position or act in about the same capacity prior to Mr. Blumenstiel’s death? A. I did. Q. For whom? A. I did for Mr. Blumenstiel and his partner, Mr. Wolf, who is present. I still act in that capacity for Mr. Wolf who is present in court. Q. I will ask you whether or not prior to Mr. Blumenstiel’s death you discussed his will with him or he discussed his will with you? A. He did. . . Q. Do you know of any act or omission or anything else that you have done since you have been acting as trustee that has caused damage or injury of any sort to the estate? A. No. Mr. Blumenstiel was one of my best friends. He left me something to do, and I have tried to do it to the best of my ability. ”
Mr. Morris is a man who is acting as trustee of an estate that owns substantial building’s, stocks, government bonds, and other securities, who was originally under a fidelity bond of $200,000, and which was reduced to $50,000 by the probate court on request of the beneficiaries of the trust, who looks after all of this property and pays the beneficiaries their checks of $200 each per month. For all his services Morris receives only $200 per year because of Ms agreement with the testator whose former partner (Mr. Wolf) retains Mr. Morris’ services even at the present time. Certainly no injury to the trust or hostility on the part of Morris was shown; and.one of the beneficiaries (Alfred Blumenstiel) who would succeed Morris as trustee did not even testify as to any hostility. In short, appellants did not make a case for the removal of the trustee on the ground of hostility.
Finding no error, the decree of the chancery court is in all things affirmed. | [
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Robins, J.
Appellants, on March 12; 1941, sued Bates Coal & Mining Company, R. A. Young & Sons Coal Company, Arthur Raines, Trustee, Ben Bedwell, Arthur Raines, R. A. Young, Sr., and H. W. Young, in nine separate actions in the Scott circuit court, to recover damages for the alleged wrongful deaths of nine coal miners, who were killed in an explosion at the Bates Coal & Mining Company mine in Scott county, Arkansas, which occurred on August 27, 1940. All of the defendants answered denying liability. During the progress of the trial in circuit court, on May 8, 1942, appellants took a non-suit as to R. A. Young & Sons Coal Company, R. A. Young, Sr., and H. W. Young. The trial proceeded as to the other defendants and the jury returned a verdict in favor of plaintiffs and against the Bates Coal & Mining Company only for the aggregate sum of $13,500. The •Bates Coal & Mining Company appealed from the judgment entered on this verdict to this court, where the judgment was affirmed. (See Bates Coal & Mining Co. v. Mannon, 205 Ark. 215, 168 S. W. 2d 408.)
Oil May 12, 1943, appellants (plaintiffs in the original action) instituted the instant suit in the chancery court of Sebastian county against appellee, R. A. Young & Sons Coal Company. Their complaint, omitting the caption, is as follows:
“The plaintiffs bring this action against The R. A. Young & Sons Coal Company, a corporation, defendant, to have it adjudged to be the same, single identity as The Bates Coal & Mining Company, a corporation. As grounds therefor the plaintiffs say that about........................, the Young Company was engaged in the business of operating coal mines and transacting similar business. This was a very hazardous business. From the operation thereof, liabilities of many thousands of dollars were likely to be created from time to time for injuries done to employees.
“The R. A. Young & Sons Coal Company at said times devised a scheme and plan by which it could operate mines and transact business and obtain the profits arising therefrom, but evade the payment of such liabilities. In order to do so it organized a separate corporation in form, designated as The Bates Coal & Mining Company. It gave to it only a nominal capital of $300. It made its own stockholders the stockholders of The Bates Coal & Mining Company, in the same proportion. It made its own officers and directors the officers and directors of said company being organized, giving to them the same power and authority in The Bates Coal & Mining Company as they had in the R. A. Young & Sons Coal Company. Thereupon it placed The Bates Coal & Mining Company in its own offices, with its own officers acting as similar officers for The Bates Coal & Mining Company, conducting all business. It gave to The Bates Coal & Mining Company so small a capital that it could not operate its business successfully.
“Pursuant to said plan it furnished money to The 'Bates Coal & Mining Company for operating purposes, and always kept mortgages upon all the new company’s property given to it as security. This was a part of the scheme to keep all the property mortgaged so that “its creditors could not collect.
“Pursuant to said plan, The R. A. Young & Sons Coal Company, and its stockholders and officers at all times kept drawn out of and from The Bates Coal & Mining Company all profits which it made, so as to keep said Bates Coal & Mining Company at all times in a near insolvent condition. Thus operating, The R. A. Young & Sons Coal Company created a liability in tort in favor of the plaintiffs herein. On-said-account, the said plaintiffs brought suit and obtained judgment against The Bates Coal & Mining Company in the circuit court of Scott county, Arkansas, in the sum of $13,500. Said action was a consolidated action and judgment for the aforesaid amount was given in the sum of $1,500 to each of the said plaintiffs.
“The plaintiffs say that the said Bates Coal & Mining Company is a mere instrumentality and adjunct to The B. A. Young & Sons Company, a corporation, and while same are separate in form, they in fact together constitute one single entity.
“The plaintiffs say that The Bates Coal & Mining Company, treated as a separate institution, has no property on which said judgment or any part thereof can be collected. Plaintiffs ’ say that the B. A. Young & Sons Coal Company, a corporation, defendant, has property subject to execution, and if held liable for said judgment, the same can be collected by the plaintiffs.
“The plaintiffs say that they have no- adequate remedy at law and can enforce the collection of said judgment only by the decree of this court holding said B. A. Young & Sons Coal Company and the said Bates Coal & Mining Company to be identical entities, and that B. A. Young & Sons Coal Company, a corporation, is liable for the payment of said judgment.
“Wherefore, plaintiffs come into this court of equity for relief.
“Plaintiffs pray the judgment and decree of this court to the effect that the B. A. Young & Sons Coal Company, a corporation, and The Bates Coal & Mining Company, a corporation, are in fact one single entity and that the B. A. Young & Sons Coal Company, a corporation, is liable for the payment of said judgment.
, “Plaintiffs pray for all general and special relief as to this court of equity may seem proper, including all costs in this action. ’ ’
Appellee filed motion to dismiss the complaint and from the,decree of the lower court sustaining this motion and dismissing the complaint this appeal is prosecuted.
While it was alleged in the complaint in this case that appellee was in fact operating the mine through another corporate entity, the complaint cannot be sustained as one setting up a cause of action in tort against appellee. In the first place, this suit was filed in chancery court and that court did not have jurisdiction of the subject-matter, which was cognizable only in a court of law. Furthermore, the complaint does not contain sufficient allegations to set up a charge of negligence against appellee. Finally an action for wrongful death must be brought within two years after such death occurs. Section 1278 of Pope’s Digest. The deaths involved here occurred on August 27,1940. Non-suit in the action at law against appellee was taken on May 8,1942. .'This suit was brought on May 12, 1943; so that, as a tort action, it was barred, whether it was a new suit or a renewal of the one already brought and dismissed.
This was not a suit brought under’the provisions of the statute (§§ 2198, 2199 and 2200 of Pope’s Digest) to wind up an insolvent corporation and distribute its assets. The only request for specific relief in the complaint was a prayer that the court decree appellee and The Bates Coal & Mining 'Company to be a single entity, and that appellee be declared liable for the payment of appellants’ judgment. Treated as a creditors ’ bill or a suit to set aside a fraudulent transfer of assets, the allegations of the complaint are insufficient to charge appellee with liability for the amount of the judgment in favor of appellants.
There is no allegation in the complaint to the effect that appellee had wrongfully converted to its own use any specific property or assets belonging to The Bates Coal & Mining Company. In fact, it is inferable from the complaint that this was not done, because it is alleged in the complaint that The Bates Coal & Mining Company had only a nominal capital, and never had any substantial assets. Nor is the amount or value of any assets of The Bates Coal & Mining Company converted to its own use by appellee anywhere averred in the complaint.
One corporation has a right to transfer its assets to another corporation where it is not done under such cir cumstances as to make tlie latter a trustee for tlie creditors of tlie transferring corporation.
In tlie case of Spear Mining Company v. Shinn, 93 Ark. 346, 124 S. W. 1045, we said: “The mere transfer of the assets of one coi’poration to another does not constitute a legal identity between them; and if one corporation becomes the bona ficle owner in a lawful mode of the assets or of aiiy property of another corporation, it does not thereby become liable for the debts of the latter corporation. Memphis Water Co. v. Magens & Co., 15 Lea 37; Tawas, etc., Rd. Co. v. Iosco, Circiut Judge, 44 Mich. 479, 7 N. W. 65; Bruffet v. Great Western Rd. Co., 25 Ill. 353; 10 Cyc. 287; Worthen v. Griffith, 59 Ark. 562, 28 S. W. 286, 43 Am. St. Rep. 50.”
The allegations that stockholders and officers of both corporations were the same is not sufficient to charge appellee with liability for tlie debts of The Bates Coal & Mining Company.
All corporations, regardless of the fact that the holders of stock and the officers of the corporation are identical, are separate and distinct legal entities; and it follows that, in the absence of facts on which liability can be predicated, one such corporation is not liable for the debts of another. “The fact that the officers of one corporation are also officers of another does not make the corporations the same, nor the acts of one the acts of the other.” 19 C. J. S., “Corporations,” p. 166, § 789. “The fact that some of the stockholders in one company had also stock in each of the other companies, and the fact that the general managers and officers of one company were also general managers and officers of another company, did not make these companies the same corporation, nor the acts of one the acts of the other.” Fort Smith Light & Traction Company v. Kelley, 94 Ark. 461, 127 S. W. 975.
This court, in the case of Lange v. Burke, 69 Ark. 85, 61 S. W. 165, held (Headnote): “The facts that two corporations are practically under the control of the same persons, who are the owners of a large majority of the stock, that the two corporations have intimate business relations, and that they employ the same bookkeeper, each corporation paying one-half of his salary, do not prove that the two corporations are in fact one and the same. . . .”
In the case of G. W. Jones Lumber Co. v. Wisarkana Lumber Company, 125 Ark. 65, 187 S. W. 1068, Chief Justice McCulloch quoted with approval from Joyce on Actions By and Against Corporations 226): “ ‘The fact that the stockholders of two separately chartered corporations are identical, that one owns shares in another, and that they have mutual dealings, will not, as a general rule, merge them into one corporation. . . . It is an elementary and fundamental principle that a corporation is an entity separate and distinct from its stockholders and from other corporations with which it may be connected’.”
The essence of the complaint in this case is that appellee was in reality operating the coal mine at the time of the explosion, and is, therefore, liable in damages for the deaths caused by this explosion. This being true, there was a liability enforceable in an action at law. Appellants instituted such action against appellee in the circuit court of Scott county, but took a non-suit therein, and failed to bring a new suit within the one year period allowed after non-suit, or within two years from the time their cause of action arose.
The complaint in the instant case did not state facts sufficient to constitute a cause of action within the jurisdiction of the chancery court, and the decree of the lower court dismissing it must be affirmed. | [
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Robins, J.
Appellant prosecutes this appeal to reverse a judgment of the lower court in favor of appellee for $25 damages alleged to have been sustained by appellee on account of the spoiling of appellee’s meat while it was in appellant’s care.
Appellant operates, in connection with its ice plant at Benton, Arkansas, a cold Storage plant wherein it receives and stores for hire perishable goods. Appellee purchased from Mr. Ross McDonald a hog which had just been butchered. One of the hams was delivered to appellee at his restaurant. Appellee directed Mr. McDonald to store the remainder of the hog for him at appellant’s plant. Mr. McDonald took the meat, which had been butchered about two hours before, and delivered it, in an open box, to appellant. The meat had not been salted. After the pork had remained in appellant’s plant some days appellant notified appellee to come and get it, and, on appellee ’s failure to do so, about five or six days thereafter, sent the meat to appellee. When the meat was delivered to appellee it was unfit for use. The proof did not show definitely the cause of the meat spoiling, but witnesses testified that fresh meat packed in a box without being cooled would sour, even if placed in a cold storage plant.
Mr. McDonald, who carried the box of meat and placed it in the cold storage plant for appellee testified that he was raised 'in the country and had had some experience in killing hogs. He said: “I don’t think I would kill a hog and put it in a box and let it set seventeen days without any salt. I imagine it would ruin. I would think most anybody that ever handled any meat would know that.”
It was not claimed by appellee that appellant failed to maintain a proper temperature in the storage room or that appellant mishandled the meat in any way. There was no testimony tending to establish the existence of a duty on the part of appellant, created by contract, to examine the meat, or to salt it, or to change the manner in which it was packed, nor was it shown that appellant ordinarily made any investigation as to the condition, at the time of delivery to it, of articles stored with it. The manager of appellant’s plant testified without contradiction that customers brought meat and vegetables in boxes, cartons and packages and that these articles were stored as they were brought in without any inspection. The only ground of negligence asserted in the lower court and submitted to the jury was the alleged negligence of appellant in accepting the meat in such condition that appellant knew or should have known that it would spoil.
Assuming, but not deciding, that the evidence was sufficient to justify a finding of negligence on the part of appellant in accepting for storage recently butchered unsalted pork packed in an open box, the evidence was conclusive that Mr. McDonald, appellee’s agent in delivering the meat to appellant for storage, knew at least as much about the condition of the meat, the manner in which it was packed and the probable result of it being stored in that condition as appellant knew or could have, known.
Negligence of a bailor contributing to injury of stored goods is ordinarily a bar to an action by the bailor against the bailee to recover for such damage. “The general rules governing contributory negligence apply in cases of bailment to a warehouseman, and, in accordance therewith, if the negligence of the bailor or ■his servants contributes to loss or injury of stored goods, the warehouseman is not liable. . . .” 67 C. J. 520. “The contributory negligence of the depositor is gen erally a bar to the recovery of damages from a warehouseman who has been guilty of negligence in the care of stored property.” 27 R. C. L. 990. In the case of Holt Ice & Cold Storage Co. v. Arthur Jordan Co., 25 Ind. App. 314, 57 N. E. 575, it was held that if the bailor, at the time of the storage, knows the circumstances under which property would be stored'and knows that same would be injured thereby, there could be no recovery. To the same effect was the ruling of the Supreme Court of Kansas in the case of Parker v. Union Ice & Salt Co., 68 Am. St. Rep. 383, 59 Kan. 626, 54 Pac. 672, in which it was said: “A bailor, who knows the unfitness of the place of storage of goods provided by his bailee, or who has equal opportunities with the. bailee of knowing it, who sees and inspects the place of storage, and who, there being no -latent defects in it, passes judgment upon it as a fit place for his purposes, will be deemed equally at fault with the bailee if damage result to his goods.” This was quoted and approved in the case of Ray v. Alexandria Ice & Cold Storage Co., Inc., 166 La. 1091, 118 So. 323. Other cases exemplifying this rule are: Winn v. American Express Co., 159 Ia. 369, 140 N. W. 427, 44 L. R. A., N. S. 662; Betts v. Farmers Loan & Trust Co., 21 Wis. 80, 91 Am. Rec. 460.
Since the agent of appellee, who placed the meat in storage for appellee, admitted that he knew that fresh, unsalted meat, packed as appellee’s meat was, would spoil, we conclude that, even if appellant was guilty of negligence in accepting the meat for storage, appellee is barred by the negligence of his agent in delivering the meat for storage improperly packed,- not cooled and not salted.
. The lower court should have sustained appellant’s motion for peremptory instruction in its favor, and, for its error in not doing so, the judgment of the lower court ' is reversed, and the cause having been fully developed, same is dismissed. | [
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Holt, J.
July 27, 1943, appellant sued appellee to cancel a tax deed issued to appellee by the county clerk on February 8, 1939, as a result of a collector’s sale on November 2,1936, for taxes for 1935. The land involved is described as “NE% of tlie NE!4 of section 17, Twshp. 2 S., R. 13 W., containing 38.37 acres, more or less” in Saline county, Arkansas.
Appellant alleged that it was the owner of the land, and the clerk’s tax deed was void for certain reasons, among them being that the clerk of Saline county failed to record the delinquent list of lands as returned by the collector for the year 1935, and failed to make the certification of the publication of the delinquent list before the day fixed for the sale of said land. Appellee, in its answer, alleged that it purchased the land at a tax collector’s sale in 1936 for the 1935 taxes, in the amount of $4.83, and was issued á deed by the county clerk, February 8, 1939, pleaded the two-year statute of limitations as a bar to appellant’s suit and that appellant was further barred from maintaining the action because it had failed to pay the 1935 tax assessed against said land. Upon a trial, the court found the issues in favor of appellee, and from the decree comes this appeal.
The cause was tried upon an agreed statement of facts, the essential parts of which are set out in appellee’s brief as follows: “That appellant claimed title to said land under deed from Marion Wasson, bank commissioner, in charge of the bank at Bauxite, dated September 19,1934, and that all taxes prior to the year 1935 had been paid by appellant or those from whom it took title; that appellant (plaintiff) did not pay the taxes-assessed against said land for the year 1935, which taxes were due and payable in 1936; that said land was sold to appellee at the county tax collector’s sale, held in 1936 at the time and place provided by law, for nonpayment of the taxes for the year 1935 which were due in 1936, and the land not having been redeemed the county clerk executed a deed to appellee, whicli deed is dated February 8, 1939, and is recorded in deed record book 31, at page 427 of the deed records of Saline county, Arkansas, and said deed and record thereof was introduced in evidence, and that appellee claimed title to said land under said deed; that appellant paid the taxes against said land for the year 1936 due in 1937, as shown by tax receipt No. 2636, dated April 24, 1937; that appellee also paid the taxes for said year as shown by tax receipt No. 2465, dated April 19, 1937.” Appellant paid the taxes for 1938,1939 and 1940. Appellee paid the taxes for 1937, 1941 and 1942.
He further alleged “That appellant wrote a letter to appellee offering to refund all taxes paid by it, and letter of reply by appellee to appellant, dated April 17, 1942, advising appellant that the taxes for 1935 payable in 1936 were not paid and the land was sold to appellee for the taxes on November 2, 1936, and the land not having-been redeemed during- the period permitted by law the clerk on February 8, 1939, issued to appellee a deed, aild offering to refund to appellant the taxes paid since said forfeiture; that the tax sale of said land was held oh November 2, 1936, and that the certification of the publication of the delinquent list of taxes in Saline county by the county clerk of said county was dated November 2, 1936, as shown by the testimony of the present clerk of Saline county, who was called as a witness by appellant and by whom appellant introduced said record contained in the'permanent records of Saline county, Arkansas ; that appellee then offered to prove by witness Leo Herzfeld, ex-county clerk of Saline county, who made the certification of the publication of the delinquent list of taxes and record thereof in the year 1936, that the certification of the publication of said delinquent list of taxes was actually made several days prior to November 2, 2936, the date of sale, even though the records show it was made on November 2, 1936, and that he (the clerk) thought it was necessary to date it the date of sale in order to be valid. "Which testimony was offered by appellee and was refused by the court, to which action of the court the appellee saved its exceptions.”
It appears that the clerk’s certificate of publication of the notice of sale was not made prior to the sale of the land in question, but was made on the date of sale. This invalidated the sale.
In Townsend v. Penrose, 84 Ark. 316, 105 S. W. 588, this court said: ‘ ‘ The clerk failed to keep a record of the tax sales in compliance with the statute, Kirby’s Digest, § 7092; Quertermous v. Walls, 70 Ark. 326, 67 S. W. 1014. The clerk also failed to make and certify a record, before the day of sale, of the list of delinquent lands and notice of sale as required by statute. Kirby’s Digest, § 7086 (now § 13848 of Pope’s Digest); Logan v. Eastern Ark. Land Co., 68 Ark. 248, 57 S. W. 798; Hunt v. Gardner, 74 Ark. 583, 86 S. W. 426. Either of these defects in the proceedings is sufficient to avoid the sale. ’ ’
In the Logan case, supra, this court said: ‘ ‘ The statute prescribes that the list of lands delinquent for nonpayment of taxes shall be published for two weeks between certain specified dates, with a notice of the intent to sell them. Mansf. Dig., § 5762. It requires the clerk of the county court to record the list and notice of sale in a book to be kept in his office for that purpose, with a certificate showing in what newspaper it was published, for what length of time, and the date of publication. Ib., § 5763 (now § 13848, Pope’s Digest). The statute denominates this entry a record; it requires that it shall be made by the clerk before the sale, and provides that it shall be evidence of the facts it recites. Ib., § 5763 (now § 13848, Pope’s Digest). . . The court, in effect, held in Martin v. Allard that the provision of the statute requiring the clerk to record the certificate before the day of sale was mandatory. . . and the failure to comply with it becomes a defense to him against the sale, of which he cannot be deprived by any deed of the county clerk to the purchaser at the tax sale, as held in Cooper v. Freeman Lumber Company, 61 Ark. 36, 31 S. W. 981, 32 S. W. 494.” See, also, the very recent case of Cecil v. Tisher and Friend, 206 Ark. 962, 178 S. W. 2d 655.
It being definitely settled by the cases, supra, that the failure of the county clerk to append to the recorded list of delinquent land, the certificate required by § 13848 of Pope’s Digest, prior to the date of sale, invalidates the sale, the question remains as to the application of § 13874 of Pope’s Digest to the facts in this case. That section reads as follows: “In all controversies and suits involving title to real property, claimed and held under and by virtue of a deed executed substantially as aforesaid by the clerk of the county court, the party claiming title' adverse to that conveyed by such deed shall be required to prove, in order to defeat the said title, either that the said real property was not subject to taxation for the year (or years) named in the deed, or that the taxes had been paid before the sale, that the property had been redeemed from the sale according to the provisions of this act, and that such redemption was had or made for the use and benefit of persons having the right of redemption, under the laws of this state; or that there had been an entire omission to list or assess the property, or to levy taxes, or to give notice of the sale, or to sell the property. But no person shall be permitted to question the title acquired by a deed of the clerk of the county court, without first showing that he, or the person under whom he claims title to the property, had title thereto at the time of the sale, or that title was obtained from the United States or this state after the sale, and that all taxes due upon the property have been paid by such person, or the person under whom he claims title as aforesaid. Provided, in any case where a person had paid his taxes, and, through mistake (or otherwise) by the collector, the land upon which the taxes were paid was afterward sold, the deed of the clerk of the county court shall not convey the title. Provided, further, in all cases where the owner of lands sold for taxes shall resist the-validity of such tax title, such owner may prove fraud committed by the officer selling said lands or in the purchaser, to defeat the same, and, if fraud is so established, such sale and title shall be void. Id., § 146.”
It is stipulated that the original owner has not continuously paid the taxes on the land since its forfeiture and sale for the 1935 taxes in 1936. Since that time, the parties have alternated in the payment of the taxes, and the decree, from which this appeal comes, is based upon the finding of the court below that this § 13874 precluded appellant from questioning the tax sale for the reason that he had not paid the taxes subsequently.
Our holding in the case of Cooper v. Foreman Lumber Company, 61 Ark. 36, 31 S. W. 981, 32 S. W. 494, is opposed to this view. There this court construed § 6625 of Sandel & Hill’s Digest, now appearing as § 13874 Of Pope’s Digest. It is there said: “Under the decisions of this court in Cairo & Fulton R. Co. v. Parks, 32 Ark. 131, and in Radcliffe v. Scruggs, 46 Ark. 96, a substantial ‘meritorious defense’ against a claimant under a purchase at tax sale cannot be denied or cut off by the legislature. In Radcliffe v. Scruggs, the court, by Mr. Justice •Smith, said: ‘And by “meritorious defense” we mean any act of omission of the revenue officers in violation of law and prejudicial to his (the former owner’s) rights or interest, as well as the jurisdictional and fundamental defects which affect the power to levy the tax or sell for the nonpayment. . . Our legislature and'previous decisions have always distinguished class of defects (mere irregularities or informalities) which have no tendency to injuriously affect the taxpayer, and substantial defects, such as go to the jurisdiction of the levying court to levy a particular tax or of the power of the officer to sell for nonpayment or the omission of any legal duty, which is calculated to prejudice the landowner.’ ”
As indicated, under this holding, § 13874 did not, and could not, cut off appellant’s meritorious defense to the tax sale in question.
Following the Cooper case, supra, it was held in Logan v. Eastern Ark. Land Co., 68 Ark. 248, 57 S. W. 798, that the failure of the county clerk to append to the recorded list of delinquent lands the certificate required by Mansf. Digest, § 5763 (now § 13848, Pope’s Digest), is a meritorious defense.
Appellee also argues that appellant’s suit was barred by the two-year limitations statute, § 13883 of Pope’s Digest. This contention we think to be untenable for the reasons set out in Cecil v. Tisher and Friend, supra. There is no claim here by appellee, the holder of the tax deed, of actual adverse possession of the land in question for two years. (§ 8925, Pope’s Digest.)
It appearing from what we have said that appellant has shown a substantial meritorious defense against appellee’s claim, growing out of his (appellee’s) purchase at the tax sale, which cannot be denied or cut off by the legislature, we hold that the trial court erred in denying appellant the relief prayed. Accordingly, the decree is reversed and the cause remanded with directions to proceed in conformity with this opinion. | [
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Knox, J.
Tbis action results from a collision between a railroad train and a motor truck loaded witb lumber, wbicb collision occurred at Stillwell Avenue crossing in tbe city of DeQueen, about 11 a.m., June 22, 1943. Appellee, Melvin Mickel, tbe driver of tbe truck, instituted action against appellant, Tbe Kansas City Southern Railway Company, to recover damages for personal injury allegedly sustained by bim, and be and bis mortgagee, Horatio State Bank, instituted action to recover alleged damage to tbe truck. Trial resulted in verdicts against appellant, awarding appellees Mickel and tbe bank $500 as damage to tbe truck, and Mickel $250 on account of personal injury. Judgments were entered in accordance witb tbe verdicts, and appellant railway company prosecutes tbis appeal, urging as tbe sole ground for reversal lack of evidence of negligence on its part, resulting in or contributing to tbe accident. Appellant contends tbat because of appellees’ failure to refer to any evidence in the record tending to support any allegation of negligence on the part of appellant they impliedly, at least, conceded that proof of negligence by appellant, its servants and employees is lacking, and that appellees are forced to rely for recovery upon failure by appellant to show that it discharged the duty imposed on it under the lookout statute.
Appellees argue that since the burden of proof is placed on appellant by § 11144 of Pope’s Digest to show that all persons running the train maintained a proper lookout and that since it failed to discharge such burden the trial court correctly refused appellant’s request for a directed verdict, and the judgments should be affirmed.
Appellees’ contention rests upon the testimony of engineer Dunnegan, who testified that the train involved in the collision was a passenger train composed of seven passenger coaches and two baggage coaches; that the power used to propel the train was supplied by “two Diesel engines” (connected) “hack to hack” that he (Dunnegan) “was operating the engine in the control room . . .” Appellees argue that the fact that the train was being propelled by two engines of' necessity suggests that two engine crews were actually engaged in running the train, and that since only one engine crew (Dunnegan and his fireman) testified that they were keeping a proper lookout, and that no member of the engine crew on the other engine testified appellant failed to discharge the burden of showing that all persons running the train were keeping a proper lookout.
It is true the engineer (Dunnegan) testified that the train was being propelled by “two Diesel engines,” which suggests the idea of two crews, and had there been two steam locomotives operated together in the fashion frequently referred to as a “double header” there doubtless would have been two engine crews engaged in running the train. Here, however, the train was being propelled not by two steam locomotives hut by two Diesel engines, and the engineer testified “I was operating the engine in the control room.” Diesel engines are new, and both this and the trial court doubtless would have derived benefit from a more complete explanation óf how such engines are controlled. It is true, that engineer Dunnegan made use of the singular and referred to the “engine,” implying that he was operating only one of the two engines which supplied the locomotive power, but when we examine his complete statement — “I was operating the engine in the control room,” we are convinced that notwithstanding the fact that he used the word “engine,” he was referring to the entire power plant, which on that morning consisted of two units, referred to by him as an engine. He was in effect testifying that he was able to and did control this power plant (both engines) from the control room. With no other evidence in the record, the jury would have been justified in drawing such an inference from the testimony, and without other testimony on the question it must be admitted that appellant discharged the burden of proof showing that its agents maintained a proper lookout in view of the fact that engineer Dunnegan and his fireman had each testified without contradiction that they had kept a constant lookout.
Other acts of negligence are alleged, but the record fails to disclose evidence which would sustáin any of them. Appellees in their brief call our attention to no fact reflected by the record which apparently required submission of this case to the jury other than the supposed failure by appellant to discharge the burden of proof to show that a proper lookout was kept. We have heretofore fully discussed this question, and find no merit in appellees’ contention.
In the case of St. L.-San Francisco Ry. Co. v. Williams, 180 Ark. 413, 21 S. W. 2d 611, it was held that where an engineer testified he kept a constant lookout, and there was no testimony to the contrary, the burden of proof imposed by the statute against the railroad company was thereby discharged. Such rule is controlling in the case at bar. Both engineer Dunnegan and his fireman testified that they maintained a constant lookout. Their testimony, or the testimony of engineer Dunnegan alone, uncontradicted, was sufficient to discharge the burden with respect to proof imposed by the statute. Furthermore, the evidence shows that both the truck and the train were moving very slowly, about 12 or 15 miles per hour. The truck had shifted into second gear about 150 feet from the track. The owner and driver of the truck crossed at'the same crossing one or more times each day. The engine crew saw him when he was some distance from the track, approaching the crossing very slowly. They assumed, as they had a right to do, that he would stop before placing himself and truck in a position of danger. Crossett Lbr. Co. v. Carter, 201 Ark. 432, 144 S. W. 2d 1074; Mo. Pac. R. Co. v. Lemons, 198 Ark. 1, 27 S. W. 2d 120; Mo. Pac. R. Co. v. Davis, 197 Ark. 830, 125 S. W. 2d 785.
We are convinced that the trial court should have directed a verdict in favor of appellant, and for its error in failing so to do the judgment is reversed and the cause dismissed. | [
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Griffin Smith, Chief Justice.
The question is whether priority rules promulgated by War Production Board prohibited Vernon H. Duncan from supplying ten thousand feet of pine lumber and.fifteen hundred feet of sycamore flooring to B. A. Cook.
June 29,1942, Cook’s timber deed covering 305 acres was delivered to Duncan. Time limit for cutting and removing was one year. Concurrently Duncan agreed, in writing, to furnish the pine lumber not later than October 15, 1942, and the sycamore on or before December 1 of the same year.
August 21, 1942, War Production Board issued its order restricting sale of pine lumber. Assuming that compliance with his contract with Cook would subject him to penalties provided by Congress, Duncan declined to perform.
June 30, 1943 — one day after Duncan’s right to remove timber from the acreage had expired — Cook procured an injunction, terminating Duncan’s activities on the property. In a cross complaint the defendant alleged damages.
We think the Chancellor correctly held that relationship of the 'parties in their joint dealings with land and timber was such as to exclude the pine from the government’s prohibition. While Cook’s deed conveyed title, Duncan’s contemporaneous agreement that the designated finished product should be cut from the timber so conveyed, and delivered in the converted form as a part of the purchase price, was (as between the parties) a pledge that the subject matter would be subjected to the use in view.
A reasonable construction is that fulfillment of the contract would not have been a sale within the meaning of War Production Board’s regulation; hence, Duncan was not excused in his failure.
Affirmed.
Restrictions did not apply to sycamore'. | [
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Smith, J.
C. C. Smart owned the N%, NE%, NE%, of section 14, T. 15 S., range 20 W., a 20-acre tract of land, except 7 acres on the west side of this tract, but he and one Corbin Yelvington owned, each, an undivided one-half interest in the minerals in this 7-acre tract, which is described as follows: “Beginning at the NW corner of said NE% of the NE% and running thence east 25% rods; thence in a southeasterly direction approximately 20 rods to the center of the N% of the NE% of the NE% of 14-15-20; thence west 40 rods to the west line of said forty; thence 40 rods to the point of beginning. ’ ’
On February 3, 1941, Smart executed an oil and gas lease to W. C. O’Ferrall for the development of oil and gas in, on and under this 20-acre tract. This lease contained no reference to Yelvington’s interest and did not except it, but Smart was the owner of the remainder.
O’Ferrall was advised of the interest of Yelvington, and on April 2, 1941, he and one Turner, who was interested with O ’Ferrall in the lease, executed an assignment of the Smart lease to Fitzwater and McClerkin, which described the land covered by the assignment of the lease as follows: “The N% of the NE% of the NE% of section 14, T. 15 S., R. 20 W., Columbia county, Arkansas, containing twunty (20) acres of land, more or less, but this does not include a small tract of land three and one-half (3%) acres in extent, located in the northwest (NW) corner of said tract, which is not covered by the lease now owned by Parties of the First Part.”
This tract referred to as being 3y2 acres in extent, should properly have been described as an undivided one-half interest in 7 acres, but we think it clear that O’Ferrall and Turner were assigning their entire interest in this 20-acre tract, but were not assigning the interest which they did not own which was Yelvington’s undivided one-half interest in the 7 acres on the west side of the 20-acre tract, which was referred to in this assignment as ‘iy% acres.
b’Ferrall, acting for Fitzwater and McClerkin, his assignees, applied to and obtained from the State Oil and Gas Commission, on April '3, 1941, a permit to drill on land described as follows: “Number of Acres 20 Location 330' out of NE corner Sec. 14, Twp. 15 Range 20, .............................. County, Stephens Field 4 Miles .............................. direction from Stephens, nearest post office or town.”
The well was completed April 19, 1941. Thereafter on July 23, 1941, application was made to the State Oil and Gas Commission for a corrected permit which was designated as “Amendment of and substitution for application No. 7678,” which being the number of the application dated April 3, 1941, and the July application bore the same number and was granted as a corrected permit.
The secretary of the Oil and Gas Commission testified that both permits were issued on a 10-acre spacing, it being assumed that the location described as 330 feet out of the northeast corner of the section would place the well in the center of the NE%, NE^, NE14. It will be observed that a well could not be drilled on land here involved within 330 feet of the northeast corner of the section, without being located in the NEi/4, NE14, NE%.
The well was completed April 19, 1941, which was before the issuance of the first permit, but after the issuance of the second, and it proved to be a producer. The cost of drilling was $15,231.23 and the operating and maintenance cost was $4,929.26. These figures are not questioned, and Yelvington paid not a cent thereof, and was not asked to do so. The oil from the well was sold to the Stephens Refining Company.
After production bogan, Yelvington asserted an interest in the proceeds of the sale of the oil, and the Stephens Refining Company reserved .payments equalling the percentage claimed by Yelvington, whereupon Fitzwater and McClerkin brought this suit to have the rights and interests of the parties adjudged. ■
The answer filed by Yelvington alleged that the permit to drill covered the NE%, NE^, and that the well was drilled on that land, in which he owned an undivided one-half mineral interest in 7 acres thereof, his land lying and being in the NW1/^ NE14, NE%, which is a part of the N%, NE%> NE%.
The court found the fact to be that Yelvington had no interest in the oil, and dismissed his answer as being without equity, and from that decree is this appeal.
Yelvington sought to recover upon the theory that he was a tenant in common with Smart and as such owned an interest in the land on which the well had been drilled, but the court found, and we think correctly so, against that contention.
McClerkin and Fitzwater are producing oil, 'under and subject to the provisions of the original Smart lease, and the assignment thereof made to them by O’Ferrall and Turner. Yelvington owns no interest either as a tenant in common, or otherwise, in and to the NE%, NE14, NE%, or the oil and gas and minerals thereunder. Whatever interest he owns is confined to the 7 acres above described, located in the NW%, NE%, NE14.
I11 the opinion delivered by the chancellor, it was stated that the case presented no question of drainage from the land Yelvington owns an interest in, and that a recovery was not sought upon that ground. .O’Ferrall, who has an overriding interest in all the N%, NE%, NE14, except the 3% acres owned by Yelvington in the NW14, NE14, NEi/4, testified that it was his intention to have a well drilled on the NWx/4> NE14, NE%, which is the 10-acre tract in which is Yelvington’s interest, but that this could not be done until after the war on account of the government’s restrictions on the use of essential steel and piping. This drilling on the NW[4, NK1/^, NR 14. may inquire an integration order under § 15 of Act 105 of the Acts of 1939, on account of Yelvington’s interest in that laud,' but this is a question not here involved. Suffice it to say, that, as found by the court below, Yelvington has no interest in the 10-acre tract described as the NE%, NE14, NE%, and the decree dismissing his answer as being without equity must be affirmed, and no other party has appealed.
Knox, J., disqualified and not participating. ’ | [
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McHaney, J.
Appellant brought this action, as a class suit, for himself and all others similarly situated, against appellees, who are the administrator, the widow and the daughter and only heir at law of John L. Ingram, deceased, and R. E. Meinert, trustee, to enjoin them from interfering with appellant and others in the use and enjoyment of Cook’s Lake for hunting, fishing and other similar lawful purposes.
The complaint alleged that, at the time of his death, John L. Ingram was the owner of a large body of land in the White River bottoms, describing it, within the boundaries of which is a lake known as Cook’s Lake;, that said lake was meandered by the governmental survey as Cook’s Lake; that said lake is a public one belonging to the state, has never-been enclosed with a fence, and the public has always used -said lake for hunting and fishing; that it has no connection with White River, except in high stages the water from the river overflows into and passes through said lake; that on September 25, 1943, the appellees, administrator, widow and heir, with court approval, entered into a lease agreement with appellee, Meinert, trustee, by which the surface of said tract of land, said lake and the land covered by same were granted to the lessee; that is, it granted to him the exclusive right to the possession of said land and said lake and the' right to exclude appellant and the public which he proposes to do and is now in the process of enclosing said tract of land with a fence and posting-same ; that appellant and others have recently been prevented from using said lake by Meinert and his agents, who will continue to do so unless enjoined; that said lake is a navigable one; and that it and the land under its waters belong- to the state. Appellees answered admitting the ownership of said lands as alleged, the lease agreement, and denying many allegations and particularly denying that said lake is navigable or that it belongs to the state, and asserting ownership in fee in the widow and heirs of said Ingram. There was a cross-complaint against appellants praying an injunction restraining appellant and others from interfering with the enclosure by appellees of said lands and from hunting, fishing or otherwise.trespassing on said land or said lake.
Trial resulted in a finding of facts in part as follows: “That Cook’s Lake, described in the plaintiff’s complaint, lies wholly within the boundaries of the land specifically described in the plaintiff’s complaint; that Cook’s Lake is not in any way connected with White River; that the lake existed and was located approximately as it now is located at the time the original sufvey of the land surrounding it was made by the United States Government, and that the official plat of said survey -by the United States Government reflects that the engineers making said survey meandered the borders of Cook’s Lake and showed said lake upon the official plat of their survey as having been meandered; that Cook’s Lake has never been used for the pnrpose of commercial navigation, and is not susceptible of that use; that the condition of the lake is such that water therefrom cannot practically -be used for the irrigation of rice fields, or for other agricultural purposes; that Cook’s Lake is a swamp and the nature of the water in it is such that it is not reasonably adaptable for use for domestic or municipal purposes; that the lake covers swampy lands in the bottom of White River, all of the lands covered by it being subject to overflow almost annually by the waters of White River; that because of the swampy nature of the land, the banks of the lake and the land in the immediate vicinity of it, with the exception of one small bluff, are not suitable for building residences or pleasure resorts; that because of the swampy nature of the land surrounding the lake and of the lake itself, the waters thereof are not susceptible of use for bathing therein; that Cook’s Lake is two miles from the nearest road and three miles from the nearest improved road, is accessible only by trails through wooded and marsliy land, and that in rainy weather the lake can be reached only afoot, or horseback, or by horse drawn vehicle; and that the only nsefnl purpose that Cook’s Lake can serve, or has heretofore served, is for fishing therein and hunting water fowl thereon. The court finds that Cook’s Lake is not now, nor has it ever been, navigable.
“The court further finds that the defendants in this cause, as the owners of the entire body of land surrounding Cook’s Lake, are the owners of the land underlying said lake, and that the defendants have the right to exclude from- the lake the plaintiff, or any other member of the public whom they desire to exclude from it by enclosing the land on which the lake is situated within a fence, or by any other peaceful manner.”
Based on said findings, the court entered a decree dismissing the complaint for want of equity and this appeal followed.
The undisputed evidence supports the court’s findings. Cook’s Lake lies adjacent to White River on the west side thereof about 16 miles east of Stuttgart, is crescent shaped, with the ends of the lake nearest the river. Following the middle thread of the lake, it is about two and onfe-half miles long, but about three-fourths of a mile between the two ends. The width varies from very narrow at the ends to about 200 yards at the widest place, with a depth of a few inches at the ends to six feet. It starts from nowhere and ends nowhere. No person, except a caretaker or overseer, lives near it and there is no cultivated land nearer than a mile away. It 1ms never been navigated, except by fish, mosquitoes, wildfowl and rowboats, or perhaps with small outboard motors.
Appellant very frankly says: “The sole question involved in this appeal is whether Cook’s Lake is navigable. If Cook’s Lake is not navigable, the appellant admits that John L. Ingram, by virtue of ownership of all of the land surrounding the lake, was the owner of the land lying under the lake and the waters of the lake. If, on the other hand, Cook’s Lake ' is navigable, the land owned by Mr. Ingrain extended only to the high water mark on the banks of Cook’s Lake, and land underlying and the waters of the lake are the property of the state of Arkansas.”
The concession as thus made is well taken, for such is the law, and the fact that said lake was meandered by the government surveyors is merely a circumstance tending to show navigability, but is by no means conclusive of the fact. It was held in Barboro v. Boyle, 119 Ark. 377, 178 S. W. 378, a case upon which appellant bases his case largely if not entirely, that the riparian owner upon a navigable stream takes only to high water mark, the title to the bed of the stream being in the state; but the riparian owner upon a non-navigable stream takes to the center of it.' In that case Horse Shoe Lake was involved. That lake was formerly a part of the Mississippi River, was seven miles, in length, a maximum width of 2,000 feet, with an average depth of 18 feet with some places 35 feet deep, and this court found that it had' never been employed for commercial navigation except “at irregular intervals,” but that it was in fact “susceptible of that use.” Therein lies the distinction between that case and this. Here, Cook’s Lake has not only never been used f®r commercial navigation at any time, but is not susceptible of that use. There are large trees growing in the lake. The water is too shallow for navigation purposes and'its location is such in rainy weather that it is inaccessible, except on foot, on horseback, or with a wagon and team. The nearest all-weather road is three miles away. As said by Judge Iiooic, in Harrison v. Fite, 148 Fed. 781, a case involving the navigability of Big Lake, in Mississippi county, Arkansas, “To meet the test of navigability as understood in the American law a water course should be susceptible of use for purposes of commerce or possess a capacity for valuable flotage in the transportation to market of the products of the country through which it runs. It should be of practical usefulness to the public as a public highway in its natural state and without the aid of artificial means. A theoretical or potential navigability, or one that is temporary, precarious, and unprofitable, is not sufficient. While the navigable quality of water course need not be continuous, yet it should continue long enough to be useful and valuable in transportation; and the fluctuations should come regularly with the seasons, so that the period of navigability may be depended upon. Mere depth of water, without profitable utility will not render a water course navigable in the legal sense, so as to subject it to public servitude, nor will the fact that it is sufficient for pleasure boating or to enable hunters or fishermen to float their skiffs or canoes. To be navigable a water course must have a useful capacity as a public highway of transportation.”
One of our own cases is cited to support the rule stated, Railway Co. v. Brooks, 39 Ark. 403, 43 Am. St. Rep. 277, where a headnote reads: “The true criterion of a navigable stream is the usefulness' of the stream to the population on its banks as a means of carrying off the products of their fields and forests, or bringing to them articles of merchandise. If, in its natural state, without artificial improvements, it may be prudently relied upon and used for that purpose at some seasons of the year, recurring with tolerable regularity, then, in the American sense, it is navigable.” See, also, Ark. Game and Fish Com. v. Storthz, 181 Ark. 1089, 29 S. W. 2d 294.
We conclude that, under any test of navigability of our own or any other court, Cook’s Lake is not navigable and that the decree of the trial court is ■ correct, and should be and is affirmed. | [
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Griffin Smith, Chief Justice.
C. E. White, employed by the Bailway Company, sustained a back injury in 1941. He claimed it was caused by negligence «of a fellow servant, and sued to compensate. Appeal is from a directed verdict for the defendant.
White’s employment required that he move crossties from a nearby stack to a position near the track. His assistant was Asher. They used metal tongs, sharpened lower extremities of which were embedded in the wood when pressure was exerted on either hinged arm. In describing the transaction of which he complained, White conceded that he did not know exactly what happened, but, from the result, Asher must have released his grip on the tongs, allowing the tie to fall. He had previously stated that Asher’s foot slipped in free gravel, and “when it was over” Asher was getting up. The concluding abstracted part of his testimony is a presumption that Asher “must have slipped some way or other; that is what I told my attorney and I am willing to stand on it.”
Asher testified he did not know, until the following day, that White had been injured; nor had he been informed that negligence was claimed or that any act of his was pointed to. Conceding that he could have “slipped,” Asher insisted that he did not fall. The tie, he said, was never lifted off the ground: —“I couldn’t say what particular tie we were handling because White did not say anything about it when he got hurt. He finished a good day’s work.”
Although other acts thought to have been negligent were alleged, none was proved. Therefore the sole question is one of fact: was there substantial evidence to go to the juryl For answer we disregard Asher’s statements and look entirely to White’s version and to any properly presented support for his contention.-
On the "theory that avoidance of the impossible is not the standard of care, consequences of unavoidable occurrences which result in injury are not compensable. Unless some statute having constitutional sanction affords relief, accidents, strictly speaking, are not actionable. A non-offending person may not be compelled to pay for another’s misfortune. The difficulty comes in determining what is an accident, and whether carelessness or indifference of the master was the proximate cause in those instances where some slight precaution or forethought might have controlled the event.
Because the premises where men are at work are ordinarily selected by the master, it is held, in effect, that the employer give consideration to this difference in opportunity, and as to those employes who are strangers to the premises, or whose information is not such as to give them an appreciation of risks equal to that of the master, reasonable inspection, and warnings, are required. On the other hand, where there is constant shifting of position and the task is such that each party to the employment has the same opportunity of examina tion, inspection, and the capacity to appraise the risk, no warning or unusual precaution upon the master’s part is exacted.
Most so-called accidents — -but not all — are traceable, in one aspect or another, to personal -indifference or-negligence.
But even so, before a plaintiff can recover there must have been some departure on the part of the master or his agents, or a fellow servant, from the established standard- — usually that of an ordinarily prudent man. In the case at bar it is not shown that appellee was negligent. Complaint is that loose gravel was allowed to accumulate on the right-of-way over which the tie was taken; but the fact -is that most tracks are ballasted with gravel or crushed stone. There is the inference that if Asher had been exercising due caution he would not have stumbled, and it is argued that the jury should have been permitted to determine whether, in different circumstances, the accident would not have occurred.
When White’s testimony is analyzed he merely asserts that Asher “must have” made an unintentional misstep. He doesn’t know how it happened, or even that it did occur. Conjecture and speculation supply the want of evidence.
Affirmed. | [
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McFaddin, J.
This action was instituted under the Federal Fair Labor Standards Act of 1938. Appellant operates a motor truck line from points in Missouri to and from points in Tennessee, through Blytheville, Arkansas; and appellee was employed by appellant at Blytheville, Arkansas.
Appellee, as plaintiff, filed suit against appellant, as defendant, for alleged wages for overtime, etc., due under the Federal Fair Labor Standards Act of 1938 (See U.S.O.A. Title 29, Chapter 8.) Appellee claimed he received only $24 per week from August, 1942, to February, 1943, and should have received forty cents per hour for the base hours of each week and sixty cents per hour for all overtime. For defense, appellant claimed that any and all services of the appellee were services that were regulated by the Federal Motor Carrier Act (U.S.O.A. Title 49, § 301’ff.), and therefore exempt-from the Fair Labor Standards Act. At the trial the parties stipulated as to the amount the plaintiff should recover, if anything; but any right to recover was sharply contested. There was a jury trial and consequent judgment for plaintiff ; and defendant has brought this appeal, assigning in the motion for new trial, and presenting here, the points herein mentioned.
I. Did the Plaintiff’s Case Come Under the Pair Labor Standards Act or the Motor Carrier Act?
This is a threshold question. If plaintiff’s work was within scope of- the Fair Labor Standards Act then there must be an affirmance in this case in' the absence of error on other points. But if plaintiff’s work came'within the scope of the Motor Carrier Act then the cause at all events must be dismissed.
The Fair Labor Standards Act of 1938 (U.S.C.A. Title 29, § 201 ff.) provides (§ 206 ff.) for a minimum wage and maximum hours and for overtime wage and applies to employees engaged in commerce (as that term is defined in the Act), but contains the exception (in § 213) that the provisions of the Act as to maximum hours should not apply to “any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of § 304 of Title 49 . . . ” This Title 49, § 304 of U.S.C.A. is a part of tlie Motor Carrier Act of 1935, and made it the duty of the Interstate Commerce Commission to regulate common carriers by motor vehicle and to that end empowered the Commission to establish reasonable “requirements with respect to . . . maximum hours of service of employees, and safety of operation and equipment.”
In United States v. American Trucking Associations, 310 U. S. 534, 60 S. Ct. 1059, 87 Law Ed. 1345, the Supreme Court of the United States on May 27, 1940, considered the Pair Labor Standards Act as limited by § 213 (supra), and considered the Federal Motor Carrier Act as limited by § 304 thereof, and considered the powers of the Interstate Commerce Commission to administer the Motor Carrier Act, and held that only those employees of Motor Carriers were governed by the Federal Motor Carrier Act as to “hours of service of employees,” who were “concerned with the safety of operations,” saying, “Our conclusion, in view of the circumstances set out in this opinion, is that the meaning of employees in § 204 (A) (1) and (2) is limited to those employees whose activities affect the safety of operation. The Commission has no jurisdiction to regulate the qualifications of hours of service of any others.” In other words, the Supreme Court of the United .States in effect held that the employees would be governed by the Fair Labor Standards Act unless they .were specifically governed by the Motor Carrier Act and only those whose activities actually affected the safety of operation of Motor Carriers, come under the Motor Carrier Act.
Because of the said opinion of the Supreme Court of the United States the Interstate Commerce Commission in Ex Parte No. MC-2 in the matter of maximum hours of service of Motor Carrier employees, 28 Interstate Commerce Commission Reports, Motor Carrier Cases, p. 125, on March 4, 1941, gave consideration to what particular employees came within the “safety of operations ’ ’ of Motor Carriers and held:
“We have concluded that we should not assert jurisdiction as to employees who spend an unsubstantial part of their time in performing duties which affect the safety of operation of motor vehicles. We therefore conclude that under said section 204 (a) we have power to establish qualifications and maximum hours of service with respect onlyto employees who devote a substantial part of their time to activities which directly affect safety of operation. Our task is thus narrowed to determining which employees of common and contract carriers and of private carriers of property by motor vehicle, eng’aged in interstate or foreign commerce, fall within that category.”
The Interstate Commerce Commission then in a very exhaustive opinion held that (1) mechanics were concerned with the safety of operation, but that other garage workers were not; and (2) that loaders of trucks were concerned with the safety of operation; and (3) that dispatchers “engage in no activities which directly affect the safety of motor vehicles.”
In the case of Overnight Motor Transportation Co. v. Missel, 316 U. S. 572, 62 S. Ct. 1216, 86 L. Ed. 1682, (decided June 8, 1942) the Supreme Court of the United States in Note 20 recognized the aforesaid mentioned opinion of the Interstate Commerce Commission and held that a rate clerk of a motor transportation company was nevertheless entitled to relief under the Fair Labor Standards Act. There are decisions of other Federal Courts after the Overnight Motor Transportation case bearing on the question. Southland Co. v. Bayley, 319 U. S. 44, 63 S. Ct. 917, 87 L. Ed. 1244; McKeown v. Southern California Freight Forwarders, (U. S. Dist. Ct. in California), 49 Fed. Supp. 543 and 52 Fed. Supp. 331; Anuchick v. Transamerican Freight Lines (U. S. Dist. Ct. in Michigan) 46 Fed. Supp. 861; Hutchinson v. William C. Barry, Inc., (U. S. Dist. Ct. in Mass.), 50 Fed. Supp. 292.
We reach the conclusion that appellee is entitled to relief under the Fair Labor Standards Act unless a substantial part of his work was within the scope of the Motor Carrier Act, and that the test of whether he comes under the Motor Carrier Act depends on the particular duties that the plaintiff actually performed; and that it was therefore proper to show the duties the plaintiff actually performed, to see whether a substantial part of his work was under the Motor Carrier Act.
II. The Work Performed by the Plaintiff.
On appeal it is the duty of this court to give the evidence its strongest probative force for appellee. Davis v. Trimble, 76 Ark. 115, 88 S. W. 920; St. Louis, I. M. & S. Ry. Co. v. Coleman, 97 Ark. 438, 135 S. W. 336; Oviatt v. Garretson, 205 Ark. 792, 171 S. W. 2d 287, "West’s Arkansas Digest, “Appeal and Error,” Key No. 1001. With this rule in mind we examine to see if there is substantial evidence to sustain the verdict in appellee’s favor; and that verdict was, in effect, that no substantial part of the plaintiff’s work was under the Motor Carrier Act. The plaintiff testified that he was in full charge of all night duties in the office; and that he (1) checked the trucks in and out, (2) did the clerical work on the way bills, (3) was the night manager, (4) acted as filing clerk, filing all the bills and records that had accumulated each preceding day (sometimes this one activity would require six to eight hours each night), (5) served as the night dispatcher of the various trucks which passed through Blytheville to and from Missouri and Tennessee and intermediate points, (6) billed out the local accumulation of shipments to the six or seven trucks passing through Blytheville each night, (7) checked the mileage on trucks and made written report of same, (8) answered all telephone calls and (9) did anything else at night that the manager would have done in the daytime except to answer the mail and write letters. In addition to all of these nine duties he (10) helped another man in loading and unloading trucks where there was any loading and unloading to do. This work done under “(10)” above would place him under the Motor Carrier Act. Each and all of the other nine duties would place him under the Fair Labor Standards Act. The test, as previously pointed out, was whether the 10th duty constituted a substantial part of the plaintiff’s work;
From enumeration of the various duties it is evident that the plaintiff made a case to go to the jury as to whether the 10th duty constituted a substantial part of the plaintiff’s work; and we therefore hold that the trial court correctly overruled the appellant’s motion for an instructed verdict; and we furthermore hold that there is substantial evidence to support the jury’s verdict that the 10th duty did not constitute a substantial part of the plaintiff’s work. The effect of'the verdict of the jury was to place the plaintiff under the Fair Labor Standards Act rather than the Motor Carrier Act; and we find there was substantial evidence to sustain the verdict.
III. The Instruction.
Finally appellant complains of the instruction that the court gave the jury which instruction reads as follows:
£ £ If you find from a preponderance of the testimony in this case that the plaintiff was placed in charge of the branch office of the defendant in the City of Blytheville, Arkansas; and that in charge of such office the plaintiff actually performed services during such employment as were performed by the manager of said office during the day, and that the work he did in loading and unloading trucks was merely incidental to his employment, your verdict will be for the plaintiff.
££On the other hand, if you find that the main duty of the plaintiff, under his employment by the defendant, was that of loading and unloading trucks; and that he performed some clerical duties merely as an incident of loading and unloading trucks, and that such clerical duties were not a substantial part of his emplojunent, your verdict will be for the defendant.”
We are of the opinion that this instruction clearly presented to the jury the issue involved without any possibilitj7 of misunderstanding. The whole question to be decided by the jury was whether the loading and unloading was a substantial part of the plaintiff’s duties or an unsubstantial part. This .instruction stated that issue in plain words and the jury decided that the loading and unloading was not a substantial part of the plaintiff’s activities and duties.
Before concluding tlie opinion we think it proper to remark that there is not raised on this appeal any question as to the amount of recovery, as that point was stipulated. Furthermore the question was not raised in this case as to whether the burden was on appellant to show appellee excluded from the Fair Labor Standards Act or whether the burden was on appellee to show himself to be entitled to the benefits of the Act; so we are not passing on that point. Neither .was there any issue tendered that the plaintiff did not come within the purview of Interstate Commerce, so we are not passing on that question; and our decision in Couch v. Ward, 205 Ark. 308, 168 S. W. 2d 822 is not involved herein.
Finding no error the judgment of the circuit court is affirmed. | [
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G-rieein Smith, Chief Justice.
Mutual accounts are involved. The litigants, brothers-in-law, have not kept books in the sense ordinarily understood when the term is used. In fact, their transactions have been so loosely recorded that neither can say with certainty what the other owes; hence the difficulty in ascertaining a balance.
Appellant Whetstone contends that after allowing for all differences as to which he is not certain, and crediting Appellee Walsh with border-line claims, the net amount due him is $384.04. Walsh insists that he not only has paid in full, but that Whe.tstone owes a store balance, as shown by three groups of charge tickets. The Chancellor dismissed Whetstone’s complaint, but gave judgment in favor of Walsh for $46.29.
Whetstone, in 1936, owned lands near Stillion Switch. He sold timber to Walsh, the agreement being that $175 should be deposited in a bank to Whetstone’s credit. The difference was to be paid Whetstone’s wife, from whom he was at that time separated.
There was a later oral agreement whereby Walsh cut chemical- and pulpwood from lands owned by Whetstone. Delivery by Walsh was to Crossett Lumber Company. Cutting occurred in 1937 and 1938. At various times Whetstone left money with Walsh. ■ March 15, 1938, $269.38 was so deposited, part of which, seemingly, was on account, and part in the nature of an advance. Whetstone’s testimony was, “I was helping him out; I did not owe him this. ’ ’
As relations between the two grew less cordial, Whetstone charged" that Walsh was not accounting for all of the chemical- and pulpwood cut from his land, for which he was to be paid per cord. Crossett, prior to suit, declined to give delivery information, but upon order of the Chancellor a statement was supplied. Prima facie it disclosed amounts substantially in excess of the number of cords Walsh had accounted to Whetstone for.
An auditor was employed, to whom Whetstone delivered his ledger, charge and credit tickets, and such other data as were available. On the face of the audit Walsh was shown to have been indebted to Whetstone $444.97, “plus all wood that Walsh has failed to account for.” Sales alleged to have been concealed were found to be $216.08, according to Whetstone.
. However, when testimony was taken in an effort upon the one hand to verify the audit, and upon the other hand to impeach it, various errors were disclosed — although the entries, as such, were conceded by Walsh to be correct, subject to the explanations he made, involving claims of payment. Whetstone admitted having in one instance failed to credit Walsh with $136.75. Another omitted credit was $5, making a total of $141.75 “which appellant readily concedes.”
While protesting that settlements were periodically made, Walsh was never quite certain that all “running transactions” between them were included. Apparently these adjustments were approximations, each party reserving, with tacit consent of the other, a right to present and explain any matter that may have been overlooked. This course of conduct, we think, prevented the statute of limitation from running against the item of $175 conceded by Walsh to have been the consideration for which Whetstone sold timber to him in 1936. The debt was admittedly unpaid unless absorbed by the so-called periodical “settlements.”
We do not think payment can be accounted for in that way; and, in respect of the three tickets for merchandise which were admittedly included in the audit, they were referable to purchases made in 1940. Evidence supports the conclusion that they were not among the obligations unaccounted for.
The decree will therefore be reversed as to the judgment in favor of Walsh for $46.29. Judgment is rendered here in favor of Whetstone for $175, with interest from suit. Costs in both courts will be equally apportioned between the two. | [
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Per Curiam.
Appeal is from the court’s refusal to compel the Sharp County Board of Election Commissioners, by mandamus, to omit from the official ballot to be used in the general election November 7 the names of Bryan Hutchinson, Carey Godwin, and Glen Horton, independent candidates for county offices. They did not comply with the provisions of § 4 of Act 308 of 1913 by filing the so-called corrupt practice pledge in a timely manner. It is conceded that belated pledges were filed.
The controlling question is, Did the General Assembly, by § 13 of the act, intend that it should extend to general elections? The title is, “An Act to require campaign contracts to be in writing; to prohibit the expenditure of money or other inducements to influence votes in primary elections; to require candidates in such elections to file accounts of campaign expenses, and for other purposes.”
In each of the first eleven sections “primary election” appears on the subject dealt with. Section 12 imposes penalties for violation “of any provision of this Act.” Then follows § 13 in this language:
“The provisions of this Act shall apply to all general and special elections held for any purpose in this State. Should this section be held invalid by the courts, it shall not thereby be understood as affecting, and shall not affect, the other-provisions of this Act, or any of them.”
Section 14 is the emergency clause.
House of Representative records in the office of the Secretary of State show that § 13 was substituted for original matter, but it does not appear what the original section was.
It is insisted a presumption arises that the lawmakers concluded to broaden the bill in the sense con tended for by substituting, in lieu of what had been written, the language finally used — that is, “all general and special elections.” This argument presupposes'restrictive wording in the matter for which § 13 was the variant. Effect of appellants’ theory would be that the Legislature intended, by the change, to cover all general nominating elections, all special nominating elections, and all general elections where nominees are voted on, or where (irrespective of nomination by primary procedure) a candidacy appears. Since we do not know what the abandoned provision was, speculation cannot supply the want of information.
Result is that we must deal with an act wherein the title (which, of course, is not controlling, but may be looked to in ascertaining intent) and eleven consecutive sections speak of “any primary election.”
Our conclusion is that § 13 applies only to general and special elections of the kind the General Assembly was dealing with: that is, general and special primary elections.
Since the trial court declined to provide the relief asked by the petitioners, we do not decide whether Act 54 of 1939 is constitutional. Appellants contend that it is valid.
Affirmed. | [
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Smith, J.
Separate informaticfhs were filed against appellant Moore and one Roosevelt Morrow, charging each of them with the crime of grand larceny, alleged to have been committed by stealing a hog, the property of Powell Reed. By consent the cases were heard together, a separate verdict being returned in each case. Both were found guilty. Morrow was given a sentence of three years in the penitentiary, while Moore was given a sentence of only one year, and this appeal is from the judgment pronounced upon the verdict against Moore.
Errors assigned for the reversal of this judgment are that the verdict is contrary to law, contrary to the evidence, contrary to the law and the evidence, and is not sustained by the evidence. These assignments, which are in effect one, will be disposed of when we have passed upon the sufficiency of the testimony to support the verdict.
The testimony shows that the hog was killed one Friday afternoon or evening, shortly before Christmas, and was concealed under a stack of lumber in a lumber yard which was adjacent to a field owned by N. 'T. Goodwin, who testified that he had retired for the night, when two boys, who had been hunting rabbits, called him and told him that they had found a dead hog in the lumber yard, concealed under a pile of lumber.
Goodwin called N. T. Murphy, a neighbor, and they went together to the lumber yard, where they found the hog. They examined the hog to see how it was marked, and found an over half crop in the hog’s left ear, and a split and under bit in the right ear, and they recognized this as the mark employed by Reed. Goodwin and Murphy concealed themselves to see who came for the hog. They waited until about 2:30 a. m., and as no one came they went home. Goodwin returned to the lumber yard about 6:00 o’clock the next morning, and found the hog had been removed.
During the following morning Goodwin and Murphy found Morrow peddling pork near the mill, and they told him they wanted to see the hog’s head. Morrow went with them to his (Morrow’s) home, where they found the head of tlíe hog. Its , ears had been cut off next to its head. Morrow then went with them to the lumber yard, and showed them the stack of lumber under which the hog had been hidden, and told them he had taken the hog to his home about 5:00 o’clock that morning. Murphy gave testimony to the same effect.
Reed, the alleged owner, described his mark and testified that after Goodwin had told him about the hog, he climbed up on one of the lumber stacks where he could observe Morrow’s house, which was about 200 yards away. He saw Moore go into Morrow’s house a time or two. He went over to Morrow’s house, and as he reached it he heard Moore say, as Moore came out of the house, “I have got to get someone to peddle this meat.”
John Bunn testified that late on the Friday afternoon when the hog was killed, he saw Moore and Morrow across the road, and Moore had a gun which looked like a 22 rifle. The hog was killed by a shot in the head from a 22-caliber rifle.
Jim Harrington testified that Moore told him on Friday, the day the hog was killed, that he was going to kill a hog and would sell the meat for 11c a pound. On the next day Moore told Harrington that “I have got the hog,” and Harrington replied, “I have got the money.” They went together to Morrow’s house, where they found a hog which had been recently dressed. The hog, without its head, weighed 81 pounds, but Moore then asked 20c per pound, and Harrington would not buy any of it because of the increased price which was asked.
Morrow admitted killing the hog and cutting its ears off, but he testified that it was his hog. He exculpated Moore from any complicity in the crime. An attempt was made to prove an alibi for Moore, but that testimony was evidently not credited by the jury. We think the testimony was amply sufficient to sustain the verdict, and the judgment must be affirmed, and is so ordered. | [
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Frank Holt, Justice.
A jury convicted the appellant of aggravated robbery (Ark. Stat. Ann. § 41-2102 [Supp. 1981]) and fixed punishment at life imprisonment. For reversal, the appellant, through court appointed counsel, first argues that all four of the principal witnesses against him, Tommy Lear, Jerry Lear, Brenda Taylor and Bobby Goleman, were accomplices as a matter of law, and that the other evidence was insufficient to corroborate their testimony as required by Ark. Stat. Ann. § 43-2116 (Repl. 1977). We disagree.
The appellant’s nephews, Tommy Lear and Jerry Lear, took money, at gunpoint, from the Commercial National Bank at Fouke, Arkansas. They pled guilty to aggravated robbery before appellant’s trial at which they were state witnesses. Jerry Lear testified that the appellant had planned the robbery three or four days before, enlisting his and Tommy’s aid, with the understanding they would receive $1,000 each. The appellant was to receive the balance of the robbery proceeds. Tommy Lear first testified that he and Jerry were to get $ 1,000 each, but he did not know where the rest was supposed to go because the appellant was not much involved in the robbery. Later, he admitted telling police that the appellant had hired him and Jerry for $1,000 to commit the robbery, and he was afraid to tell the whole truth at trial because of the danger of reprisal. The other principal witnesses against the appellant are Brenda Taylor and Bobby Goleman. The state concedes that the Lears, appellant’s nephews, are accomplices as a matter of law but contends that Taylor and Goleman, whose testimony is recited later, are not.
The trial court instructed the jury in the language of the statute on the definition of an accomplice and the necessity of corroboration. Ark. Stat. Ann. § 41-303 (1) defines accomplice:
A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(a) solicits, advises, encourages or coerces the other person to commit it; or
(b) aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(c) having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
Ark. Stat. Ann. § 43-2116 (Repl. 1977) provides:
A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof.
In Cate v. State, 270 Ark. 972, 606 S.W.2d 764 (1980), we stated that the defendant in a criminal case has the burden of proving that a witness is an accomplice whose testimony must be corroborated; whether a witness is an accomplice is usually a mixed question of fact and law; and the finding of the jury as to whether a witness is an accomplice is binding unless the evidence shows conclusively that the witness was an accomplice. As stated in Wilson & Dancy v. State, 261 Ark. 820, 552 S.W.2d 223 (1977), “[m]ere presence, or negative acquiescence and passive failure to disclose the crime are neither separately nor collectively sufficient to make one an accomplice.” Further, we reiterated: “The knowledge that a crime is being or is about to be committed cannot be said to constitute one an accomplice. Nor can the concealment of knowledge, or the mere failure to inform the offices of the law when one has learned of the commission of a crime.”
Taylor, who was also charged with aggravated robbery, testified that she was in appellant’s car when he followed his nephews to Fouke, Arkansas. She was aware of the plans to rob the bank. They drove toward a rendezvous point outside Fouke, where the nephews were to leave appellant’s share of the money. Following the robbery, they followed the Lears for about two miles until a police car appeared and then “we cut off.” Taylor denied any complicity or active participation other than the knowledge of the planned offense. Appellant argues that Taylor had a legal duty to make a proper effort to prevent the offense, about which she had knowledge, which she failed to do.
Goleman, 18 years of age, testified that he was present when plans were discussed by the appellant for the robbery. The appellant asked him to drive the automobile during the robbery, which he refused to do. Appellant offered him one-fourth of the total robbery proceeds and the remainder was to be split between the appellant and his two nephews. However, he did not think the Lears were serious about the robbery and did not notify the police. It is undisputed he declined any participation in the offense. He was not an accomplice as a matter of law. Wilson & Dancy v. State, supra.
As we recently stated in Walker v. State, 277 Ark. 137, 639 S. W.2d 742 (1982), corroborating evidence is sufficient if, independently of the testimony of the accomplice, it tends in some degree to connect the defendant with the commission of the crime. Here, the testimony of Goleman connected the appellant with the commission of the crime and sufficiently corroborated the essential point that the appellant actively participated in the bank robbery. This being true, we need not discuss whether Taylor was an accomplice as a matter of law.
The appellant next contends that the trial court erred by admitting into evidence a Rand McNally road atlas and two boxes of .22 shells, which were found in appellant’s car when he was arrested a few hours following the robbery. The atlas was open showing a map of Arkansas and Fouke, Arkansas, was encircled in red ink. The appellant consented to the search. He does not argue that the search was unconstitutional or that the evidence was inadmissible under the rules of evidence. Rather, his sole argument is that sanctions should be applied by prohibiting the evidence because the prosecutor failed to comply with discovery procedures as required by A.R.Cr.P., Rule 17.1, subject to Rule 19.4, which requires the prosecuting attorney to disclose to the defense evidence to be used at trial or acquired from or belonging to appellant.
Rule 19.7 provides in pertinent part:
(a) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant thereto, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in.evidence the material not disclosed, or enter such other order as it deems proper under the circumstances. (Italics supplied.)
The language of this rule obviously leaves the decision whether to exclude material, which was not disclosed, to the sound discretion of the trial court. Here, the trial court allowed appellant’s counsel time to inspect the atlas and .22 shells, which were first produced at trial. A continuance was not requested. Furthermore, the prosecutor stated that his entire case file had been given to appellant’s counsel who was advised that he could review at his convenience any evidence held at the Miller County sheriff’s office and that his case file indicated such a map existed. He did not have the map in his office. Appellant’s counsel replied that it was his understanding from the prosecutor that he had not seen a map and he would have to await the arrival of the arresting officers from Louisiana because the map was in their custody, if the map existed. Therefore, it appears there was a sufficient disclosure as to the existence of the map and where it was available for inspection if the appellant desired to inspect it before trial. In the circumstances, we find no abuse of the trial court’s discretion pursuant to Rule 19.7, supra. Thomerson v. State, 274 Ark. 17, 621 S.W.2d 690 (1981).
Finally, the appellant contends that the verdict of life imprisonment, in light of the evidence, is excessive especially since appellant’s nephews only received twenty year sentences each with ten years suspended. In Kaestel v. State, 274 Ark. 550, 626 S.W.2d 940 (1982), we answered a similar contention by observing: “As to the severity of a sentence, except in capital cases, we do not review the severity of a sentence within the lawful maximum and not affected by error in the trial, that determination having been committed to the jury by the Constitution and statutes.” Aggravated robbery is a Class Y felony. Ark. Stat. Ann. § 41-2102 (Supp. 1981). The range of punishment for a Class Y felony is not less than ten (10) years and not more than forty (40) years or life. Ark. Stat. Ann. § 41-901 (1) (a) (Supp. 1981). The sentence here is within the lawful maximum and unaffected by any demonstrated error in the trial so we have no authority to modify it.
Pursuant to the requirements of Ark. Stat. Ann. § 43-2725 (Repl. 1977), Rule 36.24 of the Rules of Criminal Procedure, and Rule 11 (f) of the Rules of the Supreme Court, we have reviewed the record and all objections and find no prejudicial error.
Affirmed.
Dudley, J., not participating. | [
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Hart, C. J.,
(after stating the facts). The first and most important question in this case is whether an offer to the collector of the street improvement district of payment of all the past-due taxes or assessments upon the lot in question and a payment by the owner of all sums made known to him by the collector are equivalent to an actual payment of the whole and will operate as a redemption from the tax sale.
In Forehand v. Higbee, 133 Ark. 191, 202 S. W. 29, it was held that where a deputy county clerk in the discharge of his official duties issues a certificate of redemption, the landowner has a right to rely upon it as containing the correct amount of taxes, penalty and costs due by him, and that the payment of the sum contained in it is effectual as a statutory redemption. It was further held that a taxpayer cannot be deprived of his right of redemption by the neglect of duty on the part of the officers of the State. Many cases from courts of last resort, including the case of Martin v. Barbour, 140 U. S. 634, 11 S. Ct. 944, were cited in favor of the rule.
The principles announced in that case apply with equal force in the case of the redemption from delinquent street improvement district taxes. The parties acting in the redemption are the owner and the officer. It is the duty of the owner to apply for the redemption, but the officer must furnish him with the means of making his tender. The officer who is the legal custodian of the books and entries of the taxes and costs must necessarily know the sum to be tendered. It is the duty of the collector to give the owner or his agent this information when asked for it; and if he mistakes the amount of taxes and costs to be paid for thé redemption, his mistake shall not defeat the redemption. The owner, having called for the amount and having paid all demanded for the redemption, cannot be involved in the loss of his land by the mistake of the officer.
In the present case, the bank acted in good faith. Through its agent, it went to the collecting officer of the improvement district at his office and asked for the delinquent improvement district taxes due and offered to pay the whole amount necessary for the redemption of the lot.. Reliance was placed in good faith on the statement of the collector, and the amount claimed by him to be due was paid to him. The agent of the bank was justified in so doing and was not required to personally examine the books and ascertain if the amount demanded was correct. The owner had a right to rely upon the assurance of the officer with whom he was required to deal in the matter to correctly inform him of the proper amount necessary to redeem the lot. The agent testified positively that he asked the collector for all delinquent street improvement assesssments and told him that he wished to pay the amount due in order to redeem the land. He did pay the amount given him by the collector.
It is true that he did not specifically ask if there was any decree of foreclosure, but this was not necessary. His offer to redeem included this amount. While the collector of the district testified that the agent for the bank did not ask about all the delinquent improvement district taxes, he is contradicted by the surrounding circumstances. He had been the agent of the bank in renting the property and knew that it was valuable property. The amount of street improvement district taxes due annually was only $1.50. The amount, including taxes and costs iii the foreclosure decree, was only $5.90. The collector must have known that the owner of the property was offering to pay all the delinquent street improvement assessments. To allow the sale to appellant to stand would he to assist the improvement district as an agent of the State to take advantage of its own wrong. The right to redeem is a substantial right given by statute, and was prevented from being exercised within the statutory period of five years by the neglect on the part of the collector of the improvement district to do his duty. Section 5644 of the Digest gives the owner the right of redemption at any time within five years from the date of the sale. The record shows that the offer to redeem was made within the five years allowed by statute, and that a tender of the amount necessary to redeem was deposited in the registry of the court after the refusal of the defendant Wilkins to accept the same.
It is true that Lowe was the original owner of the land, and that the foreclosure for the non-payment of the delinquent street improvement assessment was against him. Lowe had mortgaged the land to the bank, and the bank had foreclosed its mortgage and had become the holder of the legal title to the lot at the time the offer to redeem was made. Therefore, the bank had the right to redeem, and its right could not be defeated by the sale of the property by the district to Wilkins because the latter acquired no better title than the district itself had. The statute gave the right to redeem, and there could be no such thing as an innocent purchaser at a tax sale or from one who purchased at a tax sale as against the statutory right of redemption. Bradbury v. Johnson, 104 Ark. 108, 147 S. W. 865, Ann. Cas. 1914C, 419.
The conclusion we have reached renders it unnecessary to consider other questions argued by counsel in their brief or to abstract the facts upon which such arguments are based. It follows that the decree of the chancery court was correct, and it will be affirmed. | [
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George Rose Smith, Justice.
Thomas Winford Simmons, age 37, was sentenced to death for capital murder, in that he shot four persons in the back of the head, one of them while handcuffed and helpless. Simmons, represented in the trial court and here by the public defender, argues 22 points for reversal. We find no prejudicial error of any kind. For convenience we discuss Point 16 first, the sufficiency of the evidence, requiring a narrative of the facts, then the three points on which counsel place particular emphasis, and finally the other 18 points, grouping them when appropriate.
First, a narrative of the evidence. Simmons was charged with having caused the deaths of (1) Larry Price in the course of kidnaping, (2) police officer Ray Tate acting in the line of duty, and (3 and 4) Jawana Price (Larry Price’s wife) and Holly Gentry in the course of kidnaping, robbery, and rape. We detail the events as they occurred, beginning on Saturday, January 3,1981, and continuing through the following Wednesday. We should note at the outset that Simmons has made no statement about the homicides either to the investigating officers or at the trial, resting throughout on the plea of not guilty and his right to remain silent.
Holly Gentry, who was Jawana Price’s employer, asked her to sell his car for him, a maroon-silver LTD. The Prices advertised the car for sale. On Saturday afternoon a witness who lived next to the Prices’ apartment in Fort Smith saw a man drive up in a small yellow car. (Simmons’s car was a small yellow Toyota.) The witness, who noticed the stranger looking at the LTD, told him that the Prices were away for the weekend and suggested that he come back during the week.
Early Monday morning a man came by to look at the LTD, according to statements made by Jawana Price when she went to the police that afternoon to report that her husband was missing. A neighbor testified that he saw Simmons, whom he identified at a lineup and in court, looking at the LTD with Larry Price. According to Jawana’s report, her husband and the visitor took a test drive together and were drinking coffee in the apartment when Jawana left for work in her own car.
At some time during the morning Simmons took to his branch bank in Van Burén a $350 check drawn on a Clarksville account that had been closed by the Prices some months earlier. Simmons received $50 cash and deposited the rest. The Price signature on the check was a forgery. The jury could have concluded that Simmons kidnaped Larry Price, killed him by shooting him in the back of the head, and hid the body in a wooded area not far from Simmons’s home at Kibler in nearby Crawford county. The fact that blood from Price’s head wound dripped into water just below where his body was hidden indicated that the wound was still bleeding when the body was concealed. The medical examiner testified that Price’s death could have occurred during the day at any time after 8:00 a.m.
That afternoon the witness Seaton, working at a parking lot used by Jawana, noticed a man in a yellow Toyota watching Jawana’s car for more than an hour. Seaton wrote down the license number, which was shown to be Simmons’s number, but Seaton did not report the incident to the jpolice until the next day, Tuesday.
Larry Price failed to meet Jawana for lunch as they had planned. She also learned that he did not show up for work that day. When she and Gentry left work that afternoon they drove in Gentry’s pickup truck to police headquarters, where they reported Larry to be missing. They talked to Officers Davis and Tate. At about 6:00 p.m. Gentry and Jawana left the police station to go to the Prices’ apartment, and Officer Tate left in his unmarked blue police car to meet them there. Shortly before that a man not clearly identified had engaged a taxicab and had been dropped off at the Prices’ apartment complex.
James Davis, a neighbor across the street, saw a man (apparently Officer Tate) arrive at the Prices’ apartment complex in a blue car. The man looked briefly at the truck and then went into an apartment. Shortly after that another man made three trips from an apartment to the blue car. The first time he brought out a man whose hands were tied behind his back and had him get in the blue car. Next, he brought out another man, also tied, who was put in the car. Third, he brought out a woman, who was crying, and drove off with all three. Officer Tate had reported in by radio when he arrived at the apartment complex; he was never heard from again. Late that night Tate’s police car and Gentry’s LTD were found parked in public areas in or near Fort Smith.
When the branch bank opened on Tuesday morning, Simmons was waiting to get in. He asked for the return of the check he had deposited the day before. The two bank employees connected the name on the check, Larry Price, with the missing-persons account that was already extensively in the news. They mentioned that fact to Simmons, but said they did not have the check at the branch. When Simmons drove away his license number was written down by one of the bank employees, whose husband was a police officer. She at once called her husband about the incident. A quick investigation traced the number, to Simmons, who had given his name and address at the bank. It was also learned that Simmons was on parole from a federal prison (a fact not disclosed to the jury), that he worked at a sand and gravel company near Fort Smith, that he had not been at work on Monday, having called in to say that he had an accident in his car, and that he was at work on Tuesday.
Several officers went out to the sand and gravel company to interview Simmons. According to them, he was cooperative and readily agreed to accompany them to headquarters for questioning about the check. At a suppression hearing the officers testified that Simmons explained he had encountered Larry Price on Sunday night and had received the check as payment for a sale of marihuana. He encountered Price at a later meeting on Sunday night, and Price said the check was bad. When the officers mentioned that Price was missing, Simmons refused to make any further statement and asked for an attorney. The officers then placed Simmons under arrest for violation of his parole, ceased their questioning, and called the public defender to represent him. None of the testimony about Simmons’s explanation was heard by the jury.
At about three o’clock on Tuesday afternoon a farmer working near Kibler, where Simmons lived, happened to find the bodies of Tate, Gentry, and Jawana Price, piled together in á big tractor tire in a field and partially concealed. Tate’s hands were fastened behind his back with his handcuffs. On the basis of their total information the police charged Simmons with the murders at about 5:40 p.m. Larry Price’s body was found by a deputy sheriff in the woods near Kibler on Wednesday, as a result of a telephone call.
Scientific testimony and other evidence provided much additional proof of Simmons’s guilt. As to robbery, missing from the three bodies were the three men’s wallets and Jawana’s purse. As to rape, Jawana’s body had slight bruises in the genital area, her pantyhose were on wrong side out, a belt was not through all its loops, and semen in her vagina matched Simmons’s blood type but not that of Larry Price. A pistol lying under the three bodies was positively identified as the murder weapon. Its serial number had been filed down, but the number could be determined. That pistol had been bought by a neighbor of Simmons’s, who had lost it in the woods some two years earlier and had reported the loss to the police. From the proof the j ury could have found beyond a reasonable doubt that a hair from Simmons’s body was discovered in Officer Tate’s shirt and another hair from Simmons’s body was found in Larry Price’s sock. We have no doubt about the sufficiency of the evidence, circumstantial though it was.
Point 1 assigns error in the trial judge’s denial of a requested change of venue. There was, understandably, much media publicity during the first few days, when the four victims were missing and after their bodies were found. Later the news coverage was not especially extensive. The affidavits submitted with the motion were conflicting, with the State’s outnumbering those of the movant’s. Most important, the twelve jurors and two alternates, without exception, were accepted as “good for the defense.” More than seven months elapsed between the original publicity and the trial. Only six of about sixty prospective jurors were excused because of their beliefs about Simmons’s guilt. We agree that Simmons would have been entitled to a change of venue beyond the two-county circuit had the proof required a change, but it did not. The court was right in denying the motion. See Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).
Point 2 questions the denial of motion in limine by which defense counsel sought a ruling that if Simmons chose to testify the State could not impeach him by evidence of previous felony convictions if counsel first offered to concede that Simmons had previously been convicted of one felony.
Neither branch of counsel’s twofold argument can be sustained. Primarily, it is argued that when counsel admitted one felony conviction, Simmons would then be effectively discredited and could not be further impeached by proof of other convictions (of which he had several). Neither the common law nor Uniform Evidence Rule 609 supports the argument. The common law permitted impeachment by proof of any felony conviction; Rule 609 contains limitations as to the time and nature of the convictions and as to their comparative probative value, but none as to their number. If proof that a witness has been convicted of murder or theft or perjury is admissible to impeach his veracity, as it usually is, then proof that he has committed such offenses time and time again may fairly be considered by the jury as further impairing his credibility. Counsel misinterpret our holding in Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978). There a State’s witness had been impeached by a felony conviction. Campbell, trying his own case, asked the witness “the actual date and time that you received, or were sent to the penitentiary?” The trial judge disallowed the question, as irrelevant. We affirmed, saying: “[I]t is the fact of conviction that impairs the witness’s credibility, not the date of the sentence or its length.” Our point was that the details inquired about were not relevant. We did not mean that the bare fact of a conviction of a felony precludes the cross-examiner from identifying that felony and others underlying the previous convictions. To the contrary, Uniform Rule 609, by requiring that probative value be weighed against prejudice and by admitting all convictions involving dishonesty, undeniably contemplates that the jury will know just what crimes the witness has been convicted of.
Secondarily, counsel argue that proof of a prior conviction for kidnaping would have been inadmissible, because its prejudicial effect would have outweighed its probative value in this case, where kidnaping is also involved. Our holding in Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981), is cited, but it is not controlling. There the defendant, a grown man, was charged with having sexually molested a nine-year-old boy. We held that an earlier similar conviction involving another little boy was not admissible, because its prejudicial effect would clearly outweigh its probative value as bearing on credibility. It is common knowledge, however, that mature men who derive pleasure from sexual contact with very young boys are apt to repeat such conduct; so the prejudicial effect of the prior offense does overshadow its potential worth on the narrow issue of credibility. In Jones we pointed out that there may be instances in which proof of an earlier conviction for the same crime as that on trial may be admissible. Kidnaping, unlike sexual abuse of minors, is not the sort of offense that perverted people are apt to commit again and again. We cannot say that the trial judge abused his discretion in concluding that a prior conviction for kidnaping would be admissible if Simmons elected to testify.
As to such an election, we make a point for the future. A motion in limine, asking for an advance ruling that the defendant not be exposed to cross examination about certain convictions, is subject to abuse, in that the accused may not intend to testify at all and yet seek a ruling in the hope of leading the trial judge into reversible error, with the possibility of a new trial and a second chance of acquittal. Some courts have met the problem by denying review unless the defendant actually testifies at the trial. That has not been our position in the past, nor is it now. We do adopt, however, the rule approved by the majority in United States v. Cook, 608 F.2d 1175 (9th Cir. 1979), where the opinions on both sides discussed all aspects of the problem. The majority summed up its ruling as follows:
In future cases, to preserve the issue for review, a defendant must at least, by a statement of his attorney: (1) establish on the record that he will in fact take the stand and testify if his challenged prior convictions are excluded; and (2) sufficiently outline the nature of his testimony so that the trial court, and the reviewing court, can do the necessary balancing contemplated in Rule 609.
In adopting what we regard as the better rule we realize that in some instances a defendant may prefer not to outline his expected testimony at a pretrial hearing held before the prosecution’s witnesses have testified. In that situation the trial judge may postpone a ruling upon the motion in limine until the State has rested and the time has come for the defendant to reach his final decision about testifying. At that stage of the trial there would be scant basis for his refusal to outline the testimony he expects to give almost immediately.
In Point 12 counsel attack the admissibility of various physical exhibits introduced in evidence by the State, as being fruits of the poisonous tree, because (a) Simmons was illegally arrested at his place of work, (b) his consent to search his car was invalid, and (c) search warrants under which his house was searched and under which samples of his blood and hair were taken were not supported by sufficient affidavits.
Subpoints (a) and (b) may be discussed together, both turning on issues of fact. The undisputed testimony is that Simmons willingly accompanied the officers to the police station and that he willingly consented to the search of his car. As in Lascano v. State, 275 Ark. 346, 631 S.W.2d 258 (1982), the officers were not asked whether they told Simmons that he did not have to accompany them. It is argued that the officers should have told Simmons that he was a suspect in the disappearance of four persons, but that assertion is too sweeping. The officers knew that Simmons was on parole, that he had sought the return of a Price check he thought to be bad, and that he had not been at work on Monday. Innocent explanations were obviously possible. Simmons’s statements to the officers were not put before the jury. The only exhibits taken in the search of his car were the license plate, which was otherwise provable in countless ways, and a matchbook, the relevance of which is not clear. Thus on subpoints (a) and (b) the trial judge’s decision on issues of fact is not clearly erroneous, and even if it were no prejudice has been shown.
As to (c), we need not quote the detailed affidavits for the search warrants. The only really serious argument here is that the affidavits did not show the reliability of two informants: James Davis, who saw the three victims being taken from the apartment to Tate’s car, and Donald Seaton, who saw Simmons watching Jawana’s car at the parking lot. Davis and Seaton, however, were not confidential informants whose identity was being protected. They volunteererd information simply as good citizens. The police necessarily rely upon such information every day in the course of their work, without first exploring abstract issues of credibility. Hence no additional support for the reliability of Davis and Seaton was required. Hadley v. State, 391 So.2d 158 (Ala. Cr. App., 1980); People v. Bell, 96 Ill. App. 3d 857, 421 N.E.2d 1351 (1981); State v. Watson, 588 S.W.2d 178 (Mo. App., 1979).
Points 3, 4 and 13 have to do with pretrial decisions. In Point 3 it is argued that the defense should have been allowed more than $200 to conduct its investigation into possible defenses. Counsel, however, do not show that the amount was inadequate or even suggest any defense that might have been discovered. Their client, whether innocent or guilty, surely was aware of any fact that might establish his innocence. As to Point 4, the validity of our death penalty statute has been settled by many cases, beginning with Collins v. State, 261 Ark. 195, 548 S.W.2d 106, cert. denied, 434 U.S. 878 (1977). Point 13, questioning the lineup procedure, is also without merit. From a lineup of men not greatly dissimilar to Simmons in general appearance, he was picked out by the witness Gilbert, who had talked to Simmons for about five minutes on Saturday, only four days before the lineup, and by the witness Kremen, the neighbor who had seen Simmons and Larry Price looking at the for-sale LTD only two days earlier. Under the various tests of reliability enumerated in Mayes v. State, 264 Ark. 283, 288, 571 S.W.2d 420 (1978), and other cases, thé trial judge’s decision was not wrong.
Points 5, 6, 7, and 8 concern the selection of the jury. Point 5 must be rejected, for we have often held that a death-qualified jury is constitutional. Points 6 and 7 complain of counsel’s having had to use peremptory challenges for prospective jurors after challenges for cause had been denied. The challenges for cause were properly denied, and in any event the defense was not compelled to accept any juror who was not pronounced good by counsel. Under Point 8 it is argued that the State should not have been allowed to peremptorily challenge two jurors who had already been accepted by both sides. That procedure was approved in Conley v. State, 272 Ark. 33, 612 S.W.2d 722 (1981), where the defense had no peremptory challenges left when the State was allowed to excuse a juror already seated. By contrast, here the defense still had three challenges left when the two jurors were excused. In fact, the defense apparently did not suffer from a shortage of peremptory challenges, because (a) the prosecutor cooperated by making no objection to defense challenges for cause, (b) defense counsel mentioned more than once that they had to exhaust their peremptory challenges to preserve their objection to venue, and (c) no juror was forced upon the defense. No possible prejudice from the court’s procedure appears.
Five points relate to the admissibility of evidence. Point 9: The .prosecution did not unfairly withhold evidence merely because the deputy sheriff who received a telephone Call about the discovery of Larry Price’s body at first protected the caller’s request for anonymity, but disclosed the caller’s identity at the trial after the caller had given permission. There is no indication that the officer acted in bad faith, that he had disclosed the name to the prosecutor, or that the defense was handicapped by not knowing earlier the identity of the caller. There was no request for a continuance. Point 10: The court correctly refused to admit proof that some of Simmons’s relatives had blood type A, which was the Prices’ type and the type found on Simmons’s trousers. There was no proffer of proof that the relatives’ blood could in any way have gotten upon the trousers. Point 14: The four photographs complained of were relevant and in no manner whatever apt to inflame the jury. Point 15: Any possible gaps in the chain of custody of blood samples were inconsequential, and there was no substantial indication of possible tampering. Davis v. State, 275 Ark. 264, 630 S. W.2d 1 (1982). Point 18: During the penalty stage of the two-step trial the court correctly refused to allow the defense to introduce pictures of a gas chamber, a gallows, and an electric chair, none of which can be regarded as a mitigating circumstance. Such circumstances, as typified by the six listed in Ark. Stat. Ann. § 41-1304 (Repl. 1977), are applicable only to the particular defendant, not to capital punishment in general.
Five points relate to matters occurring after the parties had rested their case. Point 11: Whether to send the jury to the scene of the Prices’ apartment, to determine how well the witness Davis could have seen the three victims being taken to the car at some imprecise time after sunset, was a matter addressed to the trial judge’s discretion. Hogan v. State, 224 Ark. 191, 272 S.W.2d 312 (1954). No abuse of discretion is shown. Point 17: The court was right in submitting to the jury the various charges of capital murder, for we have already seen that there was substantial evidence to support each verdict. Points 21 and 22: The court refused to instruct the jury that it had to presume that if Simmons were sentenced to life imprisonment without parole he would spend the rest of his life in prison and refused to rule that if defense counsel made such an argument to the jury the prosecutor should be prohibited from mentioning in reply the possibility of executive clemency. Both rulings were right. For the reasons fully explained in Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971), the judge should not, and therefore counsel should not, attempt to explain matters of parole or other executive clemency to the jury.
Point 19 is novel. The verdict forms submitted to the jury in a capital case restrict the jury to certain aggravating circumstances, but the jury is not restricted in finding mitigating circumstances. Here the forms pertinent to the murder of Jawana Price, Tate, and Gentry, were returned with a notation that some of the jurors felt that “fear of detection” was a mitigating circumstance. Counsel asked for a mistrial, arguing that the jury must have misunderstood the court’s instructions, because fear of detection would be an aggravating circumstance, not a mitigating one. The court refused to declare a mistrial; an offer to poll the jury was declined by the defense.
The court was right, for either of two reasons. The jury’s answers to the questionnaire must be interpreted by considering how they could have understood the question. Miller v. State, 269 Ark. 341, 355, 605 S.W.2d 430 (1980). Since the jury did not insert “fear of detection” as a mitigating circumstance in the death of Larry Price, which apparently occurred before the three other deaths, some jurors might have felt that fear of detection for the first murder mitigated the coldbloodedness of the other three. That view would have made their response a proper one. Second, if the verdict was ambiguous the judge could have sent the jury back for a further explanation of its intent. Clift v. Jordan, 207 Ark. 66, 178 S.W.2d 1009 (1944). Since counsel stood upon the motion for a mistrial and permitted the jury to be discharged without a clarification of the verdict, we cannot now resolve a highly doubtful speculation in the appellant’s favor. Reynolds v. Nutt, 217 Ark. 543, 230 S.W.2d 949 (1950).
Finally, the argument under Point 20 that the penalty was so severe as to indicate passion and prejudice cannot be sustained. In comparing this death sentence with similar cases, as is our practice, we know of no other case involving multiple murders so coldblooded, so brutal, so lacking in any trace of humanity, as those committed by Simmons. We cannot attribute the verdict to passion or prejudice or say that it is arbitrary in comparison with other cases. Nor do we find any prejudicial error in any other ruling adverse to the defendant.
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Per Curiam.
Appellee, who was the defendant in the court below files a motion to dismiss the appeal on the ground that the judgment rendered was not a final one. Appellee had filed a demurrer to the complaint of appellant in the court below on the ground that the complaint did not state facts sufficient to constitute a cause of action against him. The court sustained the demurrer, and the judgment of the court from which the appeal comes is as follows:
“Now on this day comes the defendant T. G-. Raines, by his attorney, W. P. Smith, and files its [his] separate demurrer to the complaint of the plaintiff, which demurrer is by the court sustained, to which rulings of the court the plaintiff at the time objected and excepted and asked that his exceptions be noted of record, which is accordingly done. And plaintiff stands on his complaint and prays an appeal to the Supreme Court of Arkansas, which is hereby granted. ’ ’
It is well settled in this State that a judgment sustaining a demurrer is equally conclusive by way of estoppel of the facts admitted in the demurrer as a verdict finding the same facts would have been. The reason is that the judgment is upon the merits of the action as presented by the complaint and admitted by the demurrer and is as effectual as if there had been a verdict upon the same facts, for they are established by way of record in either case. When the facts are established, the litigation as between the same parties and their privies is at an end. Therefore, when the party declines to plead further and judgment is rendered against him, it is a final one. Luttrell v. Reynolds, 63 Ark. 254, 37 S. W. 1051, and Barrentine v. Henry Wrape Co., 113 Ark. 196, 167 S. W. 1115. Numerous other cases to the same effect might be cited, but the rule is so well settled as to render , this unnecessary.
No special formality is necessary in a judgment, and it is tested by its substance rather than by its form. We are of the opinion that the judgment in the present case shows that the plaintiff stood on his complaint after the demurrer had been sustained to it. The judgment recites that the plaintiff stood on his complaint and prayed an appeal to the Supreme Court which was granted. This, in effect, amounted to a dismissal of the complaint after the plaintiff had elected to stand upon it, and the judgment rendered thus became a decision upon the merits of the case and was final and appealable. Melton v. St. Louis Iron Mountain & Southern Ry. Co., 99 Ark. 433, 139 S. W. 289 ; Durben v. Montgomery, 144 Ark. 153, 223 S. W. 17 ; and Hall v. Waters, 118 Ark. 427, 176 S. W. 699.
Therefore, the motion to dismiss the appeal will be denied. | [
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George Eose Smith, J.
This is a hill in equity brought by the appellee to enjoin the appellants from trespassing and cutting timber on lands to which the ap-pellee holds the record title. The appellants disputed the appellee’s ownership and introduced testimony to show that they have acquired title by adverse possession. The chancellor ruled against the appellants on the issue of adverse possession and permanently enjoined them from entering the property.
In its brief in this court the appellee contends that the oral evidence heard below was not properly preserved and cannot he considered by us in the determination of the case. With much reluctance we have concluded that this contention must he sustained, so that we may examine only the face of the record in our review of the chancellor’s decree.
At the beginning of tlie trial the conrt directed the reporter to take down the testimony, transcribe it, and file it as depositions. The decree contains a recital that Avhen the transcribed testimony has been filed under the certificate of the official court reporter for the Fifth Chancery District it shall become a part of the record in the case. Apparently this method of preserving the testimony was suggested by opinions such as that in McGraw v. Berry, 152 Ark. 452, 238 S. W. 618, where we stressed the necessity for the court’s giving his instructions to the reporter at the beginning of the trial rather than in the decree alone.
•In the present case, however, the difficulty-lies in the fact that the procedure' in the Fifth District has been changed by Act 269 of 1949, which became effective before the trial below. That Act authorizes the appointment of an official court reporter for this District and explicitly states that his transcription of the testimony, “when approved by the court,” shall be inserted in the transcript for an appeal to this court. Section 3 of the Act reads in part: “In cases of appeal to the Supreme Court, the transcribed notes of the stenographer shall be treated as a bill of exceptions or as depositions in the case until the same is approved by the Chancellor trying the case and such approval must be given during the term or within the time fixed for such approval by the court. ’ ’
We have italicized three words merely to show that there is an obvious omission or typographical error in the wording of the Act.' The legislature evidently meant that the transcribed notes shall not be (instead of “shall be”) treated as a bill of exceptions or as depositions until approved by the chancellor, or perhaps that they shall be so treated when (instead of “until”) approved by him. When a word in a statute is omitted or misused it is the duty of the courts .to disregard the error if the context plainly indicates the legislative intent. State ex rel Atty. Gen. v. Chicago Mill & Lbr. Co., 184 Ark. 1011, 45 S. W. 2d 26. Act 269 contains more than one reference to the court’s approval of the reported testimony, and the very sentence that contains the error fixes the lime within which the approval must he given. In view of this context we cannot refuse to give effect to what the legislature unquestionably intended.
It is easy to understand how natural it was for the attorneys in this case to follow the pre-existing procedure. It has been pointed out, however, that the practice in each chancery district is governed by a special statute as to the preservation of oral testimony, and litigants must be guided by the act that applies to the particular district. Stevenson, Supreme Court Procedure (1948), pp. 61-65. In some districts the chancellor need not approve the reporter’s transcription, but in other districts such approval is essential. By Act 269 of 1949 the Fifth District has been put in the latter category.
In this case at the beginning of the trial the chancellor directed the reporter to transcribe the testimony and file it as depositions. Act 269 permits the chancellor to approve the testimony during the term or within the time fixed by him for such approval. We think his directions to the reporter were sufficient to reserve the power to approve the testimony after the expiration of the term. In this respect the case is very similar to McCall v. McCall, 204 Ark. 836, 165 S. W. 2d 255, where the bill of exceptions was objected to because the chancellor had not approved it during the term. It appeared, however, that the parties had stipulated that when the stenographer completed the transcription it would be submitted to the chancellor, “and when so approved by the chancellor, filed as depositions and as a part of the record in this case. ’ ’ In holding that this stipulation sufficiently saved the court’s power to approve after the lapse of the term we said: “The agreement was unrestricted and should be liberally construed in the interest of justice.” In the present case the court’s direction to the reporter was unrestricted, and in the interest of justice we construe it as reserving the power to approve the reported testimony after the expiration of the term. But the trouble here is that the report of the testimony heard below has not yet been approved by the chancellor, and under our Rule 5(d) the time for filing transcribed testimony bas expired. We are therefore unable to take this evidence into account in reaching our decision.
On the face of the record there is no error. The only suggestion made by the appellants in this connection is that the cause should have been transferred to law, since the plaintiff below was not in possession of the land when the suit was filed. But the complaint asserted that the defendants were insolvent and were cutting timber upon the plaintiff’s land, and that is enough to confer jurisdiction in equity. Myers v. Hawkins, 67 Ark. 413, 56 S. W. 640.
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George Rose Smith, J.
Tbis action was brought by tbe appellees, four women wbo were injured in a collision between a car driven by tbe appellant and a car driven by tbe appellee Francis Watson and occupied by tbe other appellees as guests. In bis answer tbe appellant denied any negligence on bis part and by cross-complaint asserted a claim against Francis Watson for tbe damage to bis own car. At the close of tbe testimony tbe.trial judge directed a verdict against the appellant on his cross-complaint. The issues raised by the plaintiffs’ complaint were submitted to the jury, which returned verdicts totaling $2,550 for personal injuries and $723.35 for the damage to the Watson car. Judgments were entered accordingly.
Whether the appellant was negligent and whether the appellees were contributorily negligent were sharply disputed questions of fact. The accident happened in the city of Brinkley on March 24, 1948. The appellees testified that Francis Watson stopped her car upon reaching a through street in Brinkley and entered the intersection at a time when the appellant’s car was approaching slowly from their right, about 250 feet away. They attributed the collision to the fact that the appellant increased his speed and drove into their car without attempting to avoid a collision. The appellant said that he was driving at a moderate rate of speed and indicated that the accident was caused by Francis Watson’s failure to stop before entering the intersection.
The most serious assignment of error concerns rulings made by the trial court while the appellant was being cross-examined. The appellees’ attorney was attempting to show that the appellant had offered to pay for the damage to the Watson car. Without detailing all the objections and exceptions we quote the material parts of the testimony:
‘ ‘ Q. Did you talk to the driver of the automobile or her husband after the wreck?
“A. I might have seen him and I might have told him to come on over to the house and see me.
“Q. Didn’t you offer to pay Francis Watson’s husband the damages to his car?”
(Objection by appellant’s attorney.)
“The Court: This is cross-examination, Mr. Thurman.
“ Q. Do you remember making the statement to him to come on in and you would pay him for the.damages?
“A. No, sir, never. No, sir, I didn’t.”
(Renewed objection by appellant’s attorney.)
‘ ‘ The Court: I think he is entitled to ask the man if he offered to make a settlement. He testified that he might have said to Francis Watson’s husband to come on in and he would take care of the damages, or words to that effect.”
We agree with the appellant’s contention that these rulings were erroneous and prejudicial. It is familiar law that an offer of settlement is not admissible as evidence of liability. Hinton v. Brown, 174 Ark. 1025, 298 S. W. 198. Since the law favors the making of settlements without litigation it permits a person to suggest a compromise without thereby admitting that he has been at fault. In this case the question put was improper, but the court first ruled that it was permissible cross-examination. Upon a renewal of the objection the court stated that the witness had testified that he might have told Francis Watson’s husband to come in and he would take care of the damages. This summation of appellant’s testimony was inadvertently erroneous,^ for the witness had not admitted an offer to pay the damages. All that he had said was that he might have told Francis Watson’s husband to come to the house and see him.
It is natural for a jury of laymen to attach great weight to any remark made by the trial judge. See Western Coal & Mining Co. v. Kranc, 193 Ark. 426, 100 S. W. 2d 676. In the case at bar the jurors were justified in concluding not only that an offer of settlement was a proper matter for their consideration but also that the trial court interpreted the appellant’s testimony as an admission that he had made such an offer. In Hughes v. State, 70 Ark. 420, 68 S. W. 676, we held that it was reversible error for the trial court to remark that a witness had not said that she was unconscious, when in fact she had testified that she had been rendered unconscious. Here the appellant’s liability was a closely contested issue, and we cannot say that the error complained of might not have been a decisive factor in the jury’s deliberations.
It is also insisted that the proof supporting the cross-complaint presented questions of fact that should have been submitted to the jury. As the evidence may diffei materially upon a new trial we think it unnecessary to discuss this contention.
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Leflar, J.
This is an action against a foreign insurance corporation, on a contract of accident insurance entered into in another state, with substituted service on the defendant corporation by summons served on the State Insurance Commissioner under the provisions of Ark. Stats. § 66-244. Defendant appeared specially to the jurisdiction, by a motion to be discussed hereinafter. The motion to dismiss for lack of jurisdiction was overruled. Defendant then pleaded to the merits, still saving the jurisdictional issue. On trial by the Court sitting without a jury, judgment was for plaintiff, and defendant appeals.
Defendant is an Arizona insurance corporation. There was evidence that in 1949, about the time the present action was brought, defendant had been doing business in Arkansas without authorization, and this may be assumed to be a fact. It was established by stipulation of the parties that the insurance policy sued upon was entered into in California in 1944 while the insured, a resident of Arkansas, was temporarily employed in California, and that the insured while still in California suffered an injury -which was within the coverage of the policy. There was no evidence whatever that defendant was doing business in Arkansas at the time the policy was executed and delivered in California.
(1) The service on defendant, purporting to be under § 66-244 of the Statutes, was not authorized by that statute. That enactment provides: ‘ ‘ The transacting of business in this state by a foreign or alien insurer without a certificate of authority and the issuance or delivery by such foreign or alien insurer of a policy or contract of insurance to a citizen of this state or to a resident thereof ... is equivalent to an appointment by such insurer of the Insurance Commissioner . . . to be its true and lawful attorney, upon whom may be served all lawful process in any action, suit or proceeding-arising out of such policy or contract of insurance . . ” The statute provides for substituted service on the Commissioner only in suits “arising out of such policy or contract of insurance”, that is, a policy or contract issued to a citizen or resident of Arkansas by an insurance company which is doing business in Arkansas without authorization. Not only was plaintiff’s policy not issued in Arkansas, but there is no evidence in the record that defendant was doing any business in Arkansas when the policy was issued. The statutory mode of service is not authorized in such circumstances.
Apart from that, the due process clause of the Federal Constitution would be violated if substituted service such as plaintiff contends for were permitted. A- similar problem was presented in Old Wayne Mutual Life Ass’n v. McDonough, 204 U. S. 8, 27 S. Ct. 236, 51 L. Ed. 345. It was there held that, a foreign insurance corporation doing business in Pennsylvania without authority having been sued there by a local resident on an insurance policy executed outside the state, substituted service was wholly invalid even though a Pennsylvania statute providing for it had been complied with. In the absence of actual or implied consent to substituted service, such service on the foreign corporation was held to be limited to causes of action arising out of the business carried on or other acts done by the corporation in the state where suit was brought. See, also, Simon, v. Southern Ry. Co., 236 U. S. 115, 35 S. Ct. 255, 59 L. Ed. 492; Nat’l Liberty Ins. Co. v. Trattner, 173 Ark. 480, 292 S. W. 677; Portas v. Modern Investment Corp., 198 Ark. 300, 128 S. W. 2d 360.
It is suggested that the requirements of due process of law for substituted service, as interpreted by the United States Supreme Court, have been modified since the decision in Old Wayne Mutual Life Ass’n v. Mc-Donough, supra. There is no doubt that they have at least been clarified. In International Shoe Co. v. Washington, 326 U. S. 310, it was beld that a course of activity consisting merely of the solicitation of business by salesmen, which was admittedly less than the “ doing of business”, in Washington enabled that state to subject the foreign corporation to personal. jurisdiction based on constructive service. In Travelers Health Ass’n v. Virginia, 339 U. S. 643, 70 S. Ct. 927, decided June 5, 1950, the theory of the International Shoe Co. case was extended to permit the State of Virginia to exercise jurisdiction over a Nebraska insurance company which was engaged in extensive mail order solicitation of insurance business in Virginia. The major difference between the Virginia case and the case now before us is that in the Virginia case it was shown by evidence that the Nebraska company had for many years been soliciting “memberships” in Virginia by mail, that it had about 800 Virginia policyholders, and had been investigating claims in Virginia and otherwise servicing policies there. The cause of action sued itpon arose out of the Nebraska company’s activities conducted in Virginia. The case now before us, in contrast, involves action on a policy issued in California by a company which, as far as we can discover from the evidence, had never solicited business, by mail or otherwise, nor done any other acts in Arkansas at the time this ’cause of action arose. The effort thus to impose' local jurisdiction upon a non-appearing, non-consenting foreign corporation which has engaged in no activity in Arkansas, in a suit on a cause of action which arose outside the state, cannot be successful.
(2) A separate ground upon which plaintiff seeks to uphold the judgment below is that the defendant entered a general appearance wliich subjected him to the Arkansas court’s jurisdiction without limitation.
The pleading from which this general appearance is sought to be discovered is headed “Motion to Quash Service of Summons and to Require Plaintiff to Specifically Allege Matters Thereto Related.” It begins with a statement that the defendant “without entering its appearance . . . appears specially and for the sole and only purpose of quashing service of summons.” But it then proceeds to ask that plaintiff be required to allege whether defendant is a foreign or domestic corporation, in what state defendant is domiciled, what unauthorized business defendant has done in Arkansas, and where the insurance contract sued upon was entered into. Then follows a further prayer that, after plaintiff furnishes this information, the service be quashed for lack of jurisdiction under the Fourteenth Amendment in accordance with the information thus to be furnished. Three days later, before any further- action was taken in the case, defendant filed a “Supplemental Amendment to Motion to Quash Service of Summons” in which, asking no new questions, he answered for himself the four questions asked of the plaintiff in the first motion, and renewed the motion to quash.
Later pleadings filed by defendants included an answer, a substituted answer, and a motion to make more definite and certain. In each of these, and in the stipulation of facts, defendant carefully preserved his objections to the jurisdiction. We have held that a defendant may, after duly making a special appearance objecting to the jurisdiction, appear on the merits with the jurisdictional question expressly reserved, and retain the right to present the issue of jurisdiction on appeal. Sinclair Refining Co. v. Bounds, 198 Ark. 149, 127 S. W. 2d 629.
Plaintiff’s position, however, is that the original motion to quash, as filed by defendant, was so broad that it amounted to a motion to make more definite and certain which, as held in Searcy Wholesale Grocery Co. v. Balts, 209 Ark. 620, 192 S. W. 2d 111, itself was a general appearance.
We do not think that the motion filed by defendant here had the same effect as that filed in the Balts case. The Balts motion was headed “Motion to Make More Definite and Certain”, and in holding that it constituted a general appearance McHaney, J., pointed ont that the “motion did hot question in any way the jurisdiction of the court.” In contrast, the whole purpose of the motion filed by the defendant here was to question the jurisdiction of the court, and the requests for additional information were specifically directed to the jurisdictional issue and that issue alone. We hold that these requests for information relevant to the motion to quash for lack of jurisdiction did not themselves confer jurisdiction.
The judgment is reversed and the cause is dismissed.
Plaintiff argues that a provision in the policy making premiums payable by deposit at any bank or trust company in the United States constituted doing business through its agents (banks and trust companies) in Arkansas. But no instance of premiums actually being paid to an Arkansas bank or trust company was shown, therefore this possibility of “doing business” in Arkansas was not an issue in the case.
These cases are to be distinguished from others in which, by actually appointing an agent to receive service, the defendant foreign corporation is deemed to have consented to service on the designated agent in causes of action in favor of residents of this state arising in other states while business was being done in this state. See American Ry. Expr. Co. v. H. Rouw Co., 173 Ark. 810, 294 S. W. 401; Yockey v. St. L.-S. F. Ry. Co., 183 Ark. 601, 37 S. W. 2d 694; Equitable Life Assur. Soc. v. Mann, 189 Ark. 751, 75 S. W. 2d 232. The case of Scottish Union & Nat’l Ins. Co. V. Hutchins, 188 Ark. 533, 66 S. W. 2d 616, which might appear to be contradictory, must be read in the light of Protas v. Modern Investment Corp., 198 Ark. 300, 128 S. W. 2d 360, cited above.
A statute providing for service in Arkansas on this theory was thereafter enacted, in Act 347 of 1947, Ark. Stats., § 27-340. See 3 Ark. L. Rev. 22-24. There are many cases, both in Arkansas and elsewhere, holding that a state may base jurisdiction upon the doing of the act (less than “doing business”) out of which arises the cause of action sued upon. See Highway Steel & Mfg. Co. v. Kincannon, J., 198 Ark. 134, 127 S. W. 2d 816; Chapman Chemical Co. v. Taylor, 215 Ark. 630, 222 S. W. 2d 820; Johns v. Bay State Abrasive Products Co., 89 Fed. Supp. (D. Ct., Md.) 654. | [
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Darrell Hickman, Justice.
This is a medical malpractice case. The jury returned a verdict in favor of the defendant medical doctor and we affirm.
On appeal two arguments are made for reversal: First, that the trial court wrongly prevented the appellants from presenting evidence on all theories of liability; second, that the court refused to permit certain cross-examination of a doctor testifying for the appellee. We find no merit to either argument.
The appellee, Dr. Spencer D. Albright, a dermatologist practicing in Fayetteville, Arkansas, had extensively treated the appellant for skin cancer. Mr. Shamblin had a long history of serious damage to his face from the sun. In 1975, Dr. Albright performed cryosurgery on a skin cancer on Mr. Shamblin’s face. Apparently it was not healing well and Mr. Shamblin returned to Dr. Albright many times. Dr. Albright did not perform another biopsy. Eventually, Mr. Shamblin sought a second opinion from a Dr. Shadid and it was determined that Dr. Albright’s treatment was not successful and that cancer persisted.
Shamblin sued Albright for malpractice in the treatment of his cancer. His wife joined in the suit. The trial court entered a pre-trial order almost a year before trial specifically limiting the issue of liability to whether Dr. Albright should have ordered an additional biopsy after the cryosurgery. That was to be the sole issue in determining whether Dr. Albright was guilty of malpractice.
Well into the trial, the appellant sought to question Dr. Vernon Carter about whether he would use cryosurgery on a lesion as large as ten millimeters. An objection was timely made and the attorneys discussed at length with the court whether this was at variance from the court’s pre-trial order. The trial court ruled that it was at variance and prohibited the inquiry. It was not a broad arbitrary order but, indeed, a specific one. There is no doubt it was entered well before the trial with notice to both parties. The order noted the names of the attorneys present for both parties when the order was made. There was no exception made to the order until it came up during the cross-examination of Dr. Carter. Such pre-trial orders, permitted by ARCP, Rule 16, are valuable tools in handling litigation in an orderly and efficient manner. We find no abuse of discretion by the court in limiting the appellant to his theory that the appellee was negligent because he failed to order another biopsy.
The second issue concerns the cross-examination of Dr. Thomas Jansen, a dermatologist who testified for the appellee as an expert. During his cross-examination appellant sought to show that Dr. Jansen had a financial interest in the outcome of the case. In-camera the doctor was asked whether he had such an interest and Dr. Jansen said that he did not. He was then asked if a judgment was entered against Dr. Albright whether it would cause Dr. Jansen’s insurance rates to rise. Dr. Jansen essentially answered that he was not sure, and said, “I suspect that any suit that is found in favor or against the insurance company causes an adjustment in experience; . . . . ”
We cannot say the trial court abused its discretion in preventing this line of cross-examination. The specific argument that Dr. Jansen’s malpractice insurance might go up was considered too speculative by the trial court and any value that might be attached to it would be far outweighed by a prejudicial impact. We cannot say the court abused its discretion in finding that it was not proper relevant evidence that the appellant was entitled to present to the jury to show bias and prejudice. Firestone Tire & Rubber Co. v. Little, 276 Ark. 511, 639 S.W.2d 726 (1982). The appellant was allowed to ask the doctor in front of the jury how much he was paid to testify and who would pay him. He answered that his fee would be $5,000 to $6,000 and Dr. Albright would pay him.
We find no prejudicial error.
Affirmed.
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M cHaney, J.
Appellee sued appellants on two promissory notes representing the 'balance of the purchase price of an automobile, to which title was retained, and which was in the possession of appellant Bandle. An order was issued, in the nature of an attachment, directing the sheriff to take possession Of the property, and hold same subject to the orders of the court in accordance with §§ 8729 and 8730, O. & M. Digest. The car was taken and service had on both appellants. Thereafter appellant Nash answered denying that he signed the notes and all other allegations in the complaint as to him. On the same day this answer was filed, appellee applied for and was granted an order of court directing the sheriff to sell the automobile on the ground that it was perishable, highly, depreciable and expensive to store and care for. Sale was made in accordance with the order of court, and the sheriff reported that he had sold it to appellee for $100 which was credited on the notes. All this took place in November and December, 19i29. In March, 19301, appellant Nash filed an amendment to his answer admitting that he signed said notes, but that he- did not intend to become a party thereto or to be bound; that he signed same at the request of appellee’s manager, who told him that he did not know Randle, .but knew him and wanted him to sign so that he could locate or communicate with Randle when the notes became due. He further alleged lack of consideration for his signature in that the sale to Randle had been completed, the car delivered, the notes signed by Randle and delivered to appellee before he signed. Appellant Randle filed, on the same date, an answer and cross-complaint. He admitted the purchase of the car by him, the execution of the notes, their non-payment, and denied that Nash signed the notes or that he was concerned in the purchase of the car. For his cross-complaint he alleged that it was the duty of the sheriff to hold the car, and not sell same before a final hearing; that the sale was wrongfully had before a final hearing, without notice to him, and that the sale under the circumstances amounted to a conversion of the property to his damage in the value of the car. Demurrers were interposed and sustained to both answers. Appellants declined to plead further and the cause proceeded to trial on appellee’s complaint and its evidence which resulted in a directed verdict for appellee for the sum sued for, and the fixing of a purchase money lien on the car and the proceeds of the sale of same.
As to appellant Randle’s cross-complaint, there can be no doubt that he has no right to complain of the sale of the car and the price it brought at the sale. At the same time he was served with a summons in the action, November 16, the car was taken from his possession by 'a writ of attachment under § 8730,0. & M. Digest. At the time of filing the petition for an order of sale, same was served on counsel, for appellant Nash, the only defendant who had answered, although thirty days had elapsed Prom the date of service and repossession of the car, and no answer filed for appellant Randle, and none was filed until March 6, 1930. Under the allegations of the petition for the order of sale, heretofore set out, the court had the right to make the order so that the value of the property might be preserved and not wasted in depreciation and expense of storage and care. Under snch circumstances it was the duty of the court to order the sale for the preservation of the fruits of the litigation, especially in view of the fact that appellant Bandle had not controverted the right of appellee to the car, and to- subject it to the enforcement of a purchase money lien.
As to appellant Nash, the court correctly sustained the demurrer to the answer as amended, as it failed to state a defense, and also in sustaining objections to testimony in support thereof, as being violative of the párol evidence rule. According to appellant’s abstract of his answer, “he alleged that, while it was true his name was on said notes, he did not sign the same as a party thereto; that he signed same at the request-of B. E. Dove, the manager of appellee, who represented to him that he did not know Bandle, but did know defendant (Nash), and wanted him (Nash) to sign the notes so that he (Dove) could communicate with defendant when- the notes matured and defendant could notify Bandle.” Proof was offered in support of this allegation and excluded. There is no charge of fraud or trickery in obtaining his signature to the note, but the allegation simply means that, although he signed the note, there was a contemporaneous oral agreement that he should not be bound, but that he signed for reference merely. Under such circumstances thé rulé is that parol evidence is not admissible to contradict or vary the written instrument, which appellant Nash sought to do. In Frits v. Frits, 32 Ark. 327, it was held that ah answer to a suit on a note, -purporting to have been executed by defendant, alleging that she-could hot read or write, and that if she signed the note she did not know that it was a note, stated no defense. In Lawrence County Bank v. Arndt, 69 Ark. 406, 65 S. W. 1052, we held, to quote a syllabus: “"Where the- only evidence on the face of the promissory note that the persons sighing did not intend to bind themselves personally was the suffix to their signatures of some designation of agency, as by signing themselves, respectively, as president, vice- president, secretary, and treasurer, without stating for whom or for what company they were acting, they are liable personally, and cannot as a defense show by parol evidence that they intended to bind a certain corporation for which they were acting". ’ ’ This case has been many times followed. See Bank of Corning v. Nimnich, 122 Ark. 316, 183 S. W. 756 Ann. Cas. 1917D, 566 ; United Drug Co. v. Bedell, 145 Ark. 96, 223 S. W. 372 ; Shanks v. Clark, 175 Ark. 883, 300 S. W. 453 ; First National Bank of Jonesboro v. J. H. Snyder Mfg. Co., 175 Ark. 1134, 1 ■S. W. (2d) 817. In the last case above cited, we said:
“This court has often decided that parol evidence cannot be admitted to vary the terms of a written contract or to show a contrary intention than that disclosed by the instrument unless there is an ambiguity. This rule has been applied in the case of promissory notes. Lawrence County Bank v. Arndt, 69 Ark. 406, 65 S. W. 1052. In that case the only evidence on the face of the promissory note that the persons signing it did not intend to bind themselves personally was the affixing- to their signatures of some designation of agency, as by signing themselves, respectively, as president, vice-president, secretary and treasurer, without stating for whom or for what company they were acting-. Under these circumstances they were liable personally, and could not, as a defense, show by parol evidence that they intended to bind a certain corporation for which they were acting. ’ ’
There is no ambiguity in the note now under consideration, and parol evidence cannot be resorted to to vary its terms. Therefore the answer was open to demurrer, and the proffered testimony inadmissible. The .judgment is accordingly affirmed.
Kirby and Mehaffy, JJ., dissent. | [
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George Rose Smith, J.
Last year the City of Dierks adopted an ordinance requiring property owners to pay an annual sanitation tax of $4 for each business bouse and dwelling in the city, this revenue to be used for fogging tbe city with an insecticide three times a year. L. C, Holman appeals from a $25 fine that was imposed by the circuit court upon Holman’s refusal to pay the tax.
It is contended that the ordinance was not regularly passed and that it is unconstitutional even if validly enacted. As to the first contention it is shown that the ordinance was introduced at a city council meeting on January 21 and was unanimously adopted by all members of the council. Appellant argues that the minutes of the meeting are defective in failing to recite that two-thirds of the aldermen voted to suspend the rules and to read the proposed measure a third time, as the statute permits. Ark. Stats. 1947, § 19-2402. We have held, however, that the legal effect of unanimous action by the council is to dispense with the need for formally suspending the rules. Young v. City of Gurdon, 169 Ark. 399, 275 S. W. 890. Nor is there merit in the contention that the failure to record the names of those voting for and against the ordinance is fatal to its validity. In the case of municipalities this requirement applies only to ordinances authorizing the execution of contracts. Ark. Stats., § 19-2403; White v. Town of Clarksville, 75 Ark. 340, 87 S. W. 630.
Upon the constitutional issue Holman takes the position that the city, having already levied its entire ad valorem tax of five mills, is without power to levy an additional tax of $4 upon each building in the city. Ark. Const., Ai’t. 12, § 4. While the ordinance refers to this levy as a tax, it is actually not a tax but a charge for services to be rendered. The city proposes to spray the property of its citizens and to charge the cost of this operation against those who reoeive its benefits. Such a fee for the performance of a service is not taxation. Cooley on Taxation (3d Ed.), p. 5.
The most serious question in the case is whether the city has been given the power to perform the proposed services and to charge a fee therefor. On this issue we think our decision in Geurin v. City of Little Rock, 203 Ark. 103, 155 S. W. 2d 719, to be controlling. There the city council created an agency to collect rubbish and garbage throughout the city and provided a schedule of fees to be paid by those receiving this collection service. We held that the city’s delegated power to “prevent injury or annoyance . . . from anything dangerous, offensive or unhealthy” (Ark. Stats., § 19-2303) authorized the procedure chosen. If the sanitary disposal of rubbish and garbage is necessary to prevent injury from things dangerous, offensive or unhealthful, the same principle certainly applies to the extermination of flies, mosquitoes, roaches, and other pests that may cause or transmit disease.
There is some suggestion that an exaction levied in the same amount against the owner of every building-may discriminate unreasonably as between the owners of large and of small buildings or as between the owners of improved and of unimproved property. There is, however, no proof concerning the relative sizes of buildings in Dierks, the relative amounts of improved and unimproved property, or the relative benefits that will accrue to those who own buildings and to those whose property is unimproved. It may be that the classification selected by the council is a reasonable one, and in the absence of evidence to the contrary we are unwilling to say that the presumption of constitutionality has been overcome.
Affirmed. | [
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Minor W. Millwee, Justice.
John Haller prosecutes this appeal to reverse a judgment of conviction against him for the crime of incest. There is no hill of exceptions. The first ground relied upon for reversal is that the court erred in overruling a demurrer to the information.
The information reads: “I, H. G. Partlow, PROSECUTING ATTORNEY WITHIN AND FOR THE SECOND JUDICIAL CIRCUIT OF THE STATE OF ARKANSAS, of which Greene County is a part, in the name and by the authority of the State of Arkansas, on oath, accuse the defendant, John Haller of the crime of incest committed as follows, to-wit: The said defendant on numerous and divers occasions between August 24, 1946, and August 24, 1949, in Greene County, Arkansas, did unlawfully, feloniously and iucestuously commit fornication with one Retlia Haller, by then and there feloniously and incestuously having carnal knowledge of her, the said Retha Haller, the said John Haller and she, the said Retha Haller, then and there being father and daughter, and the said John Haller and Retha Haller both being-unmarried persons; against the peace and dignity of the State of Arkansas.”
It is earnestly insisted that the information is fatally defective because of the failure to allege a specific date upon which the crime was committed and that it amounted to a charge of many separate and distinct offenses in violation of Ark. Stats., § 43-1009. This section provides that an indictment must charge but one offense except in cases mentioned in § 43-1010.
The common law rule is that an indictment or information must charge the offense as having been committed on a day certain. Under the statutes of many states, including our own, the precise time of the offense is immaterial and need not be stated except where time is an ingredient of the offense. Ark. Stats., § 43-2015, provides: “The statement, in the indictment, as to the time at which the offense was committed, is not material, further than as a statement that it was committed before the time of finding the indictment, except where the time is a material ingredient in the offense. ’ ’ This court has held that an error in an indictment in setting forth a future or impossible date as the time of the commission of the offense is not fatal. Conrand v. State, 65 Ark. 559, 47 S. W. 628; Taylor v. State, 169 Ark. 589, 276 S. W. 577. We have also held that the indictment is not demurrable where it fails to state the date of the alleged offense and contains an allegation that it was committed on a blank date. Grayson v. State, 92 Ark. 413, 123 S. W. 388, 19 Ann. Gas. 929; Threadgill v. State, 99 Ark. 126, 137 S. W. 814; Oakes v. State, 135 Ark. 221, 205 S. W. 305; Cook v. State, 155 Ark. 106, 244 S. W. 735.
In Venable v. State, 177 Ark. 91, 5 S. W. 2d 716, we held that time was not a material ingredient of the of fense of carnal abuse except to show that, at the time of the commission of the offense, the prosecutrix was under 16 years of age. The age of a prosecutrix is not involved in the case at bar and time is not a material ingredient of the offense.
Incest is a statutory offense which has been defined generally by the authorities as consisting of sexual intercourse, either habitual or in a single instance, and either under a form of marriage or without it, between persons too closely related to intermarry. Bishop’s Statutory Crimes, § 727; 27 Am. Jur., Incest, § 1; 42 C. J. S., Incest, § 1; Underhill’s Criminal Evidence (4th Ed.), § 650. The rule that one offense only can be charged in one count of an indictment or information does nqt preclude the charge in the same count of several acts relating to the same transaction and together constituting only one connected charge or offense. 27 Am. Jur., Indictments and Informations, § 124. While it is true that each act of sexual intercourse may be made a separate offense, the effect of the information in the instant case is to charge appellant with but one offense of incest committed by a series of acts amounting to habitual sexual intercourse with his daughter over the three-year period stated in the information. We conclude that the trial court did not err in overruling the demurrer to the information.
It is next contended that the court erred in denying defendant’s motion for a bill of particulars. This motion sought to require the state to specify the dates, places and the names and addresses of all persons present when appellant was accused of committing the crime. The information alleges that the crime was committed within the jurisdiction of the court and was, therefore, sufficient as to place.
The question whether the state should have been required to specify a certain day upon which the crime is alleged to have been committed presents a more serious matter. It would have been the better practice for the court to have required the state to specify, or approximate, a particular date. As previously indicated, the information in effect charged incest by habitual intercourse over the three-year period.
Appellant argues: “It might very well be true that* an accused was hundreds of miles from the scene of a crime when it was supposedly committed. If the accused has no idea as to when the alleged crime was committed, how on earth could he be prepared to show his own whereabouts'? It is not reasonable to suppose that a defendant can be prepared at the drop of a hat to prove where he was on just any given day of a period of three years.” If appellant suffered such prejudice in the instant case, it could have been readily shown by a bill of exceptions. The evidence is not before us and the record furnished discloses no motion for continuance or plea of surprise on account of the proof offered by the state.
Ark. Stats., § 43-1012, provides: “No indictment is insufficient, nor can the trial, judgment, or other proceeding thereon, be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits.” § 43-804 provides that the bill of particulars shall state the act relied upon by the state in sufficient detail as formerly required by an indictment. In Brockelhurst v. State, 195 Ark. 67, 111 S. W. 2d 527, a denial for a request for a bill of particulars was upheld and the court said: “It will be seen from the information filed, above quoted, that it set out in detail ‘the act or acts’ upon which the state relied for a conviction, and contained all the requirements of the former statute to make a good indictment had it been returned by a grand jury. So, appellant had a bill of particulars in the information on which he was tried, and it would have been a useless thing to require another. The court, therefore, properly denied this request.” See, also, Bryant v. State, 208 Ark. 192, 185 S. W. 2d 280.
The information in the case at bar charges th,e crime of incest in the language of the statute and in sufficient detail as required by an indictment prior to the enactment of Ark. Stats., § 43-1006. The face of the record fails to disclosé any defect which tends “to the prejudice of the substantial rights of the defendant on the merits.”
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Holt, J.
A brief history of the background of this litigation reveals that in 1927, E. L. and L. A. Grimes' executed their note in the amount of $1,666.66, — secured by a deed of trust on 80 acres of the land involved here, —to J. P. Harris. Thereafter, Harris pledged this note and security to appellees, — retail grocers in El Dorado,— to secure a debt of $1,157.69 which he owed appellees. April 9,1930, upon default, appellees brought foreclosure proceedings against Harris and E. L. and L. A. Grimes. No final decree was taken, but during the pendency of this action, an adjustment was arranged whereby the Grimes on May 6th, 1930 executed a note for $1,514.14 to Dr. W. B. Johnson, due January 1, 1931, and as security a deed of trust on the above 80 acres together with an additional 40-acre tract. The above foreclosure suit against Harris and E. L. and L. A. Grimes was dismissed without prejudice on May 6,1930, the same day on which the note and deed of trust were executed to Johnson. The Grimes defaulted on their note to Johnson and on February 19,1931, Johnson assigned said note and security to appellees, who on February 25, 1931, filed suit to foreclose. March 23, 1931, this latter suit was dismissed and on this same day E. L. and L. A. Grimes executed to appellees the two instruments involved here, an unconditional warranty deed to the 120 acres above for a consideration of $1,605.62 and on the same date, an option contract to repurchase for $1,605.62 within two years.
January 26,1949, the Grimes brought this suit, alleging, in effect, that the warranty deed and “option” of March 23, 1931, above, constituted, when taken together, an equitable mortgage to secure a subsisting debt, that they had an oral agreement with appellees, at the time, that if the Grimes failed to exercise their option within the two year period, then the parties would resume the relationship of mortgagors and mortgagees, and appel-lees would take possession of the land and credit the Grimes with rents and profits until the debt was fully paid.
Appellees answered with, a general denial and specifically pleaded as a bar, laches and limitations. From a decree in favor of appellees is this appeal.
Since the decree, E. L. Grimes having died, the cause has been properly revived in the name of the Adiminis-trator of his estate.
Appellants thus state the issues: “Two, and only two, important questions of law are determinative of this case. First; whether or not the transactions herein involved constitute a mortgage; and second: if they did constitute a mortgage, whether or not plaintiffs are barred by laches or limitations from claiming the property.”
After a review of the record presented, we have reached the conclusion that, in the circumstances, appellants have delayed too long in bringing suit and are barred by laches. It therefore becomes unnecessary to decide their first contention above.
In addition to the above facts, it appears that at the time of the execution of the deed and option in question, the land involved had a market value of from $10 to $12 per acre, and when the present suit was filed, the value, due to nearby oil activities, had increased to about $150 per acre.
Appellees took, and have held possession from 1933 (following the expiration of the two year option period) to the present time and have paid all taxes since the execution of the deed and option. Appellants have paid nothing on the debt, and moved from the property to Pine Bluff some time in 1933, and appear not to have lived in Union County since. Appellants at no time between 1933 and the date the suit was filed in 1949, asked for any report or accounting from appellees.
It further appears that the attorney, John Carroll, who handled the above transactions between appellees and appellants died in 1936, and Dr. Johnson, to whom the last deed of trust, above, was executed by appellees, died about the same year, approximately 13 years before this suit was begun, and in the meantime, as pointed out, the property here has increased in value from about $12 per acre to $150. So for about 16 years, appellants have stood by and have shown a complete lack of diligence in asserting any rights that they might have had. Because of appellants’ long and unreasonable delay, appellees have been denied the testimony of both attorney Carroll and Dr. Johnson as to all the facts relating to the above transactions.
“Laches in a general sense is the neglect, for an unreasonable and unexplained length of time, under circumstances permitting diligence, to do what in law should have been done. More specifically, it is inexcusable delay in asserting a right; an unexcused delay in asserting rights during a period of time in which adverse rights have been acquired under circumstances that make it inequitable to displace such adverse rights for the benefit of those who are bound by the delay; such delay in enforcing one’s rights as works disadvantage to another; such neglect to assert a right as, taken in conjunction with lapse of time more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity; an implied waiver arising from knowledge of existing conditions and an acquiescence in them; acquiescence in the assertion of adverse rights and undue delay on complainant’s part'in asserting his own, to the prejudice of the adverse party.” 30 C. J. S., p. 520, § 112.
“The doctrine of laches is founded on the equitable maxims of ‘he who seeks equity must do equity’ and ‘equity aids the vigilant.’ Hence while there is a great variety of cases in which the equitable doctrine is invoked, each case must depend upon its own particular circumstances and courts of equity have always discouraged laches and delay without cause. * * * It is well settled, however, that he, who, without adequate excuse delays asserting his rights until the proofs respecting the transaction out of which he claims his rights arose are so uncertain and obscure that it is difficult for the court to determine the matter, has no right to relief.
50 where on account of delay the adverse party has good reason to believe that his alleged rights are worthless or abandoned, where because of the change in condition or relations of the property and parties during the period of delay it would be an injustice to allow the complainant to assert his rights, or in case of intervening equities, it is generally held that laches is a bar to the relief if sought. Casey v. Trout, 114 Ark. 359, 170 S. W. 75; Finley v. Finley, 103 Ark. 58, 145 S. W. 885; Tatum v. Arkansas Lumber Co., 103 Ark. 251, 146 S. W. 135; Davis v. Harrell, 101 Ark. 230, 142 S. W. 156; Rhodes v. Cissell, 82 Ark. 367, 101 S. W. 758; Williams v. Bennett, 75 Ark. 312, 88 S. W. 600, 112 Am. St. Rep. 57; Thomas v. Sypert, 61 Ark. 575, 33 S. W. 1059; and Gibson v. Herriot, 55 Ark. 85,17 S. W. 589, 29 Am. St. Rep. 17, 444.
“Judge Brewer, who afterwards became an Associate Justice of the Supreme Court of the United States, said while on the circuit, ‘No doctrine is so wholesome, when wisely administered, as that of laches. It prevents the resurrection of stale titles, and forbids the spying out from the records of ancient and abandoned rights. It requires of every owner that he take care of his property, and of every claimant, that he make known his claims. It gives to the actual and larger possessor security, and induces and justifies him in all efforts to improve and make valuable the property he holds. It is a doctrine received with favor because its proper application works out justice and equity and often bars the holder of a mere technical right, which he has abandoned for years, from enforcing it when its enforcement will work large injury to many. ’ Naddo v. Bardon, 51 Fed. 493, 2 C. C. A. 335.” Norfleet v. Hampson, 137 Ark. 600, 209 S. W. 651.
We also said in Daniels v. Moore, 197 Ark. 727, 125 3. W. 2d 456: “Appellants should be denied a recovery on account of their inexcusable delay in bringing their suit. The first deed to the 40-acre tract was executed in 1922 and the second in 1923 and according to appellants’ contention the debt was paid in 1926. This suit was not filed until September 25, 1937, more than fifteen years after the execution of the deed and more than eleven years after the time when appellants claimed that J. B. Moore was paid for his services. J. B. Moore died in 1926 and appellees herein have been deprived of his testimony as to the true nature of the original transactions and because of appellants’ delay it has, of course, become difficult for the Moores to prove just what the original transactions were. On account of this unnecessary delay and the loss of the testimony of. J. B. Moore who might speak relative to the original transactions the doctrine of laches should be applied.”
Accordingly, the decree is affirmed. | [
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George Rose Smith, Justice.
In January, 1980, the appellant Snow, engaged in the business of drilling water wells, purchased a drilling rig under an installment contract reciting a cash price of $283,500 and finance charges of $118,786.20, the total being payable in 60 equal monthly installments. Snow had difficulties with the rig’s performance from the outset. Two months after the purchase Snow had his attorney send a letter to the sellers electing to revoke his acceptance of the rig and demanding the return of his $40,228.62 down payment. The sellers refused to recognize Snow’s right to revoke his acceptance. On April I Snow brought this suit in equity to obtain revocation of the sale, recovery of the down payment, and substantial damages for loss of profits during the two months he used the rig.
After an extended trial the chancellor held that the contract was not usurious as charged, that Snow was not entitled to revoke his acceptance, that Snow’s $10,000 note for part of the down payment should be canceled, that Snow should recover $6,015 for breach of the implied warranty of merchantability, and that Snow is liable for a deficiency judgment of $62,293.89 resulting from a sale of the rig during the pendency of the case. We can best state the pertinent facts as we discuss the points argued on direct and cross appeal.
Snow first argues that the contract, embracing an interest rate of more than 10%, was usurious because the recitation that it was to be governed by Georgia law was a subterfuge to avoid Arkansas usury laws.
Wé find no merit in this argument. The Uniform Commercial Code provides that when a transaction bears a reasonable relationship to the particular enacting state and also to another state, the parties may agree that the law of either state shall govern. Ark. Stat. Ann. § 85-1-105 (1) (Add. 1961). Here four states were directly involved: Arkansas, where the contract of sale was negotiated between Jack Wilkes, the president of an Arkansas drilling supply company, and Snow, a resident of Everton, Arkansas; Tennessee, where the actual seller, Tennessee Well Supply Company, a dealer, had the rig for sale, and where Snow and Wilkes went to sign the contract documents; Georgia, where the finance company, C.I.T. Corporation, had its principal office and completed the sale by signing the documents; and Kansas, where the rig was delivered and used by Snow as best he could before he sought revocation of his acceptance.
The whole transaction was contingent upon C.I.T.’s willingness to finance it. C.I.T. insisted that the contract be governed by Georgia law, a provision that in C.I.T.’s,words was “not negotiable.” All the parties agreed to it. With the transaction having a direct connection with four states, we cannot say that the choice of Georgia law was not a reasonable one. We may refer to our discussion in Cooper v. Cherokee Village Develop. Co., 236 Ark. 37, 364 S.W.2d 158 (1963), where, as here, we found that the selection of another state’s law was not a cloak to avoid Arkansas’s usury laws.
We must, however, sustain Snow’s principal argument, that the chancellor was mistaken in refusing to give effect to Snow’s revocation of his acceptance of the rig. In reaching his conclusion the chancellor relied, in part, upon Snow’s failure to tender the return of the rig when he filed his complaint and his continued refusal to return 1,500 feet of pipe and other accessories, valued at a total of $47,485.
A tender of goods purchased was a condition to the right of rescission under our earlier law, but the Uniform Commercial Code dropped that requirement. We quote from one treatise on the Code:
A tender of the goods by the buyer to the seller is not an essential element of revocation. All that is required by the Code is a notification of revocation. The Code declares that notification is .not effective until notice is given and by necessary implication states that there is a sufficient revocation of acceptance when a “notice” is given even though the buyer still has possession of the goods and even though he does not make any tender of the goods to the seller. The concept of revocation of acceptance is not to be confused with rescission.
# # # # #
If the buyer has paid for the goods in advance or has incurred any expense or damages for which the seller is liable, the buyer, upon making a rightful revocation of acceptance is entitled to hold the goods until he has been paid. That is, the Code in such a case gives the buyer a security interest in the goods.
Anderson, Uniform Commercial Code, § 2-608.18 (2d ed. 1971); Ark. Stat. Ann. § 85-2-608.
The chancellor’s alternative and principal ground for his decision was that the defects in the rig were not sufficient to substantially impair its value to Snow, as required by the Code. § 85-2-608 (1). The decree denied revocation but awarded Snow $6,015 as damages for breach of the implied warranty of merchantability.
We cannot agree with the chancellor’s decision. When Snow bought this rig, a model T685, he already had a model T64, also manufactured by the appellee Schramm, Inc., brought into the case by Tennessee Well Supply as a third-party defendant. During the negotiations Wilkes represented that the later model was superior to the older T64. This did not prove to be true.
Snow and his wife, who worked with him in the business, thought the new rig was idle for 46 days between its delivery on January 15 and the notice of revocation on March 11. Snow testified that the T64 would drill a 1200-foot hole in a day and a half, but he drilled only six holes with the T685 while he tried to use it. Not only did it drill too slowly, it was continually down for necessary repairs. We make no effort to describe all the defects, which were usually referred to by the witnesses in terms too technical for our comprehension. Snow’s testimony was corroborated by that of others in the same business who had used both models. Wilkes showed that he sent his repairman to work on the rig when Snow complained, but the repairs were evidently not effective. It is apparent that neither Wilkes nor Tennessee Well Supply brought the complaints to the attention of Schramm, the manufacturer.
The really decisive testimony is that of Schramm’s expert repairman, Dante DeCecco, who certainly knew more about the rigs than any other witness. DeCecco did not see the T685 in question until it was surrendered in October, 1980, and taken to Wilkes’s place of business for repair. There DeCecco spent a week modifying and repairing the rig. He testified that after the T685’s were first marketed the manufacturer found that major modifications were needed. One such modification came out in October, 1979, but it was not on the rig sold to Snow the following January. Here are excerpts from the abstract of DeCecco’s testimony:
The majority of the work I have done on T685’s in the last year has been warranty work. The T685 requires five or six major modifications or engineering changes. These changes were not made on Mr. Snow’s rig until October, 1980. All my modifications on these 50 rigs [mentioned earlier] have been essentially the same. I have been more or less isolated to the T685 changes in the last year and a half. ... Mr. Snow’s rig would have had to be down for about a week to make the modifications that had to do with operational efficiency.
DeCecco also testified that it is the dealer’s responsi bility to notify Schramm when a customer complains. He said he would have come out and spent a week making the repairs to Snow’s rig if the dealer or Snow had called him, but no one did. We conclude that it is shown by the record as a whole, and especially by the testimony of the manufacturer’s own employee, that Snow was entitled to revoke his acceptance of the rig because its non-conformity substantially impaired its value to him.
Snow also argues that the chancellor was wrong in finding that Snow’s claim for lost profits had not been proved sufficiently. Our rule is that such a loss must be established with reasonable certainty. Robertson v. Ceola, 255 Ark. 703, 501 S.W.2d 764 (1973). Here the claim rested largely upon the testimony of interested witnesses, Snow and his wife. The chancellor was in a far better position than we are to weigh their testimony. There was a significant absence of documentary proof of past profits made from the successful drilling of wells similar to those Snow says he would have drilled had the rig functioned properly. Moreover, the plaintiff’s burden was to prove consequential damages "which could not reasonably be prevented.” § 85-2-715. During the two months in question Snow could have used his T64; he offered scant explanation of why that was not done. In our opinion the failure to use the other rig was not a matter of mitigating damages already established but rather one of reasonably minimizing the loss in the first place. As pointed out in paragraph 3 of the Comment to § 85-2-715, the earlier rule is modified “by requiring first that the buyer attempt to minimize his damages in good faith.” We do not find the chancellor’s denial of lost profits to be clearly against the preponderance of the evidence.
Both Tennessee Well Supply and Schramm have cross-appealed from the award of $6,015 for breach of warranty, but since our holding supersedes that award those points are moot. Tennessee Well Supply also cross-appeals from the trial court’s cancellation of Snow’s $10,000 note on the ground that Tennessee Well Supply was an unlicensed foreign corporation doing business in Arkansas when Snow executed the note in Arkansas at Wilkes’s request. Tennessee Well Supply’s president testified that his company had done some business in Arkansas for a few years before 1980; so the chancellor’s ruling was correct under the Wingo Act. Ark. Stat. Ann. § 64-1202 (Repl. 1980).
Reversed and remanded for the entry of a decree giving effect to Snow’s revocation of his acceptance as against Tennessee Well Supply, directing the return of his down payment, charging him with the $47,485 value of the articles he has not returned, and disposing of other remaining matters. | [
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Mehaeey, J.
The Smith-Arkansas Traveler Company was engaged in operating various bus lines out of the city of [Little Rock, Arkansas, and on October 15, 1928, entered into a written contract with the General Tire & Rubber Company under which contract the General Tire & Rubber Company agreed to equip all motor coaches owned and operated by the motor coach operator with General Cord Tires of sizes to be designated. Said tires to be rented by the tire manufacturer to the motor coach operator; the motor coach operator agreed to equip all motor coaches owned and operated by it for at least a minimum of 3,500 miles per motor •coach per month, and the manufacturer reserved the right to require the use of 3,500 miles per motor coach per month in each and every month in which the average tire mileage is less than the guaranteed mileage above. The price agreed on which the motor coach operator was to pay was $0.14 per motor coach per mile. This contract was really a renewal contract continuing the arrangement which had been in effect under similar contracts between the companies for several years.
On January 2, 1929, the Smith-Arkansas Traveler Company sold all its holdings to the Missouri Pacific Transportation Company, the purchaser assuming actual possession on that date. There was a provision in the contract permitting the motor coach operator to use the tires it then had until they were worn out. The contract also provided that, if the motor coach operator desired to dispose of its equipment, the manufacturer would sell outright for cash all the tires on such motor coaches on the basis of the tire manufacturer’s printed dealer’s list in effect at the time of such disposal, less the accumulated mileage already paid for by the motor coach operator on such tires. There are numerous other provisions of the contract which we deem unnecessary to copy here, but attention may be called to some of them in the opinion. This suit was begun by the General Tire & Rubber Company in the Pulaski Circuit Court against the Smith-Arkansas Traveler Company to recover the amount alleged to be due it by the Traveler Company under the terms of the contract. The Smith-Arkansas Traveler Company filed answer admitting the execution of the contract sued on, and- admitting the sale of all its property to the Missouri Pacific Transportation Company, and that the Missouri Pacific Transportation Company continued to operate the coaches with the tires and tubes thereon long after the purchase from the Smith-Arkansas Traveler Company. It denied that there is $11,205.78 due the appellee. It states that it executed a bill of sale to the Missouri Pacific Transportation Company, and that the Missouri Pacific Transportation Company took over all its property, and that all the obligations for tires and tubes were the obligations of the Missouri Pacific Transportation Company, and that said purchaser assumed all liabilities of the Traveler Company under its contract, and that, if the Tire Company was entitled to any sum, it was the obligation of the Missouri Pacific Transportation Company. It asked that the cause be transferred to equity and that the Missouri Pacific Transportation Company be made a party defendant. The Missouri Pacific Transportation Company thereafter filed answer and cross-complaint. It denied liability and alleged that any obligation arising under the contract was the sole obligation of the Traveler Company. It asked that, if any judgment was rendered against it, it have judgment against C. H. Moses, W. A. Smith and Ike Kempner.
As we have already stated, the Smith-Arkansas Traveler Company sold to the Missouri Pacific Transportation Company and delivered to it all of its equipment on January 2. The court entered a decree in favor of the General Tire & Rubber Company against the Smith-Arkansas Traveler Company for $11,013.62 with interest thereon from January 1, 1929, to the date of the decree, amounting to the total sum of $11,674.49. On the cross-complaint óf the Smith-Arkansas Traveler Company against the Missouri Pacific Transportation Company, the chancellor entered a decree in favor of the Smith-Arkansas Traveler Company against the Missouri Pacific Transportation Company for $6,820.03 with interest from February 28, 1929, until paid at the rate of 6 per cent, per annum. The Smith-Arkansas Traveler Company has appealed to this court for a reversal of the judgment against it, and the Missouri Pacific Transportation Company was granted a cross-appeal against the Smith-Arkansas Traveler Company and seeks a reversal of the judgment against it. The court found in favor of C. H. Moses, W. A. Smith and Ike Kempner.
It is earnestly insisted by the appellant, Smith-Arkansas Traveler Company, that its liability to the General Tire & Rubber Company should be computed on the basis of the number of tires on hand on March 1, rather than January 1, and quotes and relies on the following clause of the contract: “If during the life of this agreement the motor coach operator desires to dispose of * * * its fleet or equipment, * * * the tire manufacturer agrees to sell outright for cash all tires on such motor coaches to the motor coach operator on the basis of the tire manufacturer’s printed dealer’s list in effect at the time of such disposal or removal of motor coaches —less the accumulated mileage already paid for by the motor coach operator on such tires.” The clause of the contract is unambiguous, and we think necessarily means that when the coach operator disposes of the equipment he must pay for the tires according to the dealer’s list less the accumulated mileage already paid. This means that when the Traveler Company disposed of the tires to the Missouri Pacific Company, the tire company no longer had any interest in the tires. 'The Traveler Company could permit the purchaser to use them or not, and the Tire Company would have no right except its right to collect the amount due at the time the Traveler Company sold to the Missouri Pacific Transportation Company. The Traveler Company permitted the use of the tires by the purchaser until the first day of March. Under the terms of the contract it then became liable to the Tire Company for the list price of the tires less the mileage paid for or the mileage due up to the time that the Smith-Arkansas Traveler Company sold it to the Missouri P’aoific Transportation Company.
Appellant insists that because the Tire Company brought suit on the theory that the paragraph of the contract 'became operative as of the date the Missouri Pacific ceased using its tires and insisted that the contract should be made as of the date the Missouri Pacific ceased using its tires, it should be bound by this position and should not have been permitted to make the correction when it discovered that the January and February mileage had not been deducted. We do not agree with the appellants in this contention, but think the chancery court adopted the correct method.
The fact that appellee adopted an erroneous theory did not disentitle it to amend and proceed under a correct theory. “It is true that one by his conduct or statements may be estopped from asserting rights which might otherwise have existed, but, before he will be estopped, it must be shown that another has in good faith relied on such conduct or statements and has been thereby led to change his, position for the worse. ” Norton v. Maryland Casualty Co., ante p. 609 ; Hot Springs Golf & Country Club Assn. v. Community Bank & Trust Co., ante p. 715; Thomas v. Spiers, 180 Ark. 671, 22 S. W. (2d) 553. There is nothing in the evidence in this case that tends to show that appellant relied on any statements or conduct and was thereby led to change its position for the worse.
It is contended that the conduct of the Tire Company did not indicate that during January and February it regarded the title to the tires as vested in Smith-Arkansas Traveler Company. Evidently the Smith-Arkansas Traveler Company and the General Tire & Rubber Company wished the Missouri Pacific Transportation Company to assume the contract of the Traveler Company. This would have been advantageous to both of them, and we find nothing in the conduct of the Tire Company to indicate any intention td modify in any way the contract or to waive or relinquish any of its rights under the contract. It is contended, however, that, even if the Missouri Pacific Transportation Company did not agree to run out all the tires as contended by appellant, the record discloses facts sufficient to establish an implied liability to run out all such tires. There was nothing in the conduct of either party that in any way injured the Traveler Company. The decision of these questions, however, depends wholly upon the evidence, and the evidence is conflicting, and we are unable to say that the chancellor’s finding is against the preponderance of the evidence, and in cases where the finding of facts by the chancellor is not against the preponderance of the evidence, such finding will not be disturbed. Under this rule the chancellor’s finding of fact on these questions must be affirmed.
The Missouri Pacific Transportation Company prosecutes a cross-appeal, but it admits that the chancellor ’s finding that the obligation of the Missouri Pacific Transportation Company reached only 161 tires which were on the coaches on January 1, is not clearly against the preponderance of the evidence, but contends that the correct charge against the Missouri Pacific Transportation Company is $2,036.63, and that the amount found by the court is excessive and was on a wrong basis. "We do not agree with this contention. The same may be said of the evidence on this proposition as we have said on the other, that the chancellor’s finding will not be disturbed when not against the preponderance of the evidence. The entire argument of the Missouri Pacific Transportation Company on this question is that the court adopted a wrong or improper basis, and we have reached the conclusion that the court adopted the correct basis. The following is the court’s finding on this issue: “The court finds, on the cross-complaint of the Smith-Arkansas Traveler Company against the Missouri Pacific Transportation Company that the" said Smith-Arkansas Traveler Company is entitled to recover of the said Missouri Pacific Transportation Company the proportion of the said sum for which judgment is herein rendered in favor .of the said plaintiff, General Tire & Rubber Company, that the 161 tires upon the buses bear to the 99 tires that were left in stock after deducting the 86 tires as aforesaid, to-wit: the sum of $6,820.03; and it is considered, ordered and decreed that said Smith-Arkansas Traveler Company have and recover of and from the said Missouri Pacific Transportation Company the said sum of $6,820.03 with interest thereon from the 2iSth day of February, 1929, until paid, at the rate of six per cent, per annum, and its costs, and have execution therefor as at law. ’ ’
We think the above finding is supported by the evidence and is fair and equitable, and the chancellor’s finding, being supported by. a preponderance of the evidence, will not be disturbed by this court.
We have carefully considered all the evidence and have reached the conclusion that the decree is supported by a preponderance of the evidence, and it is therefore affirmed both on appeal and cross-appeal. | [
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Leflar, J.
Defendant McClung was indicted for the crime of involuntary manslaughter on account of the death of Mrs. Fannie Yailes in a highway collision between a truck driven by defendant and another truck in which Mrs. Vailes was a passenger, driven by Jim Vailes, her husband. The trial in Circuit Court resulted in a jury verdict of conviction, with a one-year penitentiary' sentence. Defendant’s appeal is based upon alleged errors in the instructions given and refused by the trial judge.
The evidence given by the prosecution indicated that defendant may have been drunk at the time of the collision, that his vehicle had been weaving from one side to the other of a busy highway for some miles before the collision occurred, and that Yailes, driver of the other truck, had pulled toward the left side of the highway in an effort to avoid defendant’s truck but was struck by defendant who pulled back toward the right side of the road just as he came up to Yailes’ vehicle. This set of facts of course suggested the possibility that negligence in both Yailes and the defendant constituted concurrent proximate causes of the collision and ensuing death.
(1) One point urged by defendant is that he should not be convicted unless Mrs. Vailes’ death was caused solely by his wrongful conduct. This view appears in defendant’s objection to the State’s instruction number 1, given by the Court, also in defendant’s instruction number 3, refused by the Court. The law is otherwise. It has long been well settled that one whose wrongdoing is a concurrent proximate cause of an injury is criminally liable therefor (other elements of liability being present) the same as if his wrongdoing were the sole proximate cause of the harm done. This is true both as against a plea of contributory negligence in the person harmed, Bowen v. State, 100 Ark. 232,. 140 S. W. 28; Benson v. State, 212 Ark. 905, 208 S. W. 2d 767; and a plea of concurring negligence in another, Bishop v. State, 73 Ark. 568, 84 S. W. 707; Taylor v. State, 193 Ark. 691, 101 S. W. 2d 956. Also see 1 Wharton, Criminal Law (12th Ed.), § 204.
(2) Another point urged by defendant is that there was error in instruction number 6, offered by the State. This instruction dealt with concurrent negligence and would have permitted the jury to find defendant guilty, despite the concurring negligence of another, if it found that defendant’s acts “were a necessary part of the chain of acts and that the death would not have been caused except for the unlawful act or acts, if any, of the defendant.” The unsoundness of this instruction is obvious. It is a statement of mere “but for” causation in its crudest form. Under it, a defendant who had a week previously stolen the truck he was driving would be made criminally liable for a death occurring in a collision in which he was not at fault, since “the death would not have been caused except for the unlawful act . . . of the defendant” in stealing the truck which otherwise he would not have been driving. For proximate causation we must find more than that a given result would not have happened but for the prior occurrence of fact “ A”; we must find that fact “A” was a substantial and currently operative factor in bringing about the result in question. See Restatement, Torts, § 431.
In the instant ease, however, there was no evidence of far-fetched and remote causation, as distinguished from evidence indicating acts of the defendant which were substantially and currently operative in producing the collision and death, by which the jury could have been distracted. So long as there was no evidence to which the erroneous instruction could be applied, it is improbable that the defendant would be harmed by it. Other instructions given by the Court made the matter of causation reasonably clear to the jury.
Apart from that, defendant’s objection to instruction 6 was not on the ground that it was an erroneous statement as to what constitutes proximate, causation. The objection was “specifically for the reason that the acts of others might preponderate the acts of the defendant that would be the direct result of the injury and the defendant could not be liable for these acts and for the further reason it is not a correct definition of the law in this case.” This objection did not raise nor call the Court’s attention to the specific error just discussed.
Finally, the transcript in the case does not show that the State’s instruction number 6 was ever given to the jury. Defendant’s brief on appeal assumes that it was given, and argues the point accordingly, but the transcript merely recites the defendant’s objection (quoted above) to the instruction, then moves on to the next instruction. In every other instance in which an instruction requested by either party was given, the fact that it was given is specifically recited in the transcript. Under this state of the record it is permissible to assume that the trial judge quite properly omitted number 6 from the instructions which he gave to the jury.
(3) Defendant argues that there was further error in the State’s instruction number 1, given by the Court, in that it told the jury that defendant might be found guilty if he operated his truck “in a careless and reckless manner,” thus causing the death of Mrs. Vailes. The governing statute, Ark. Stats., § 41-2209, defines the crime of involuntary manslaughter in terms of death ensuing “as a proximate result of injury received by tlie driving of any vehicle in reckless, willful or wanton disregard of the safety of others.” Since the alternative “or” is used in the statute, rather than “and,” there was no error in instructing that the defendant would he guilty if he drove in a ‘ ‘ reckless manner, ’ ’ without mentioning the alternative possibilities of willfulness and wantonness. Omission from the instruction of these additional bases for finding guilt was favorable rather than harmful to the defendant’s cause. Apart from that, the Court in its instruction number 8 read the whole statute (§ 41-2209) to the jury, and also gave to the jury the defendant’s requested instruction number 6, which was: “You are further instructed that criminal negligence, under the involuntary manslaughter statute, is something more than ordinary negligence, which would authorize a recovery in a civil action, but is the reckless disregard of consequences or a needless indifference to the rights and safety of others with a reasonable foresight that injury would probably result.”
In the light of all the instructions given, it is clear that the jury was not misled as to the type of misconduct a defendant must be guilty of to bring him within the involuntary manslaughter statute.
(4) Finally, defendant argues that the Court below erred in modifying defendant’s requested instruction number 4 by including therein a reference to defendant’s “driving under the influence of intoxicants” as a basis for criminal liability for involuntary manslaughter. The State’s instructions 3 and 4, already properly given by the Court, covered the same ground, and defendant’s argument is that the Court’s additional reference to drunken driving in this instruction “unduly stressed” this phase of the case. We cannot agree. Rather, it appears that the modification was necessary in order to bring the requested instruction into line with the other instructions already properly given.
(5) Several other allegations of error are set out in the defendant’s motion for new trial but are not argued in the brief on appeal. We have carefully examined all of them, and have re-read the record in reference to them. Our conclusion is that none of tliem sets forth a valid ground for reversal of defendant’s conviction. *
The judgment of the Circuit Court is affirmed. | [
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George Rose Smith, Justice.
In the course of a criminal trial in the Conway Circuit Court the present petitioner, Felver A. Rowell, Jr., a lawyer in the case, was fined $25 for contempt of court because he asked a witness a particular question after the circuit judge had instructed him not to ask the question. Mr. Rowell, evidently regarding the issue as a matter of principle, seeks a writ of certiorari to quash the court’s order, on the ground that the trial court “could not find petitioner guilty beyond a reasonable doubt of knowingly and intentionally violating an order of the court.” The Court of Appeals transferred the case to us. We uphold the trial court.
At the outset we observe that although the trial judge must be convinced beyond a reasonable doubt that a criminal contempt was committed, that is not the standard of review in this court. We view the record in the light most favorable to the trial court’s decision and formerly sustained that decision if supported by substantial evidence. Dennison v. Mobley, 257 Ark. 216, 221, 515 S.W.2d 215 (1974); Songerv. State, 236 Ark. 20, 364 S.W.2d 155 (1963). Now we sustain the decision unless it is clearly erroneous. ARCP Rule 52. We must also bear in mind the considerations mentioned in Dennison v. Mobley, supra:
Perhaps there is no case in which the [trial] court’s observation of the parties, and their demeanor and conduct, including their manner of speaking and tone of voice, their facial expressions and body movements, can be more important than on a charge of contempt, particularly criminal contempt, of which attitudes of the alleged contemnor can be such an integral part.
We have only a partial record of the two-day criminal trial, near the close of which the asserted contempt of court occurred. Apparently the Morrilton chief of police, Robyn Masingill, was being tried for having removed and converted to his own use certain cans of beer that had been seized and stored in the police department’s evidence room. Debbie Reynolds, a witness for the State, apparently testified that Charles Hesselbein, a former alderman, had also been involved in the removal of the beer. When the State rested its case the trial judge refused to allow Mr. Rowell, as defense counsel, to call Hesselbein as a witness, because his name had not been furnished to the prosecutor. The correctness of that ruling is not before us.
After the defense rested, the State recalled Debbie Reynolds as a rebuttal witness. On her direct examination her pertinent testimony was confined to a diagram which she had prepared, showing the evidence room and the location of the beer in that room. She did not mention Hesselbein’s name or the removal of the beer. On cross examination she was asked if she had testified (during the State’s case in chief) that she held the door of the evidence room open while Masingill and Hesselbein went in and got the beer. She answered that she had merely stood by the door and talked to someone else: “I never said that I held the door back while they got the beer.”
After the State had completed its rebuttal testimony Mr. Rowell said he wanted to call Hesselbein “as a witness on surrebuttal to rebut the location of Debbie’s drawing and also as to . . . which way the door opens and if he had ever been there or not.” The record then continues:
Mr. Tatum [the prosecutor]: Your Honor, I have no objection to him calling him for rebuttal purposes to rebut what was covered on direct.
By the Court: Surrebuttal, that’s right.
Mr. Tatum: But I think counsel should be cautioned to stay within those frameworks and those lines.
By the Court: All right.
Mr. Tatum: I would hate to see a mistrial at this late date.
By the Court: I think we all know the rules of rebuttal and surrebuttal and all that since our law school days, probably the second year of law school, so let’s stay within those boundaries.
Mr. Rowell: I want to, your Honor, but I want the Court to advise and to rule on with me as to how far I can go with reference to whether or not Chester Hesselbein had ever been in that evidence room since he and Robyn were there, I want to go that far.
By the Court: You can do that.
Hesselbein was then put on the stand as a surrebuttal witness. Mr. Rowell showed him Debbie’s drawing of the evidence room and continued:
Q.... [W]ere you ever outside this evidence room, right here?
A. No.
Q. Did Debbie Reynolds ever let you and Chief Masingill in this evidence room?
A. No, sir.
Q. All right, now did you ever enter this door into the evidence room with Robyn Masingill and while Debbie Reynolds was standing outside and carry anything out of that evidence room? [Our italics.]
A. No, sir.
Q. While you were in this evidence room —
Mr. Tatum: Your Honor, may I approach the bench?
By the Court: Yes.
During the ensuing colloquy the prosecutor asked that Mr. Rowell be held in contempt. The court took the motion under advisement.
Ata hearing two weeks later the circuit judge stated that “on two occasions I advised Mr. Rowell not to ask certain questions. Those questions were asked despite my telling Mr. Rowell not to ask them. I consider that to be an act giving rise to contempt, and I’m holding Mr. Rowell in contempt of court for deliberately asking questions I said would not be asked.” In response Mr. Rowell made a detailed statement: “My question went only to the location of the room and its contents, and not with anything else.” Actually the question was, did you carry anything out of that evidence room, which of course would include the beer. Mr. Rowell went on to say: “The question I asked Mr. Hesselbein did not make any direct reference to the beer. I asked him ... if he had ever been in the room and I asked him if he had ever taken anything from the room. . . . The response that I wanted to elicit from the witness, your Honor, was not that he took any beer or whiskey out of there, but whether or not there was a room for him to take anything out of. ... I thought that I could go that far as long as I did not make any direct reference to the beer or the whiskey, which I did not do.” The court evidently did not accept the suggestion that counsel meant to ask whether there was a room for anything to be taken out of — a fact never in dispute.
We have quoted the essential parts of the record and will let it speak for itself. We cannot say that the trial court was clearly in error in finding in its written order that “an act of contempt was committed in its presence by Mr. Felver Rowell by deliberately asking questions which he was instructed not to ask.” The trial judge was warranted in concluding that Mr. Rowell attempted to put before the jury Hesselbein’s statement that he had not carried out the beer, a statement not within the scope of the permitted surrebuttal.
We are not persuaded by the petitioner’s argument that the prosecutor should have objected to the pivotal question and that the judge should have warned Mr. Rowell more specifically than he did. The prosecution almost at once asked for permission to approach the bench to make his objection; the trial judge knew, as we do not, just how promptly that request was made. As for the warning, the court stated that on two occasions Mr. Rowell had been told not to ask certain questions. A third warning was not necessary. Finally, the finding of contempt did not take place in the heat of the trial. That finding was made two weeks after the trial, without any indication either then or earlier that the trial judge acted in anger or even with impatience. His disposition of the matter was not clearly erroneous.
Writ denied.
Purtle, J., dissents. | [
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Kirby, J.,
(after stating the facts). Two errors are assigned for reversal of the judgment, first, for want of proper parties, it being insisted that the mother of the deceased, appellee, was not properly appointed administratrix and not entitled to bring suit; and that the testimony was insufficient to support the verdict.
The statute provides to whom letters of administration may be granted for the survival of causes of action for damages caused by the wrongful act, neglect or default of another, and that such actions shall be brought in the name of the personal representative of such deceased person; such personal representative or administrator being entitled to recover all damages resulting from the wrongful death of the deceased both for the benefit of his estate and the next of kin. Secs. 7-11 and 1074-75, C. & M. Digest ; Southwestern Gas & Electric Co. v. Godfrey, 178 Ark. 103, 10 S. W. (2d) 894.
Neither is there any merit in the contention that the testimony is insufficient to support the verdict. In St. L. I. M. & S. R. Co. v. Gibson, 107 Ark. 431, 155 S. W. 510, this court, in construing* the lookout statute, § 8568, O. & M. Digest, relative to injuries to persons, upon which this suit1 is based, referred to the decision in Central Ry. Co. v. Lindley, 105 Ark. 294, 151 S. W. 246, construing the same statute relative to the duty to keep a lookout for property upon tracks, said: “We think the construction there placed upon the act applies to persons alike, and that the railroad company now owes the .same duty to keep a lookout to avoid injuring the trespasser upon its tracks, and that, upon proof of injury to such person by the operation of its trains under such circumstances as to raise a reasonable inference that the dang’er mi-g’ht have been discovered and the injury avoided if a lookout had been kept, a prima facie case is made, and the burden of proof then devolves upon the railroad company to show that a proper lookout was kept as required by the statute, and that it used ordinary care to prevent the injury to the person after his discovery in a perilous position in order to escape liability for such injury.” See also C. R. I. & P. Ry. Co. v. Bryant, 110 Ark. 444, 162 S. W. 51 ; Ib. v. Gunn, 112 Ark. 401, 166 S. W. 568, Ann. Cas. 1916E, 648 ; Ft. Smith L. & T. Co. v. Phillips, 136 Ark. 310, 266 S. W. 453 ; Kelly v. DeQueen & Eastern Ry. Co., 174 Ark. 1000, 298 S. W. 347.
It is tine that no eyewitness testified about the injury to the deceased, the railroad company not introducing any testimony of the operatives of its train, but Ihe testimony adduced shows that the body of deceased was found upon the right-of-way and within a few feet of the track of appellant with the skull crushed in such a manner as would have been the result had he have been struck by certain parts of the engine (the cylinder head or the “monkey motion” outside the drivers) of the train, and his .shoulder likewise broken and crushed with black oil smeared upon the hair and the clothing’ on the shoulder, the kind of oil used in the operation of the engines of appellant, which would have brushed off the machinery when it had come in contact with the body of deceased. The jury could have found from these facts established, and the reasonable and probable inference therefrom, that the deceased was struck and killed by the train.
The testimony also discloses that the trains passing along this straight track were equipped with power ful headlights which would have enabled the operatives to see the deceased on or near the track for 1,500 feet had a lookout been kept, and that the train could have been stopped within 500 feet operating at the speed it was traveling under the “slow orders,” in ample time to prevent the striking and killing of deceased. Proof of the injury under such circumstances as to raise a reasonable inference that the danger might have been discovered and the injury avoided, if a proper lookout had been kept and reasonable care exercised after the discovery of the peril to prevent the injury, made a prima facie case of liability devolving the burden upon the railroad company to show that a proper lookout was kept as required by the statute. This burden was in no wise attempted to be discharged, and the prima facie case warranted the jury in finding its verdict, the testimony being sufficient to support it. Mo. Pac. Rd. Co. v. Green, 172 Ark. 423, 288 S. W. 908 ; St. L. I. M. & S. R. Co. v. Hempfling, 107 Ark. 476, 156 S. W. 171 ; Ft. Smith L. & T. Co. v. Phillips, supra.
We find no error in the record, and the judgment is accordingly affirmed. | [
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Dunaway, J.
This cause arose as a suit by Robert James, against his wife, Carrie James, to have a resulting trust declared as to certain real property in Pine Bluff, Arkansas, legal title to which was held by Carrie James. She answered, denying all allegations in the complaint, and filed a cross-complaint seeking a divorce. Robert James has appealed and Carrie James has cross-appealed from the action of the Jefferson Chancery Court in regard to the property. The court’s action in granting a divorce is not cpiestioned.
The decree appealed from reads in part as follows:
“The court, being well and sufficiently advised as to all matters of fact and law arising herein and the premises being fully seen, finds that the plaintiff Robert James and the defendant Carrie James were married Marcli 1, 1944, and lived and cohabited together as husband and wife until October 10, 1947; that prior to the date of the separation the following described real property, situated in Jefferson County, Arkansas, was purchased, the deeds thereto placed the legal title to said property in Carrie James, to-wit:
“The East half (E%) of Lot Four (4) in Block Twelve (12) of Geisreiter’s Sub-division of a part of the Northeast fractional quarter of Section 31, Township 5 South, Range 9 West of the 5th P. M.
“The court finds that the plaintiff Robert James contributed one-third of the purchase price paid for said land and that a lien should be impressed upon said land to the amount of one-third of the value of said land as his interest therein.
“That the defendant Carrie James should be awarded as dower in the interest awarded to Robert James a sum equal to one-third of the value of said interest. Said dower interest to equal one-ninth of the value of said property. That said land is not susceptible of a division in kind.
“That the defendant Carrie James is entitled to a decree of divorce on her cross-complaint.”
The only real issue to be decided is whether the evidence supports the findings of the Chancellor.
From the testimony these facts were established: Appellant and appellee met in June, 1942, when appellee came from her home in Hot Springs, Arkansas, to visit her son in Pine Bluff. The son boarded at a combination cafe and rooming house operated by appellant. After a brief return to Hot Springs, appellee' came back to Pine Bluff in August, 1942, and took up residence at appellant’s establishment. She assumed the management of the cafe and rooming house, and he went to work at the Pine Bluff Arsenal.
Some time after appellee’s return to ■ Pine Bluff, negotiations were started for the purchase of the property now in controversy. Tt was owned by the widow and heirs of one Joe Alexander, deceased, subject to a mortgage held bjr the estate of E. P. Ladd and a tax title held by Shaffer Haley. On April 7, 1943, appellee (then Carrie Doss) purchased the tax title of Haley for the sum of $123.19, and received a quitclaim deed from him in which she was named as grantee.
On the same date the initial payment was made to ft. A. Zebold, administrator of the Ladd estate, on the unpaid balance of the mortgage debt which then totalled $366.99. Thereafter partial payments on the mortgage indebtedness were made at various times to-Mr. Zebold, who gave receipts in each instance in the name of Carrie Doss.
Upon final payment to the Ladd estate on September 3,1943, Mr. Zebold had prepared a deed for the Alexanders, conveying the property to Robert James, and a note to be paid by Carrie Doss for $433.01, the balance due the Alexanders on the purchase price. Neither this deed nor note was ever executed. Some time later, a deed to Carrie Doss was executed by the Alexanders, but was not delivered until October 16, 1945, when Carrie Doss paid in full the amount then due. Prior to this payment and delivery of the deed, the Alexanders had obtained judgment against Carrie Doss and Robert James in a suit instituted against both to collect the balance of the purchase price.
Appellant' and appellee were married on February 3, 1944, and lived together as husband and wife until shortly before the filing of the complaint in this action on October 28, 1947. There was some dispute as to the exact nature of their relationship prior to their marriage.
Except as already stated, the testimony on behalf of the parties to this action was in irreconcilable conflict. Appellant’s testimony was to the effect that he initiated the purchase of the property in question and furnished all of the money wit!) which it was bought; that appellee was at all times acting as his agent in making the payments in connection with the purchase; and that he did not discover until their estrangement in Cctober, 1947, that title liad been taken in appellee’s name rather than his own.
Appellee in turn sought to prove that she was acting only for herself in buying the property; and that the purchase price was paid entirely out of her own funds, partly from her earnings and partly through a loan from her son. Receipts, bank statements, and tax receipts were introduced by appellee in support of her claim.
In order to prevail in this action to establish a resulting trust for his benefit it was incumbent upon appellant to show that he had furnished the purchase money. Lasker-Morris Bank & Trust Co. v. Gans, 132 Ark. 402, 200 S. W. 1029; Lisko v. Hicks, 195 Ark. 705, 114 S. W. 2d 9.
It would serve no useful purpose to detail the voluminous testimony presented by each litigant in support of the conflicting contentions made as to the source of the purchase money. The Chancellor, who saw and heard the witnesses, has made a finding that the funds were provided, one-third by appellant, and two-thirds by appellee. We cannot say this finding is against the preponderance of the evidence.
The decree is affirmed on direct appeal and on cross-appeal. | [
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Frank Holt, Justice.
The appellants seek to adopt two and a half year old Jennifer Neighbors, the natural child of the appellee, of whom they have custody pursuant to a juvenile court order. The issue presented to the probate court was whether the consent of the appellee should be dispensed with pursuant to Ark. Stat. Ann. § 56-207 (a) (2) (Supp. 1981), which provides:
Consent to adoption is not required of: a parent of a child in the custody of another, if the parent for a period of at least one [1] year has failed significantly without justifiable cause (i) to communicate with the child or ... to provide for the care and support of the child as required by law or judicial decree;
The probate court held that the appellants failed to show by clear and convincing proof that the appellee had, unjus tifiably, for a period of one year failed to communicate with or support Jennifer Neighbors, and therefore, her consent to adoption could not be dispensed with. The natural father of Jennifer is deceased. Appellants first contend these two findings are erroneous. We find no merit in these or other contentions and affirm. We first note that findings of fact by the trial court shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence) and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. ARCP Rule 52.
Appellee was twenty-two years old when Jennifer was born on July 9,1979. Jennifer lived with the appellee for the first four months of her life and then with the appellants for four months before being returned to her mother for two months. In May 1980 the appellee went to Florida to seek employment, leaving Jennifer with baby sitters. On May 23, 1980, the juvenile court entered a temporary order and on July 2, 1980, a permanent order declaring Jennifer to be a dependent/neglected child within the meaning of Ark. Stat. Ann. § 45-403 (Repl. 1977). The court placed her in the legal custody of the appellants, who are relatives of the appellee. Jennifer has resided with the appellants continuously since May 23, 1980. In February 1981, the appellee petitioned the juvenile court for visitation rights, which were awarded. She exercised her visitation rights on five or six occasions between February and May, 1981, when she returned to Florida to find employment. She also saw Jennifer when she returned for a family reunion on July 4, 1981. The only support provided for Jennifer by the appellee since May 23, 1980, consisted of Christmas gifts in 1980 and presents on July 4, 1981. The appellee testified that she could find no employment locally and had no funds. Her husband, Jennifer’s father, abandoned them at Jennifer’s birth. The only evidence of her employment between June 1, 1980, and June 1,1981, is that she was employed at a nursing home for three months during the summer of 1980. There was no testimony with respect to her salary or expenses during this time. There was no testimony that she was employed at any other time during the year from June 1,1980, to June 1,1981, the time during which the appellants argue she failed significantly to provide for her daughter’s care. Further more, it appears undisputed that all parties understood the juvenile court order placed upon the appellants the duty of providing for Jennifer’s care and support. The appellants testified that they never expected any contributions toward Jennifer’s support from the appellee. This was in accord with appellee’s understanding. The appellee testified that she sought advice from the juvenile court judge and from a legal aid lawyer as to what she should do to regain custody of her infant daughter. She was told to stabilize her homelife. She has secured a divorce from Jennifer’s father, now deceased, and has remarried. She was not advised that she should contribute to Jennifer’s financial support.
Unlike Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979), relied upon by the appellants, here appellee was led to believe, in view of the previous court order and advice given to her, that she was not expected to furnish support for Jennifer. In fact, appellants acknowledge that they understood Jennifer’s support was their responsibility. Parties seeking to adopt a child without the consent of the natural parents bear the heavy burden of proving by clear and convincing evidence facts which justify dispensing with the required consent of the natural parents. Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979); Henson v. Money, 273 Ark. 203, 617 S.W.2d367 (1981). Here, we cannot say that the trial court clearly erred in holding that the appellants had failed to meet their burden of proving by clear and convincing evidence that no justifiable cause existed for the. appellee’s asserted failure to communicate with or provide support for her infant child.
The appellants argue that the probate court erred in refusing to grant a new trial on the ground that Ark. Stat. Ann. § 56-214 (c) (Supp. 1981) requires that the issues of parental consent and the best interest of the child be adjudicated simultaneously; that the probate court erred in failing to grant a new trial on the ground of newly discovered evidence relevant to the issue of the best interest of the child; and that the probate court erred in bifurcating the hearing and failing to receive evidence on the issue of whether the adoption would be in the best interest of the child. We cannot agree. At the beginning of the hearing, the probate judge proposed to conduct a bifurcated hearing whereby the issue of whether the appellee’s consent could be dispensed with would be heard immediately. If that issue were decided in the appellants’ favor, then the issue of whether the adoption would be in the best interest of the child would be adjudicated at a later date. The attorneys for both parties agreed to this procedure. Since the attorney for the appellants agreed to the procedure without objection, these points are not properly preserved for appeal and will not be considered. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
Appellants next insist that the trial court erred in refusing to consider the issue of whether the appellee’s parental rights should be terminated pursuant to Ark. Stat. Ann. § 56-220 (c) (2) and (c) (3) (Supp. 1981) and in refusing to admit evidence on this issue. It does not appear that relief pursuant to § 56-220 was sought in the appellants’ petition for adoption, nor does it appear that any evidence on this issue was offered. As indicated, counsel for the appellant agreed to proceed solely on the issue of whether the consent of the appellee could be dispensed with pursuant to § 56-207 (a) (2). Since this issue was not raised in the probate court, it will not be considered on appeal. Wicks v. State, supra.
Appellants’ final point is that the probate court erred in neither having the individual to be adopted present at the hearing nor excusing her presence as required by Ark. Stat. Ann. § 56-214 (a) (Supp. 1981). The record is silent as to whether the child sought to be adopted was present. Here, unlike Nelson v. Shelly, 268 Ark. 760, 600 S.W.2d 411 (Ark. App. 1980), upon which the appellants rely, the parties standing in loco parentis and having custody of the child were present, and it is they who now complain that the required presence of the child was not obtained. In these circumstances and in the absence of a clear showing that the statute was not complied with, we will indulge in the presumption that the court below had jurisdiction and acted correctly. See Wright v. Midland Valley Rd. Co., 111 Ark. 196, 163 S.W. 1151 (1914); Davie, Executrix v. Smoot, 202 Ark. 294, 150 S.W.2d 50 (1941); and Black v. Clary, 235 Ark. 1001, 363 S.W.2d 528 (1963).
Affirmed. | [
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Kirby, J.,
(after stating the facts). Appellant insists that the court erred in giving each of said instructions directing the jury that if they found from a preponderance of the testimon}^ that the assured had heart trouble in December, preceding the application for insurance, and this was known either to the assured or the beneficiary and was not disclosed to the defendant before the policy was issued, to find for the defendant. The provision in the policy relative to answers in the application being representations and not warranties is like those held to be representations in the cases of Old Colony Life Insurance Co. v. Julian, 175 Ark. 359, 209 S. W. 366, and Bankers’ Reserve Life Ins. Co. v. Crowley, 171 Ark. 135, 284 S. W. 4. In the latter case it was said: ‘ ‘ The questions propounded in the application as set out above call for answers founded on the knowledge and belief of the applicant and a misrepresentation or omission will not avoid the policy unless wilfully and knowingly made with an intent to deceive.” It is true the application appears to be signed by Percy L. Wilbon, but it is also signed by the father, appellant, with the statement required because of the applicant being under 15 years of age. There is no testimony tending to show that the under-10-year-old insured answered the questions in the application, except in the statements in the certificate thereto appearing to have been signed by him, and, if he had done so, being a minor of such tender age, he could not be expected to know whether the representations were correct and true, and certainly could not be held in making any misrepresentations to have made them wrongfully and knowingly with an intent to deceive such as would have avoided the policy. All of said instructions therefore — telling the jury that if they found that the insured or the beneficiary knew that the insured had had heart trouble preceding the application for insurance and did not disclose the fact to the insurer before the policy was issued and if either the assured or the beneficiary answered “No,” to the inquiry if the assured had ever had heart trouble and either of them knew that he had had heart trouble and if they found that either the assured or the beneficiary stated to the agent of the insuring company in answer to a question asked that the assured had never had heart trouble/4with the intent to deceive the company, etc.”, they should find for the defendant — -were incorrect and erroneous on that account, and inherently wrong, and necessarily call for a ■reversal of the case.
Since the beneficiary was not only required to consent to the application for insurance for his minor son, but to certify that the answers made to the questions in the application were complete and true in every particular, he was bound by such statements and representations to the same extent only, if they proved to be false, as if he had made such, representations upon an application for insurance upon his own life wrongfully and with an intent to deceive and not otherwise. The court therefore erred in giving each of the said instructions permitting the insurer to avoid liability on its policy if they found such misrepresentations had been knowingly made with the intent to deceive, either by the insured or the beneficiary.
For this error the judgment must be reversed, and the cause remanded for a new trial. It is so ordered. | [
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Minor W. Millwee, Justice.
Appellant, Leon Hes-kett, brought this action against appellee, Fisher Laundry & Cleaners Co., a corporation, and J. B. Fisher to recover damages, actual and exemplary, for injuries alleged to have been suffered by reason of a vicious, intentional, unprovoked and premeditated assault committed upon appellant by the said J. B. Fislier while acting as an officer and general manager of the corporation.
Appellant alleged that at the time of the assault he was engaged in his regular work as an employee of the defendant company and that J. B. Fisher was engaged in the discharge of his duties as general manager of the corporation; that appellant was prevented by reason of the assault from performing the duties of a laborer for a period of three weeks; and that he had suffered excruciating mental and physical pain and great humiliation on account of the assault which was committed in the presence of fellow employees and other persons. The complaint contained a prayer for actual damages in the sum of $5,000 and for exemplary damages in a like sum.
Appellee and J. B. Fisher answered with a general denial and stated that appellant’s injuries, if any, resulted from his unjustified attack upon J. B. Fisher who acted in self-defense and to protect his employer’s property. In an amendment to the answer appellee alleged that it carried Workmen’s Compensation Insurance and that appellant was subject to the provisions of the Workmen’s Compensation Act which was pleaded as a defense to the action. The trial court treated the amendment to the answer as a demurrer to the jurisdiction of the court which was sustained as to appellee and overruled as to the defendant, J. B. Fisher. Appellant elected to stand on the complaint as to the action against the corporation and this appeal is prosecuted from the judgment dismissing the cause of action against appellee.
The questions for determination are: whether a willful and malicious injury inflicted by the officer and general manager of the employer upon the employee is comprehended within the provisions of the Workmen’s Compensation Act; and, if so, whether the Act affords an exclusive remedy to the injured employee.
The compensation acts of many states contain provisions specifically preserving the ordinary remedies at law for injuries resulting to employees from the employer’s willful act or misconduct. 58 Am. Jur. Workmen’s Compensation, § 54. In some states the Act provides for an increase in compensation in case of the willful misconduct of the employer. 4 Mass. Ann. Laws, Ch. 152, § 28; Leering’s Calif. Labor Code, § 4553. Our compensation act, like those in many other states, contains no specific provision as to right of recovery for injuries sustained by willful and intentional acts of the employer. Section 2(d) of the Ark. Workmen’s Compensation Act, Initiated Act No. 4 (1949 Cumulative Pocket Supp. Ark. Stats. 1947, 81-1301 to 81-1349) defines “injury” as meaning only accidental injury arising out of and in the course of employment, including occupational diseases and infections. Section 81-1303 provides that the act shall apply only to claims for injuries and death based upon accidents which occur from and after the effective date of the act.
Section 81-1304 provides: ‘ ‘ The rights and remedies herein granted to an employee subject to the provisions of this Act, on account of injury or death, shall be exclusive of all other rights and remedies of such employee, his legal representative, dependents, or next kin, or anyone otherwise entitled to recover damages from such employer on account of such injury or death, except that if an employer fails to secure the payment of compensation, as required by the Act, an injured employee, or his legal representative, in case death results from the injury, may, at his option, elect to claim compensation under this Act or to maintain a legal action in court for damages on account of such injury or death . . . ”
Section 81-1305 provides: “Every employer shall 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 employment, without regard to fault as a cause for such injury; provided, that there shall be no liability for compensation under this Act where the injury or death from injury was solely occasioned by intoxication of the injured employee or by willful intention of the injured employee to bring about the injury or death of himself or another ? J
In order to sustain the judgment appellee contends that the fact that the injury is the result of a willful assault on the employee does not prevent it from being “accidental” within the meaning of the act. This contention is in accord with the general rule which we approved in the case of Hagger, Admx., v. Wortz Biscuit Co., 210 Ark. 318, 196 S. W. 2d 1. Appellee says the question involved here is determined by our holding there. That case involved a suit against a company and a fellow employee of the deceased for gross negligence in the storing of gasoline in glass containers and underground tanks which allegedly caused an explosion and fire resulting in the employee’s death. AVhile the complaint in that case alleged that the fellow employee willfully and recklessly stored the gasoline, the case did not involve willful and malicious injury by assault such as is alleged in the instant case.
The effect of our holding in the Hagger case, supra, is that the remedy afforded the employee under the compensation act is exclusive where injury or death results from gross negligence of the employer or a fellow employee. We adhere to that rule and also to the dictum in that case to the effect that an injury may be the result of “accidental” means under the statute so as to be com-pensable* notwithstanding the act producing the injury was intentional. In Lundell v. Walker, 204 Ark. 871, 165 S. W. 2d 600, we upheld an award by the compensation commission where a plantation foreman shot and killed an employee in an argument over the employee’s discharge. The question here is whether the compensation act affords the exclusive remedy where the injury or death is the result of a willful and malicious assault by the employer.
In Horovitz on Workmen’s Compensation p. 336 it is said: “Where the employer is guilty of a felonious.or toillful assault on an employee he cannot relegate him to the compensation act for recovery. It would be against sound reason to allow the employer deliberately to batter his helper, and then compel the worker to accept moderate workmen’s compensation benefits, either from his insurance carrier or from himself as self-insurer. The weight of authority gives the employee the choice of suing the employer at common law or accepting compensation.”
■ In Lavin v. Goldberg Building Material Gorp., 274 App. Div. 690, 87 N. T. S. 2d 90, the administratrix brought a common law action against the corporate defendant and its foreman for personal injuries resulting in death from the willful and intentional assault on plaintiff’s intestate by said foreman while acting within the scope of the employment. The New York court held that, where there is a willful and intentional assault, the employee has his election to take under the compensation act and thus regard the assault as an accident, or instead to sue both the foreman and the corporate defendant at common law. The court said: “The Workmen’s Compensation Law deals not with intentional wrongs but only with accidental injuries. We entertain not the slightest doubt that where an employer, either directly or through an agent or servant, is guilty of a felonious assault upon an employee he cannot relegate the latter to the compensation statute as the sole remedy for his tortious act. It would be abhorrent to our sense of justice to hold that an employer may assault his employee and then compel the injured workman to accept the meager allowance provided by the Workmen’s Compensation Law. Under such circumstances the one assaulted may avail himself of a common law action against his assailant where full monetary satisfaction may be obtained.” See, also, LePochat v. Pendleton, 187 Misc. 296, 63 N. Y. S. 2d 313, affirmed without opinion, 271 App. Div. 964, 68 N. Y. S. 2d 594; Stewart v. McLellan’s Stores Co., 194 S. C. 50, 9 S. E. 2d 35; Castleberry v. Frost-Johns on Lumber Co., (Tex. Comm. App.) 283 S. W. 141; Richardson v. The Fair, Inc., (Tex. Civ. App.) 124 S. W. 2d 885. An interesting article on the question appears in 2 Ark. Law Review p. 130.
Perhaps the leading case on the question is that of Boek v. Wong Hing, 180 Minn. 470, 231 N. W. 233, 72 A. L. R. 108, where the employer struck and injured the employee during the regular hours of work. In an action at law for damages by the employee, the defense was that the Workmen’s Compensation Act afforded the employee his exclusive remedy. In holding that the employee could either seek recovery under the compensation act or sue for full damages at common law, the court said: “An employer who intentionally and maliciously inflicts bodily injuries on his servant should occupy no better position than would a third party not under a Compensation Act, and should not be heard to say, when sued at law for damages, either that the injury was accidental or that it arose out of the employment. By committing a felonious assault upon a servant the master willfully severs the relation of master and servant and should be held to have left it to the election of the servant either to consider the relation still existing and seek redress through the Compensation Act, or else to consider the relation terminated and seek redress under the common law. Instead of himself heating up plaintiff, had defendant hired a third party, who was not under any Workmen’s Compensation Act, to do so, it would not for a moment be doubted that the third party, when sued for damages at law, could not move for a directed verdict, as was done here, on the ground that plaintiff’s sole remedy was under the Compensation Act. If the mere tool or agent is liable in an action for damages, the principal should be likewise . . .” A majority of the decisions from other jurisdictions appear to support the conclusion reached by the Minnesota court although there is authority to the contrary. McLaughlin v. Thompson, Boland & Lee, Inc., 72 Ga. App. 564, 34 S. E. 2d 562.
Under § 40(a) of the Ark. Workmen’s Compensation Act (1949 Cumulative Pocket Supp. to Ark. Stats. § 81-1340) the recovery of a claim for compensation does not affect the employee’s right to maintain a tort action against any third person responsible for his injury whether the act of such third person be willful or merely negligent. This section of the Act was doubtless included in order to safeguard the employee’s right to recover full damage against the wrongdoer. It would seem, by analogy, that the intention of the lawmakers was not to destroy such employee’s right to full damage when the injury results from the willful and intentional act of the employer. Under § 81-1305, supra, the employer does not waive the defense of the injury being occasioned by the willful intention of the employee to bring it about. As suggested by appellant, it would appear anomalous to hold that the employer does not waive such defense while the employee waives the right to recover full damage for an injury caused by the willful and malicious act of the employer.
The complaint in the instant case alleges that an officer and general manager of appellee committed a vicious, unprovoked, intentional and violent assault and battery upon appellant during the course of the employment under circumstances which, if substantiated, would entitle appellant to both actual and exemplary damages at common law. We conclude that the rule laid down in Boek v. Wong Hing, supra, is supported by sound reasoning and that appellant is entitled to elect to either claim compensation under the compensation act or treat the willful assault as a severance of the employer-employee relationship and seek full damages in a common law action. Appellant having elected to pursue the latter remedy, it follows that the trial court erred in sustaining the demurrer to the complaint against ap-pellee.
The judgment is, therefore, reversed and the cause remanded with directions to overrule the demurrer to thg complaint against appellee. | [
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J. Fred Jones, Justice.
The question before the Commission in this compensation case, was which of two insurance carriers is liable for temporary total disability from January 5, 1971, to February 18, 1972, and permanent partial disability in the amount of 50% to the body as a whole awarded to Mallie Hill as a result of a ruptured disc sustained in the course of her employment by Frolic Footwear.
Fireman’s Fund Insurance Co. was the compensation carrier for Frolic until January 1, 1970, at which time Liberty Mutual Insurance Co. became the compensation carrier. The compensability and amount of the award are not questioned. The specific question is whether the disability from a ruptured disc suffered by Mrs. Hill resulted from injury sustained prior, or subsequent, to January 1, 1970. The Compensation Commission found that it resulted from injuries sustained subsequent to January 1, 1970, and made the award against Liberty Mutual. On appeal by Liberty Mutual the circuit court found that the Commission had ignored the evidence of injury sustained in 1969 and the court failed to find any substantial evidence that the ruptured disc and resulting disability were caused by injury subsequent to January 1, 1970. The circuit court reversed the award of the Commission and remanded with directions to make the award against Fireman’s Fund. The circuit court judgment recites in part as follows:
“According to the record herein the claimant sustained injuries to her back November 5, 1969, while pulling a rack of shoes.
Subsequent to that date claimant has suffered severe back injuries aggravating her condition, including but not limited to her injuries in lifting boxes in August, 1970, and pulling the racks in December, 1970, all of which ultimately required surgery in 1971 to correct.
*ir ■jv
The Court finds that the claimant’s injuries primarily began with the back injury on November 5, 1969, and that the injuries of 1970, as well as the other injuries, were in aggravation of the 1969 injury; that there was no substantial evidence to support the Referee or Commission in ignoring the injury of November, 1969, and accepting in lieu thereof an injury of a later date; that disability should begin with the 1969 injury.”
On appeal to this court Fireman’s Fund contends that there was substantial evidence to sustain the award of the Commission and the circuit court erred in holding otherwise.
Both sides recognize the well-established rule that an award of the Workmen’s Compensation Commission has the same force and feffect as a jury verdict and must be affirmed on appeal if there is any substantial evidence to support it. The question on appeal is not what decision the circuit court or this court would have reached on trial de novo; nor is the question on appeal whether there is substantial evidence to sustain a different award than the one made. The question on appeal is whether there is any substantial evidence to sustain the decision or award the Compensation Commission did make. In Sneed v. Colson Corp., 254 Ark. 1048, 497 S.W. 2d 673, we said:
“On appeal to die circuit court and to this court the only question for determination is whether or not there was any substantial evidence to sustain the Commission’s finding and we, of course, in examining the evidence for such determination, must view it together with all reasonable inferences deducible therefrom, in the light most favorable to the Commission’s finding the same as in a jury verdict. Northwestern Nat’l Ins. Co. v. Weast, 253 Ark. 710, 488 S.W. 2d 322; Warwick Electronics v. Devazier, 253 Ark. 1100, 490 S.W. 2d 792.”
We agree with the circuit court’s finding of facts contained in the record as above set out, but we disagree with the conclusion reached by the circuit court. The record in this case is made up> from two separate hearings before the Referee. At the first hearing on December 17,1971, Mrs. Hill testified that she went to work at Frolic Footwear in October, 1968, and had no physical defects or disability at that time. She testified that she sustained an injury to her back on the night of November 4, 1969, when a shoe rack almost tipped over on her. She said she went to the nurse immediately] reported her injury and then called Dr. Modelevsky who prescribed pain pills and requested her to come to the office the next morning if she felt no better. She said she did return to Dr. Mode-levsky on November 5 and was given muscle relaxants and pain pills and was told sbe had pulled a ligament in her back. She said she was hospitálized at that time for pneumonia; was also treated for her back injury and was released to return to work on December 8, 1969. She said she did return to work on December 9 and as she was going up an incline at the Frolic plant, she slipped and fell on the ramp, skinned both knees and again hurt her back but lost no work because of these injuries. She said she continued to work the remainder of 1969 “off and «on” and then testified as follows:
“Q. Explain why you only worked off and on.
A. Well my back was hurting so bad, pushing and pulling those racks and some of them you couldn’t hardly pull — you had to have two people to help— I would pull those racks and it would just tear me in two — I would have to take off a few nights and then maybe I would lay around and get to feeling better and I would return to work — Dr. Modelevsky would tell me I could go back to work and I would do it again for a while and the same thing would happen again.”
Mrs. Hill testified that on February 3, 1970, she sustained a hernia and testified as follows:
“Q. When did you after that reinjure your back?
A. I reinjured my back January, 1971, and though I am sorry I am getting too far ahead of myself — I reinjured my back in August of ‘70 — I lifted a box of shoes up over my head and my hernia came out again and my back was still just killing me and I re-entered the hospital at that time — I had hernia surgery — was also taken back to surgery for more treatment on my back.”
Mrs. Hill testified that following her operation for hernia she returned to work about November 2, 1970, she then testified as follows:
“Q. Did you reinjure yourself again on December 22nd, 1970?
A. Yes, sir.
Q. Tell how you injured yourself at that time.
A. At that particular time I was pushing — pulling the rack just like I said and these racks were hard to push and pull and it yanked my back and I was rein-jured in my back again.”
Mrs. Hill testified that on January 5, 1971, she reentered the hospital and underwent surgery for a blocked intestine and also received treatment for her back. She said that after her January, 1971, hospitalization she has not returned to work. She said that Dr. Modelevsky referred her to Dr. Mahon in January, 1971, at which time she was having back pain and numbness in her leg and foot. She said that after conservative treatment failed to relieve her condition, Dr. Mahon referred her to Dr. Cunningham at St. Bernard’s Hospital, who in turn referred her to a neurosurgeon in Memphis. She said the neurosurgeon referred her back to Dr. Mahon who performed a myelogram on July 12, 1971, and later performed surgery for a ruptured disc on July 22, 1971. She testified that she has been unable to work since she last worked for Frolic Footwear January 5, 1971.
At the second hearing on March 10, 1972, Mrs. Hill testified substantially as she did at the first hearing. She said she reported her back injuries to the first-aid nurse, Mrs. Collins, and to her supervisor.
Mrs. Joan Collins, the first-aid nurse at Frolic, testified from her records that on November 4, 1969, Mrs. Hill was sick and didn’t come to work; that on November 5 she came to work and after 5 o’clock reported that she was sick. She said Mrs. Hill advised her that Dr. Modelevsky said she had pneumonia. She said she took Mrs. Hill’s temperature and sent her home and at no time did Mrs. Hill ever report or complain to her of any injury involving her back.
Mr. Leonard Lee, foreman at the Frolic plant, testified that he does not recall Mrs. Hill ever reporting a back injury to him. He said, however, that he has about 60 women under his supervision and that if he listened to all of their complaints, he would do nothing else.
As already set out and as found by the circuit court, there is ample evidence that Mrs. Hill did receive a series of injuries to her back in 1970 following the initial injury in November 1969. There is no question that Mrs. Hill was finally forced to cease work about January 5, 1971, because of the condition in her back, and there is no question that that disability resulted from the effects of a ruptured disc.
Turning now to the medical evidence in this case, Dr. A. C. Modelevsky, apparently the staff physician for the employer Frolic, rendered a report on August 8, 1971, stating that he first saw Mrs. Hill on November 5, 1969, at which time she gave a history of feeling something pop in her back when she was pulling a loaded shoe rack with a broken wheel. He said she was admitted to the hospital the following day where she remained for 13 days; that she was treated for viral pneumonia and back sprain. Dr. Modelevsky then reports as follows:
“AP & lateral views of the lumbo sacral spine showed a satisfactory alignment of the vertebrae. The joint spaces were reported as intact and there was nothing seen to suggest an old or recent fracture, congenital defect or significant arthritic changes. She was seen again at the office on 11/24/69, still complaining of low back pain, numbness and stated that ‘toes feel like they were frozen.’ She was seen again at my office on 12/1/69, feeling much better and returned to work on 12/8/69. * * *
On 2/3/70, while at work felt a sharp pain in rt. groin and had a recurrence of a previous rt. inguinal hernia — this was reduced in the Emergency Room at the hospital and after resting a couple of days, was able to return to her work. On 8/28/70, she again hurt her side and was admitted to the hospital on 8/30/70 for repair of the rt. inguinal hernia — this was done on 8/31/70. She stayed in the hospital until 9/5/70. She was seen in my office on the following days 9/14/70, 9/21/70, 9/28/70, 10/5/70 account of her back ache —she was treated with rest, and various muscle relaxants. She returned to work on 11/2/70.”
Dr. Modelevsky then reported unrelated intestinal surgery and liver complications suffered by Mrs. Hill, all of which he described as a rather “stormy course.” He said, however, that she recovered and was able to be discharged on 2/10/71. He then stated:
“Since that time, she has not been able to do any of her work on account of her back pain — she was seen in consultation by Dr. Larry Mahon and Dr. Craig Grant, a neurosurgeon. She recently had disc surgery —I had not seen her since her last admission to the hospital.”
Under date of July 22, 1971, Dr. Larry E. Mahon, an orthopedic surgeon, reported that he first saw Mrs. Hill on April IB, 1971. Dr. Mahon reported a history of occupational back injury occurring in August, 1970. It would appear from the history, as related by Dr. Mahon, that Mrs. Hill confused the 1969 accident when the shoe rack tipped over as testified by her, with the accident in which she sustained her hernia in 1970. In any event, Dr. Mahon reported that Mrs. Hill’s primary complaint was of low back pain and pain in the right leg with paresthesia and weakness in the right leg. He then reported as follows:
“PHYSICAL EXAMINATION found her to be a well developed, small white female; alert, cooperative, in no acute distress. Gait pattern was within normal limits. Examination of her back found there to be tenderness about the lumbosacral area with 50% limitation of motion in all planes. There was noted to be a positive straight leg raising test bilaterally, more marked on the right side. Neurological examination found there to be a sensory deficit corresponding to the L-4, 5 nerve root dermatone on the right side. There was also depression of the right ankle jerk.
I subsequently admitted her to the hospital on 4/28/71, did a myelogram which was equivocal. She was treated conservatively and discharged improved on 5/6/71.1 saw her again on 6/21/71, stating that she was again having severe pain in her back and pain in the leg. Her examination was slightly improved. I recommended more aggressive exercise for her back and recommended she remain off from work. I saw her again on 7/12/71, still complaining of numbness in the right leg, pain in the lowback. Her examination was significant in that she had numbness, still, in the right leg in the L-4, 5 dermatone pattern, however, she also had some aspect of bizarre numbness as well. The straight leg raising was still positive on the right side.
I readmitted her to the hospital and did a repeat lumbar myelogram on 7121171, which this time showed a definite defect at L-4, 5 on the right side. I plan on doing a laminectomy on her in the morning and will send you an additional report when she is discharged from the hospital.” (Óur emphasis).
Liberty Mutual earnestly contends that this case is on all fours with the case of St. Paul Ins. Co. v. Liberty Mutual Ins. Co., 250 Ark. 209, 464 S.W. 2d 566, but that case is clearly distinguishable on the evidence of subsequent injury. In the St. Paul case the claimant-employee was injured when he fell from a tractor in November, 1968. Within two weeks following the November injury, the claimant’s right leg and foot started going to sleep and the condition got progressively worse until surgery was required on April 6, 1969. Liberty Mutual was the insurance carrier until January 1, 1969, when St. Paul became the insurance carrier. Compensation was awarded equally against both carriers by the Commission and we reversed because there was no substantial evidence to support the Commission’s finding that St. Paul was liable.
The only evidence in that case of any injury at all except the November, 1968, injury was elicited from the claimant in a discovery deposition when he was asked if, he had received any other injury, and to which he replied:
“ ‘Well, at one time I noticed my back hurt me more. I was moving some — you know, my legs and things was bothering me more. I was moving some steel and of course, I was doing some lifting and I noticed it. * * * It was my leg more or less, my back didn’t hurt so much it just — I don’t know how to explain it, just my legs.’ ”
The record in the St. Paul case then reflects the following:
“ ‘Q. Did you have any specific instance when you were lifting something that you felt—
A. Like I say, when I was lifting that steel that time why I noticed it was hurting me more. I was stiff, you know for awhile.
Q. Did you feel any popping in your back or anything like that?
A. No sir, I didn’t, no.’ ”
The claimant in St. Paul then testified that following the accident in November, 1968, his right foot and leg started going to sleep and it just got progressively worse until finally he had to go to the doctor. He testified that his condition was gradually getting worse up until he moved some steel and it seemed like it hurt worse after he moved some steel. He said he did not know whether moving the steel or just time made his condition worse. He said he knew that he just got worse. He said that from the date of his accident and the onset of his symptoms his condition just got worse as every day went on.
Disability is the primary compensable element in a compensation case and the compensability is not questioned in the case at bar. We agree with the circuit court that according to the record in this case, Mrs. Hill suffered several (if not severe) back injuries which aggravated her condition following her initial injury on November 5, 1969. Mrs. Hill continued to work “off and on” until January 5, 1971, when she was forced to quit work because of her back.
Following her initial injury in 1969 x-rays were negative and Mrs. Hill was treated for “back sprain” by Dr. Modelevsky. Following her subsequent injuries in 1970 and 1971 myelogram findings on 4/28/71 were equivical and on July 21, 1971, a subsequent myelo-gram examination revealed a definite defect. We are of the opinion there was substantial evidence from which the Commission could have found that Mrs. Hill’s rup tured disc and related disability actually occurred as a result of one or all of the back injuries sustáined by her subsequent to 1969.
The judgment of the circuit court is reversed and this cause is remanded with directions to affirm the award of the Commission.
Reversed and remanded. | [
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Frank Holt, Justice.
The chancellor held that the appellee, Tenneco Oil Company, breached its agreement with the appellants, the Schaffers, to pay royalties pursuant to an oil and gas lease entered into in 1973. He ordered the appellee to pay the royalties, past and future, pursuant to the terms of the lease, plus accrued interest. The appellants contend, however, that the chancellor also should have sustained their plea for cancellation of the lease.
The appellants leased 2% acres to Brenda Oil Company by an oil and gas lease dated July 3, 1973. Brenda Oil Company assigned the lease to Tenneco on July 13,1973. In 1974 Tenneco drilled a well on the leased premises. In 1975 production began from the well. It is undisputed that no royalties have been paid by the appellee to the appellants pursuant to the lease. It also is undisputed that the appellants never contacted the appellee seeking payment of the royalties due them before filing this action on September 24,1981, nor did they seek cancellation or forfeiture for failure to pay royalties prior to that date. The appellee customarily requires its lessors to sign a “division order” prior to payment of any royalties. A division order, inter alia, states the terms according to which payment of royalties is to be made, and in this case those terms varied somewhat from the terms of the lease. It appears that the appellee attempted to send a division order to the appellants as a prelude to payment of royalties in 1977, but the zip code on the address was incorrect and the appellants deny receiving the division order. The appellee made no other effort to contact the appellants concerning payment of royalties; however, it did set aside, in a suspense account, the funds due the appellants. At the hearing in chancery court the appellants admitted they live within sight of the well on their premises and were aware that it was producing gas. They knew, at the time of the hearing, they could sign a division order and receive payment of royalties, but they refused on the basis that the terms of the division order varied from the terms of the lease. An agent of the appellee testified, howeyer, that the appellants could receive their royalties without signing a division order merely by stipulating to the acreage amount covered by the royalty payments. The purpose of the division order is to insure that the proper party receives payment, thereby avoiding possible double payment.
The appellants concede that Louisiana is the only jurisdiction that has consistently been willing to decree cancellation for a lessee’s unexcused failure to pay pursuant to an oil and gas lease. The majority view was expressed by the Supreme Court of Oklahoma in Wagoner Oil & Gas Co. v. Marlow, 137 Okla. 116, 278 P. 294 (1929): “Failure to pay royalty or for injury to the land as provided by the lease will not give the lessors sufficient grounds to declare a forfeiture, unless by the express terms of the lease they are given that right and power. ” To the same effect is Cannon v. Cassidy, 542 P.2d 514 (Okla. 1975). Summers, THE LAW OF OIL AND GAS, Vol. 3A (1958), § 616, states:
Oil and gas leases ordinarily do not contain an express provision empowering the lessor or royalty owner to declare a forfeiture thereof for the nonpayment of gas well rentals or oil and gas royalties from production. In the absence of such a provision the courts in most jurisdictions refuse to enforce a forfeiture for the nonpayment of royalties by decreeing a cancellation of the lease.
Where there is no cessation of marketing of oil and gas for a substantial period but only the nonpayment of royalties, the lessors generally have a plain, speedy, and adequate remedy at law for damages. Cannon v. Cassidy, supra. Here, there was a nonpayment of royalties. The chancellor held there was a breach of contract by appellee and awarded appellant damages, which included payment of all royalties owed pursuant to the terms of the lease plus accrued interest. The lease does not contain an express provision allowing forfeiture for nonpayment of royalties and neither has the appellee refused to pay the royalties, although payment has been delayed, as indicated. On the facts here, we cannot say the chancellor’s refusal to decree a cancellation of the lease is clearly erroneous.
The appellants also argue the chancellor erred by allowing the appellee’s witnesses to testify concerning customs and usage in the oil and gas industry without a showing that the appellants knew of the custom and usage or that the terms of the lease were vague. The witnesses testified that it is customary in the oil and gas industry to withhold royalty payments until a division order is signed by the lessors. This testimony went to the issue whether withholding payment until a division order is signed constituted a breach of the lease agreement. The testimony was to the effect that the appellee did not breach the lease by requiring division orders to be signed, because the division orders accord with the custom and usage of the industry. This issue was decided in favor of the appellants since the chancellor held the appellee breached the lease by not paying the royalties. Since this testimony was relevant to an issue decided in favor of the appellants, its admission into evidence, even if erroneous, was harmless. We do not reverse for harmless errors. Ark. Stat. Ann. § 28-1001, Rule 103 (a) (Repl. 1979); ARCP, Rule 61; and Haseman v. Union Bank of Mena, 268 Ark. 318, 597 S.W.2d 67 (1980).
Affirmed. | [
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Robert H. Dudley, Justice.
The State charged appellant with incest and rape by alleging that on numerous occasions he engaged in sexual intercourse or deviate sexual activity by forcible compulsion with his fourteen year old daughter. He employed an attorney but that attorney was granted leave to withdraw as the result of a conflict of interest. Appellant requested that.he be allowed to represent himself. The trial judge appointed a second attorney to assist appellant in the preparation of his defense and to act in a standby capacity at trial. The second attorney carefully detailed the various possible sentences which appellant faced and offered to assist the appellant in any manner. That attorney then moved to Texas and a third one was appointed. Over the next three and one-half months the third attorney consulted in person with appellant, telephoned him and wrote him. It is undisputed that the attorney related the nature of the charges and the possible penalties. He informed him of a plea bargain offer by the State. However, the appellant stated he did not want to plea bargain and did not want the attorney to defend him. Immediately prior to trial, the trial judge conducted another in camera hearing and again appellant stated that he desired to proceed without an attorney. He stated: "I understand that I have a right to use Mr. Lippard as my attorney. In fact he is my lawyer.” The j udge cautioned the appellant and questioned the wisdom of his decision. He responded that there was no defense and "I’ll take what they give.” Additionally, he stated that his family had already been hurt enough.
At trial, appellant’s daughter testified to incidents of sexual intercourse by forcible compulsion as well as deviate sexual activity by forcible compulsion. A medical doctor’s testimony tended to corroborate her testimony. The State rested. Appellant’s attorney approached the bench and stated that appellant would not allow him to put on a defense. In chambers appellant again stated he did not want to further embarrass his family and he simply did not want to defend.
The jury found appellant guilty and fixed his punishment at twenty years on the charge of rape and ten years on the charge of incest. We affirm,
An accused may voluntarily and intelligently waive the right to counsel and choose to represent himself. Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975). Here, such a waiver undoubtedly occurred. Nonetheless, the trial judge appointed a standby attorney but appellant refused to allow the attorney to defend. The services of an attorney cannot be forced upon an accused. Nichols v. State, 273 Ark. 466, 620 S.W.2d 942 (1981).
Appellant next contends that the charges of rape and incest should have been merged because they grew out of the same factual situation. We do not find it necessary to determine whether rape by sexual intercourse or rape by deviate sexual activity and incest require different elements of proof. There was ample testimony by which the jury could have found that appellant committed rape by deviate sexual activity on one occasion and, on other occasions, was guilty of incest by having sexual intercourse with his daughter. Each act constituted a separate offense. King v. State, 262 Ark. 342, 557 S.W.2d 386 (1977). Appellant was properly convicted on separate counts.
Appellant was convicted and transported to the Department of Correction. Twenty-six days later a motion for a new trial and a notice of appeal were filed. At the hearing, which was held two months after appellant was imprisoned, the trial judge announced he would change the sentences to run concurrently if he could. He later ruled that he no longer had jurisdiction to alter the sentences. The trial judge was correct. Once the execution of the sentence has begun the trial court loses jurisdiction to modify the sentence. Charles v. State, 256 Ark. 690, 510 S.W.2d 68 (1974).
Affirmed.
Purtle, J., dissents. | [
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Smith, J.
Appellant company, a corporation, had a contract with the State Highway, Commission for the construction of a bridge across Ouachita River, the girders of which were constructed of reinforced concrete. In the construction of the girders heavy forms were used to support them until the cement had set, after which the forms were removed. The forms were built of heavy pieces of lumber and weighed from 150 to 250 pounds each. The testimony is conflicting as to the number of men usually employed in removing the forms, but the testimony supports the finding* made by the jury on this issue of fact that the usual number was from four to eight men.
The testimopy clearly establishes the fact that the men were in positions imposing strains upon them while employed in removing the forms, as they were working under the floor of the bridge and about fourteen or eighteen feet above the ground, and they had only the cap sills on which to stand or sit while they were so employed. There was no scaffolding upon which they could stand and work.
On October 24, 1929, appellee, who is a carpenter by trade and thirty years of age, was sent by his foreman to assist two other employees in removing one of these forms. He had not previously performed work of that kind, and was given no instructions as to the manner of removing the forms, except that they were not to be wrecked but were to be taken out whole, so that they might again be used for the same purpose. Appellee and his fellow-servants were furnished wrecldng- bars, to be used in removing the forms. These bars were of different length and thickness. The one selected by appellee was about three feet long, one inch thick, and made of steel.
In order that the form might be held properly in place, it was nailed with 20-penny nails to another form called the “girder form,” and it was the theory of the defendant company that appellee’s injury was caused by attempting to remove the form before he withdrew the nails, but this question of fact was submitted to the .jury under an instruction to the effect that there could be no recovery if this had been the cause of the injury. The verdict of the jury finding for appellee concludes this question of fact.
The testimony on behalf of the appellee was to the effect that all of the nails had been removed which the work required, and that the trouble was that the form was wedged in between the concrete, and appellee and his fellow-servants had pulled the form down until they had no leverage for their bars. When this condition arose, the men used their hands. The company’s foreman testified that the bottoms of the forms came out first, and then the men prized straight down, but there was testimony, as has been stated, that the forms upon which appellee was working when he was injured had been pulled down to a point where there was no longer a fulcrum to afford leverage for pulling down with the bars. Upon this point appellee testified as follows: “We all prized -with our1 wrecking bars, and we couldn’t get it out; so that the other two men were prying, and we got it open enough so I could get my arm in there, and I said, ‘Just hold and I believe I can do more with my shoulder than I can with my wrecking bar.’ So they used their wrecking bars, and I set one foot against the second girder and one on the cap and .gave a surge against it to pull out, but I didn’t get the form out at that time, only I hurt myself. Three men couldn’t get it out without doing all that straining.”
Appellee was ruptured, and no contention is made that the judgment returned in his favor, from which is this appeal, is excessive.
Liability on the part of the master, the bridge company, is predicated upon the proposition that appellee was directed to perform a service, which was made dangerous by reason of not having been furnished sufficient help, and that the work could have been performed safely, had sufficient help been supplied.
We have stated the testimony in the light moist favorable to appellee, as we are required to do in testing its legal sufficiency, but, when thus viewed, it appears to us that appellee must be held, as a matter of law, to have assumed the risk of his injury. He did not act in an emergency. The case is not one where the form was about to fall and be damaged, or injure appellee or one of his fellow-servants unless he attempted to support it. In fact, he sustained his injury in an unsuccessful attempt to. remove the form. To use his own expression, he “surged” against the form with a force su great that he ruptured himself. No one could know better than he what force might safely be applied, and the danger of injuring himself if he overtaxed his strength was an obvious one, the risk of which he must be held to have assumed.
Moreover, the undisputed testimony shows that, even after appellee was injured, the same three men continued their efforts to. remove the form, .and by resorting to first one expedient and then another they succeeded in doing so without further injury to any one.
Under the facts stated, we think there was no liability in this case, and that a verdict should have been directed for the defendant. It appears, however, that appellee had sustained two separate injuries during the course of his employment, and that he brought separate suits, which were consolidated and- tried together, but separate verdicts were returned in his favor in each case, and while the entire record of the trial of both cases is before us, we are asked to reverse the judgment only in the case which we have discussed. This will be done, and, as it appears to have, been fully developed, it will be dismissed. The judgment in the other case will be affirmed. | [
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Leelar, J.
This is a bill in equity brought by Mr. and Mrs. Joseph W. Tyra (hereinafter called Tyra) for rescission of a contract for purchase of land, recovery of the $1,500 down payment, and reimbursement for certain expenses incurred on the land before rescission. The ground alleged for rescission was misrepresentation by defendants of adequacy of the water supply on the land. The Chancellor found that there was misrepresentation justifying a decree of rescission, and ordered repayment of the amount received by defendants on the purchase price, but denied recovery for any expenses incurred by Tyra. An intervener, A1 Davis, asked for and was allowed a materialmen’s lien “upon the lands aforesaid” for $509.68 to be recovered “of and from the plaintiffs and defendants”, though payable primarily out of the $1,500 which Tyra was held entitled to get hack from defendants. Defendants appealed, and Tyra cross-appealed.
Tyra is a pensioned city fireman from Long Beach, Calif., who wished to retire in the Ozarks. He told de fendants ’ real estate agent, Wheeler, that he was looking for a place where he could live, operate a small business, and raise some dairy cattle and hogs. In this connection he emphasized the importance of a good water supply. Wheeler showed Tyra the place in question, which included about 100 acres of hill land with a house fronting on U. S. Highway 65, about three miles northwest of St. Joe, Ark. A part of the house constituted living quarters for a family, and the rest was equipped and used as a public restaurant. This was what Tyra was looking for, but before closing the deal he asked specifically about the water and made it clear that he would not purchase unless the water supply was sufficient for stock raising as well as for the home and restaurant. Wheeler told him there were two good springs on the land, suitable for watering stock, and that the 358-foot well near the house produced an ample water supply. On the basis of these representations Tyra on March 14, 1949, contracted to pay- $9,000 for the place, and made the $1,500 cash payment which he now seeks to recover.
When Tyra took possession of the premises about two months later he found that the well pumped only around 50 gallons of water each 24 hours, this amount being far less than enough to supply the house and restaurant. His first thought was that the pump was not operating properly and, on recommendation of A1 Davis, plumber from Harrison, he first replaced part of the pipes, then replaced the whole pump, at a cost of $509.68. When these changes were completed, about a month after they moved on the place, the plumber finally told Tyra that he had a dry well. It was producing no more water than before. Tyra also made a search for the springs that were said to be on the place, but was unable to locate them. He complained to defendants, but they did nothing, merely telling him the water supply was adequate.
In the meantime he had made certain other improvements on the premises — -repairs to the kitchen and living room at an asserted cost of $255, and fence repairs costing $89.75. The testimony indicates these repairs were made before Tyra learned that the well was practically a dry hole.
In the complaint seeking rescission, Tyra asserted that “plaintiffs are ready and willing to comply with their contract and make all payments contracted if defendants will fnrnisli the amount of water necessary to supply the home, the cafe and the livestock which plaintiffs informed the defendants they would need, and since they refuse to do anything, they are left without remedy except to have the contract rescinded.” At some time during the controversy, however, Tyra moved off the land in question, to 'another place.
The first part of the trial was held on Nov. 1 and 4, 1949, at which' time most of the evidence was taken. Defendants ’ position at this hearing was that the springs and well were adequate as represented, and that there was no real shortage in the water supply. Defendants introduced numerous witnesses who so testified. Tyra and his witnesses of course testified to the contrary. The Chancellor then declared an extended recess in the trial.
During the recess, he designated the attorney for the plaintiff and the attorney for the defendant as viewers to go on the land .and see if the springs were there. They went over the land in December, 1949, accompanied by Tyra and the realtor Wheeler, and filed a report saying “there are no springs of any kind on the tract.”
In February, 1950, defendants sent a driller to the place and deepened the well about 50 feet. At this depth it showed a regular and substantial supply of water. At the resumed trial in March, 1950, defendants admitted that the water supply from the well had been inadequate previously, but took the position that it was now adequate, and that Tyra was bound by the statement in the complaint, quoted above, to the effect that plaintiffs were willing to abide by the contract if defendants would furnish an adequate water supply. Tyra contended that this change in the theory of the defense came too late.
On this the Chancery Court sustained Tyra’s view. The holdings were that Tyra had lost the right to rely on misrepresentations concerning the springs by his own failure to check on them at the beginning, when he had ample opportunity to do so, but that the misrepresentation concerning the well did give him a right to rescind which was not lost by the defendants’ later renovation of the well. As to expenses incurred by Tyra on the well, the house and the fence, however, the Court held Tyra could not recover because he “should have found the falsity of the representations as to the supply- of water that the well would furnish within three or four days after he took possession of the land and premises”, and should not be allowed to recover for expenditures made thereafter.
We hold that the Chancellor was correct in his conclusion that defendants’ misstatements concerning the character and amount of the water supply constituted material misrepresentations. They went to the very nature and quality of the premises.purchased, and their fitness for the purposes for which Tyra made clear to defendants that he was making the purchase. This in the circumstances justified rescission of the contract. Yeates v. Pryor, 11 Ark. 58; Kincaid v. Price, 82 Ark. 20, 100 S. W. 76. And, see, Fausett & Co. v. Bullard, ante, p. 176, 229 S. W. 2d 490.
Defendants’ effort to remove the defect in the water supply, long after Tyra’s suit was filed and the case went to trial, did not destroy the right to rescind. ‘ ‘ The law is expressly written, that the right of a plaintiff must be adjudicated upon as it existed at the time of the filing of his bill. : . . And it would seem to be against the policy of a court of chancery to allow a defendant to cut off, or to modify the relief to which the whole case may show the plaintiff to have been entitled upon the condition of the case when the suit was begun, by the use of legal process or remedies after the defendant is brought into a court of equity, there to make his defense.” Hornor v. Hanks, 22 Ark. 572, 580. And, see, Vandergriff v. Vandergriff, 211 Ark. 848, 202 S. W. 2d 967.
Nor did the quoted statement in Tyra’s complaint, even if interpreted as an offer to abide by the contract should water be later furnished, remain open as a continuing offer which could be accepted by defendants at any indefinite future time. The complaint containing the alleged offer, filed on July 29, 1949, was answered by pleadings which declared that the water supply was sufficient, and that was the defense relied upon at the trial in November. It was only during the long recess in the trial, after it had become fairly apparent that the true facts would not sustain the original defense, that defendants attempted by redrilling the well in February, 1950, to shift their defense and accept the so-called offer contained in the complaint. By that time the offer, if it was one, was terminated. Defendants had rejected it both by their pleadings and by their defense at the trial, and on its rejection it ceased to exist as an offer. Restatement, Contracts, §§ 35, 36; Williston, Contracts, § 51.
The next question is on the cross-appeal, as to what relief Tyra should receive as an incident to the rescission. His right to have back the $1,500 down payment is of course clear. The Chancellor held that Tyra’s delay in inspecting the premises fully and in discovering the true facts about the water supply promptly, after he had fair opportunity to do so within the first three or four days of his occupancy of the land, barred any recovery for expenditures thereafter made. In this we believe that the Court’s conclusion went further than was justified by the preponderance of the evidence.
It is true that a purchaser may not on rescission recover for expenditures made by him on the land after he knew or in good conscience should have known that the contract of purchase would be rescinded, at least when his expenditures add nothing to the value of land, as was the ease with the $509.68 expended by Tyra on the well. Neely v. Rembert, 71 Ark. 91, 71 S. W. 259,
Bitit .the evidence indicates that when Tyra made the expenditures on the well he was in good faith assuming that the contract was valid, that he had no grounds for rksc'l^siBii"’ ánd! that the well would produce a plentiful áüpj^y'hf,I4ui'dr‘,jte represented, if he could only get tHé1‘|)-áh3^Írt§'!tíik¿Híiiyíiy to work properly. Perhaps some ¿thei'líhyks’dñ®ím/ór¿!‘fete]piHious than Tyra, or better ac-qWáihíjM'^ittoitíéíii'áttif^o-f hill country wells and pumps, recog-_ ... _t ___ _ j._dry hole. TFÜd¿r thbd¿il-bii]íl'étEiíl¿‘é,á‘^hó1ivfevdP/ tlite'e certainly was ñbthlhgiT'é¿rbI4biMblfe'/5r/4Ííi[)í'6Weií in Tj4'áHik continuing, Wfíg^^a^í!hd!did,,iwi^lí/théll¿!ffó‘i4 ÍHi¿i¿k"é'1'tl^!ii(jébss of his dfe*álí^th‘:dléféi,i.k¿ii!fSl':’''iTM*t{ Tyi^'kcted 4Ín^óbd'‘fMth i is 'J the- wéir: 'tíis'bütiaiteA ñie wdiiHíteraiidct úbMiii&m lid *leaihi¿íl>fl<ó:ní,!thféi^luíifcéP'l^l,‘p^y?á,fe£íl')ttie fMEt di^'atel It dVáte&'a'te iii<nf<]dro|ibr-!b¥f6idíí,to> cdFr’éBt'/ttíb very fact which, unknown to him, defendants had-rf-íh ,f mmotí -uíi no ni Hoi j>"»ii|> j// hi 'm!T ,i\o. boia^tíial’t’líé' mliqunt'tlLus expen’áell1 on'l'the well lo :-:i, fit'JinvlíwpTi íMJUAñl «mi 1 Ahiidy)•/•«.'1 <i>i M2ü‘!i.vif ¡T lo :-:i, fU'JinY eg líwoi) w/K«. l<i; ‘Ml f ,^ofs< ■p7.«! v, may be. recovered by Tyra'eyen though at, added fiothmg u p4w4aí#ofm ateá/ms 4»» rota» 'én'fítldá'Vo rescission" o'f a cimtracFfor purcMsé oí W&i-mr! was (WffiSPfiW te Pfeteíífi te^l0.,'fi^e;.ap4¡puj.i1ji!yaí;íomí of a •PWfSeiPff^e-ílÍP^.-PT»?]!^ $ Wtotl fffr ippajphg^e i,(fioffi sal-yage prop^ses;);,^^ stekm ;¡?hip w($b ,ao9dippapib§b byi jan ¡a?piild<>o.f j dam-agios iini-the ‘¡amáunb i o/f lexpetófe’svRéals.oiiuaWiydtídtóíle;# inítrff&g teiamisfef theí/hull ,bfifor9/itsi tííuplíbQñditioñ’, „faláely^lmisi\e^)néfeenfé'd{/ wáfe
discovered; and in Klim v. Sachs, 92 N. Y. S. 107, 102 App. Div. 44, where a plaintiff entitled to rescission was also allowed damages covering expenses incurred in making a search of the title and a survey of the premises. This $509.68 expenditure was a direct and reasonably foreseeable result of defendants’ misrepresentation, and recovery on account of it should be allowed.
As to Tyra’s asserted expenditures of $255 in improving the kitchen and living room and $89.75 in repairing the fence, a somewhat different measure of recovery is proper. Since these expenditures, according to the evidence, were made during the time when Tyra still in good faith believed that there was no such defect in the water supply as to require rescission, he is entitled to some reimbursement for them. But the measure of damages for such improvements is the amount by which the value of the premises was enhanced by them. Halcomb v. Ison, 140 Ky. 189, 130 S. W. 1070; Black, Rescission and Cancellation, <§, 636; Annot., 48 A. L. R. 12,64. The recovery should not exceed Tyra’s actual outlay for the improvements in any event, but it may be less if defendants show that the cost was greater than the enhancement in value.
This issue of enhanced value was not passed on in the Chancery Court, since it was there mistakenly held that the improvements were made too late to permit any recovery on account of them, and the record does not include any evidence on the specific point of enhancement of value. In such a situation it is proper for us to remand the case for additional proof on the point not fully developed. Brizzolara v. Poivell, 214 Ark. 870, 218 S. W. 2d 728. We do so, with directions that the Chancery Court allow plaintiff Tyra to recover, in addition to his $1,500 down payment and the $509.68 expended on the well, the amount by which the value of the premises was enhanced, as of the date of the complaint, by Tyra’s work on the house and the fence. Tyra should have a lien on the land to secure the payment of the total due him.
There is one other point on which the decree below was in error. This is as to the scope of the materialmen’s lien given to the plumber A1 Davis, apparently under Ark. Stats. § 51-701, for his $509.68 bill against Tyra for work on the well. This work was done by Davis for Tyra. Tyra was not defendants’ agent in contracting for the work; he was contracting for himself only. The decree provided that Davis should recover this sum “of and from the plaintiffs and defendants” and gave him a lien “upon the lands aforesaid.” Actually, this debt was owed by 'Tyra only, and under the statute the lien could exist only on his interest in the land, and not on defendants’ interest. Roberts v. Tice, 198 Ark. 397, 129 S. W. 2d 258, 122 A. L. R. 1177; Judd v. Rieff, 174 Ark. 362, 295 S. W. 370; Snodgress v. Huff, 234 S. W. 2d 505. Tyra’s interest in the land now exists only in the form of his rights against defendants under the decree to be entered in this case, but it is proper that the material-men’s lien be good against his interest in this changed form, and we so hold.
The case is remanded for further proceedings and entry of a decree in accordance with this opinion.
One defendant, Mary Massey, disclaimed interest in the suit, since she holds title to the land merely as a trustee for the Citizens Bank of Marshall, Ark., and the Reconstruction Finance Corporation, true owners of the land, also defendants, who acted through defendant Albert Wheeler, a real estate agent, in making the sale to plaintiff Tyra. | [
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Carleton Harris, Chief Justice.
On February 3, 1972, James Fant, appellant herein, entered a plea of guilty to the charge of grand larceny and was given a ten year sentence by the Miller County Circuit Court. The court suspended the sentence conditioned upon good behavior and “leaving alcohol alone”, making the following pertinent remarks at the time.
“Your problem apparently is drinking, and then you don’t leave other people’s stuff alone. *## A man with a wife and six children, and a woman — the mother of those children, who has had cancer, and then, times as hard as they are around your house — it has to be. *** And you don’t have any money in that dollar at all to buy any kind of hooch. When you take one drop of anything, you are taking a piece of bread out [of] one of those kid’s mouth, and they are going to have to live on wind pudding. If they do, you are not going to be here to see it. Let me tell you one other thing. I am going against the recommendation of the law enforcement officials by giving you a suspended sentence. I may make a mistake in your case one time. I don’t plan on making it twice.”
The matter of Fant’s refraining from the use of alcohol was mentioned forcefully several times and appellant apparently fully understood, stating, “I can leave alcohol alone. I guarantee that I can.” Subsequently, on July 26, appellant was arrested in Texas by Officer Dale Hampton of the Texas Highway Patrol and charged with driving while intoxicated, following an automobile accident. On August 31, a hearing was conducted by the Miller County Circuit Court as a matter of determining whether the suspended sentence given Fant should be revoked. Officer Hampton testified that following the accident, he administered a breathalizer test, and after stating his qualifications for giving the test, stated that Fant checked 0.18 which, under Texas law, established that he was under the influence of alcohol.
The officer also said:
“He was definitely intoxicated. He acted intoxicated; he was unsteady on his feet; and in my opinion, he was in an intoxicated condition.
BY THE COURT: Did you smell any intokicants on him?
THE WITNESS: Yes, sir, I could smell intoxicants on his breath.”
On cross-examination, Hampton testified that Fant told him that he had had “one beer and one drink of whiskey.” Appellant testified that a friend gave him a drink of whiskey, stating to him that “just one drink won’t hurt you” and that he had also had “two beers”; that he had “chunked the beer out — the last can out” about five minutes before the accident occurred. At the conclusion of the hearing, the court revoked the suspended sentence, stating:
“This is the third occasion that you have been brought back in here for a revocation, and because of your children and your wife, I have given you two additional chances. You have been in trouble before, and I told you after you had advised me that your troubles always came after you drank; that for you not to take one drop of alcohol, didn’t I? *** And after the last petition, and there was evidence that you had been drinking, I told you I would give you one other chance, didn’t I?
THE WITNESS: Yes, sir.
THE COURT: And then you go out and get liquor and beer when you know what it does to your system. Alcohol to your system is just exactly like strychnine is to other people.
Therefore, you are hereby sentenced to the Arkansas Department of Corrections for ten years, and the clerk will put on his commitment that there were three petitions for revocation; that you were given two additional chances, but the third chance after a suspen-si on, it was revoked, ***.”
On this appeal from the revocation, two points are relied upon, viz., that the revocation was an abuse of discretion by the trial judge, and second, that the appellant was unlawfully returned from the State of Texas to this state for the revocation hearing, contrary to his rights under the United States Constitution.
Appellant concedes that the action of the court in revoking the suspended sentence will not be reversed on appeal unless there has been a gross abuse of the trial court’s discretion. Calloway v. State, 201 Ark. 542, 145 S.W. 2d 353. It is then asserted that the revocation occurred “because of the fact that the appellant consumed one drink of whiskey and two cans of beer.” We cannot agree with this assertion; rather, it appears that the suspension was revoked because of evidence that Fant was intoxicated, such evidence being presented in court at a hearing, and appellant being represented by counsel. In Spears v. State, 194 Ark. 836, 109 S.W. 2d 926, Spears had pleaded guilty to grand larceny, the court, however, suspending sentence “during good behavior.” Subsequent thereto, the suspension was revoked and inter alia, Spears asserted that the evidence was insufficient to justify the revocation. We disagreed, stating:
“Here, the evidence was sufficient to justify the court in exercising the discretion it did as the evidence on the part of the state was to the effect that appellant was drunk, was cursing in a public place, and had a fight with one Jack Fulmer.”
In addition, it will be noted that the court mentioned that this was the third occasion that a revocation had been sought by the State, and that the court had refused to earlier revoke the suspension, giving appellant additional opportunities to properly conduct himself.
It is apparent that the trial court had, contrary to appellant’s .allegations, been rather lenient with Fant, and we certainly find no abuse of discretion in revoking the suspended sentence.
Nor do we find any merit in appellant’s second contention. It is asserted that there is no evidence in the record that Fant consented to being removed from the State of Texas to the State of Arkansas, and that there was no extradition proceeding initiated and followed by this state. Of course, on the other hand, though appellant testified, there is no evidence that he was returned to this state against his will, nor was any such contention advanced at the hearing. The subject does not appear in any manner in the trial court. No authority is cited in appellant’s brief, and only three paragraphs are devoted to this point. Even if there were evidence that Fant’s return to this state was involuntary or accomplished by force, it would not appear there is merit in the contention. As early as 1885, this court held contrary to appellant’s contention. See Elmore v. State, 45 Ark. 243. In United States v. Vicars, 467 F. 2d 452 (1972), Cert. denied March 5, 1973, the United States Court of Appeals for the Fifth Circuit, in denying a similar contention, stated:
“Even if, as Gonzales claims, he was illegally arrested in the Panama Canal Zone and brought to the United States, this is not grounds for requiring that the trial court release and discharge him without trial. E. g., Frisbie v. Collins, 342 U.S. 519, 522, 72 S. Ct. 509, 511, 96 L. Ed. 541, 545 (1952) (‘This Court has never departed from the rule . . . that the power of a court to try a person for crime is not impaired by the fact that he has been brought within the court’s jurisdiction by reason of a “forcible abduction.” ’); Stamphill v. Johnston, 136 F. 2d 291, 292 (9th Cir.) cert. denied, 320 U.S. 766, 64 S. Ct. 70, 88 L. Ed. 457 (1943) (‘The personal presence of a defendant before a District Court gives that court complete jurisdiction over him, regardless of how his presence was secured, whether by premature arrest. . . wrongful seizure beyond the territorial jurisdiction of the court . . . false arrest ... or extradition arising out of an offense other than the one for which he is being tried.’); United States ex rel. Voigt v. Toombs, 67 F. 2d 744 (5th Cir. 1933), petition for cert. dismissed, 291 U.S. 686, 54 S. Ct. 442, 78 L. Ed. 1072 (1934) (‘It is well settled in the courts of the United States that jurisdiction once acquired in a criminal case is not impaired by the manner in which the accused is brought before the court.’).”
Affirmed.
In Jarvis v. Alcoholic Beverage Control Board, 253 Ark. 724, 488 S.W. 2d 709, Officer Jim McClure testified relative to intoximeter tests given to persons arrested for drunkenness. From the opinion:
“McClure explained the procedure in giving the tests and said that the final reading on Arlis Lee was .18%. The witness explained that .10% supports a charge of driving while intoxicated and a .15% or over is public drunkenness.”
On June 14, the prosecuting attorney’s office had filed a petition asking for revocation of the suspension on the basis of the fact that Fant had been involved in a fight and jailed for aggravated assault in Texarkana, Texas. The field report of the probation officer reflected that the complaint had been filed by Fant’s wife, Fant and her brother having engaged in a fight, and Mrs. Fant being cut and stabbed on the arm and in the side by appellant when she tried to break up the fight. The recommendation was that probation be revoked but the court, as stated, did not enter such an order at that time. | [
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George Rose Smith, Justice.
In 1912 the appellees’ predecessors in title, Arthur Pierce and his wife, signed a printed form of Right of Way Deed conveying to the appellant railway company a 100-foot easement across a 40-acre tract and also an easement or conditional fee in a 200x680-foot strip lying along the north side of the right-of-way easement. The railway company is still using the 100-foot easement for its main line. That easement is not in controversy.
This litigation involves the 200-foot strip. In 1980 the appellees brought this suit to establish absolute title to the strip, on the theory that the railway company had abandoned its estate in part of the strip by conveying that part to the other appellant, Mary Ann Boyd, in 1978, and had abandoned its estate in the rest of the strip by ceasing to use it for railway purposes. The chancellor construed the 1912 deed as having conveyed an easement in the disputed strip. He held that the easement in both parts of the strip had been abandoned and entered a decree sustaining the appellees’ title to the entire strip. For reversal Miss Boyd argues she has title to her part of the strip because it has not been used for railway purposes for more than 50 years. The railway company argues, upon an opposite theory, that its part of the strip has always been used for railway purposes and hence has not been abandoned.
The chancellor’s decision was right. The 1912 printed form of deed conveyed primarily a 100-foot right of way across the Pierces’ 40 acres. Between the granting clause and the habendum, however, the draftsman inserted in longhand, after the description of the 40 acres, the following words: “Also a strip on the north side of said right of way 200 feet wide by 680 feet long____Said grounds to be used only for railroad purposes.” Quite evidently the additional grant was inserted to provide a site for the Fountain Hill depot, which was maintained for many years before the depot bulding was sold to a third person and removed less than three years before this suit was brought in 1980.
We do not see that it makes a bit of difference whether the grant of a limited estate in the 200-foot strip is construed as an easement or as a conditional fee. Under either interpretation the strip was to be used for railroad purposes. As long as any part of it was so used, the Pierce family had no clear-cut right to assert its underlying claim to the property. See Campbell v. Southwestern Tel. & Tel. Co., 108 Ark. 569, 158 S.W. 1085 (1913). Thus the key issues are how long the property was used for railroad purposes and when it ceased to be so used.
There was no physical separation, such as a fence, between the east part of the strip, the “gin lot,” now claimed by Miss Boyd, and the west part, the “vacant lot,” claimed by the railway company. As in any instance of possible hostile possession of land, the Pierces were chargeable with notice of only such claims as were reasonably apparent from the uses being made of the property. The Fountain Hill railway station was on the strip, or on the adjoining right of way, until it was removed in 1977. The cotton gin on the gin lot was built under a lease from the railway company and was served by a spur track. That track was taken up perhaps three or four years before this case was tried. Presumably the lease and spur tract were profitable to the railway company and were arguably for railway purposes within the terms of the 1912 deed. But in 1978 there was a clear abandonment of part of the property for railway purposes, when the railway company conveyed the gin lot to Miss Boyd. After that there was no visible indication that the rest of the property — the vacant lot — was being used for railway purposes. At the trial the railway company produced no proof that it had any immediate or future plan to use the vacant lot in the furtherance of its business. The chancellor was justified in concluding that by 1978 the railway company had permanently abandoned its right to use the property. The Pierces were accordingly entitled to clear their title and regain possession.
The appellees’ request for the cost of a supplemental abstract is denied.
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Hart, C. J.
John Daniels has prosecuted this appeal to reverse a judgment of conviction against him for the crime of murder in the second degree. The jury trying him has fixed his punishment at twenty-one years in the State penitentiary.
It is first insisted that the judgment should be reversed because the court erred in refusing to grant the defendant’s motion for a change of venue. Under our statute, the allegations for a change of venue in a criminal case must be supported by the affidavits of two credible persons, who are qualified electors, actual residents of the county, and not related to the defendant in any way. The statute, however, does not provide how it shall be shown that the affiants are credible persons. This is left to the court to determine. The court may permit the witnesses themselves to be examined or it may hear the testimony of other witnesses bearing on the credibility of the affiants, but it cannot go into the question of whether the facts sworn were true or false. White v. State, 83 Ark. 36, 102 S. W. 715 ; Strong v. State, 85 Ark. 536, 109 S. W. 536, 14 Ann. Cas. 229 ; Latourette v. State, 91 Ark. 65, 120 S. W. 411 ; Whitehead v. State, 121 Ark. 390, 181 S. W. 154 ; Hale v. State, 146 Ark. 579, 226 S. W. 527 ; Adams v. State, 179 Ark. 1047, 20 S. W. (2d) 130.
Tested by this well-settled rule, it cannot be said that the court abused its discretion in not granting a change of venue. We do not deem it necessary to set out in detail "the examination of the witnesses as to the credibility of the supporting affiants. We deem it sufficient to say that we have carefully examined it and are of the opin ion that the court was justified in finding that they did not have knowledge of the conditions of the minds of the inhabitants throughout the entire county, and were not therefore credible persons within the meaning of the statute.
Besides this, the supporting affiants did not comply with the statute by stating that they were qualified electors and not related to the defendant, in any way. Padgett v. State, 171 Ark. 556, 286 S. W. 819 ; and Adams v. State, 179 Ark. 1079, 20 S. W. (2d) 119.
According to the evidence for the State, the defendant shot and killed Mildred Jobe, a young girl, at the home of her parents in Nevada County, Arkansas, on the 8th day of July, 1980'. John Jobe, her father, was a spe-' cial deputy sheriff, and a few days before had arrested a son of John Daniels, and had taken a gun away from him. On the day of the killing, John Daniels approached the house of John Jobe with a single barrel shotgun in his hand. He asked Mrs. Jobe where her husband was. She informed him that he was plowing back of the house. The defendant went on back of the house, and Mrs. Jobe followed him by going through the house. The defendant asked Mrs. Jobe if her husband had arrested his boy. She replied, “Yes, sir.” The defendant then asked her if John Jobe had the gun. She replied, “No, sir, the sheriff has it.” The defendant then said, “They can have my boy, but that is my gun, and John must get it.” When the defendant met John Jobe, he said, “I have got to have my gun. Where is it?” Jobe replied that the sheriff had it. The defendant then commenced cursing, and said that he would job his gun clear through him if he didn’t get it. The defendant put his gun right in Jobe’s stomach, and John Jobe grabbed the gun with both hands. Mildred Jobe came up and grabbed the gun barrel, and the defendant gave her a push with the gun and shot her in the side. She lived about thirty minutes.
The above is the testimony of Mrs. John Jobe, and it was corroborated by Velma Jobe, a sister of the de ceased. Both Mrs. Jobe and her daughter testified in addition that John Jobe struck the defendant with his fist before the gun fired. Velma Jobe said that the defendant was doing his best to get the gun on her father to shoot him when her sister grabbed hold of the gun with both hands. The defendant then shoved her so hard that she turned loose of the gun and he then shot her. The defendant pulled the trigger at the time the gun fired.
According to the testimony of the sheriff of Nevada Cbunty, the gun was a hammer gun, that is, it was a gun that you had to pull the hammer back and then pull the trigger to fire it. "When he pulled the hammer back, it would rest until the trigger was pulled.
According to the evidence of the defendant, he did not intend to kill either John Jobe or his daughter. He was not mad at John Jobe and only came there to get his gun. He said the killing was wholly accidental.
Under our rules of practice, the jury is the judge of the credibility of the witnesses and the weight to be given to their testimony. The jury was justified in finding that the defendant was trying to shoot John Jobe, and that the gun was fired and killed John Jobe’s daughter while the defendant was endeavoring to shoot the father. They might have found that the gun was not discharged accidentally after John Jobe struck the defendant with his fist. According to the testimony of the sheriff, the gun was a hammer gun, and it was necessary to pull the hammer back before the trigger could be pulled to fire the gun. The witnesses for the State testified that the defendant was trying to shoot John Jobe when the latter’s daughter came up and grabbed the gun in an effort to save her father. The jury might have' found that the defendant had pulled the hammer back and was ready to fire the gun before John Jobe struck Kim.
If he had killed John Jobe, the jury would have been justified in. finding him guilty of murder in the second degree. The leading characteristic of murder in the second degree is the presence of malice, distinguishing it from manslaughter, and the absence of premeditation and deliberation. The attendant circumstances warranted the jury in finding that the defendant was actuated by malice in trying to shoot John Jobe. When the accused shoots at one man and kills another, malice will be implied as to the latter, and the felonious intent will be transferred. Brooks v. State, 141 Ark. 57, 216 S. W. 705.
It is insisted that the judgment should be reversed because the court erred in its instructions to the jury on murder in the first deg’ree. The jury found the defendant guilty of murder in the second degree, and thus removed all prejudice which might have resulted from erroneous instructions on murder in the first degree. Witham v. State, 149 Ark. 424, 232 S. W. 437 ; Williams v. State, 162 Ark. 285, 258 S. W. 386 ; and Sullivan v. State, 163 Ark. 353, 258 S. W. 980.
It is next insisted that the court erred in giving an instruction to the jury to the effect that if the defendant was attempting to shoot John Jobe with the gun at the time it fired and killed his daughter, then the defendant would stand in the same postition as if he had actually killed John Jobe. There was no error in giving this instruction. It is quite lengthy, and we need not set it out. We deém it sufficient to say that in form it complied with the principles of law decided in Brooks v. State, supra.
Counsel for the defendant insists that there was no testimony upon which to base it, and for that reason it was erroneous. We cannot agree with counsel in this contention. As we have already seen, the gun with which the deceased was killed was a hammer gun, and it was necessary to pull the hammer back before it could be fired by pulling the trigger. The jury might have found that the defendant had pulled the hammer back in an effort to shoot John Jobe, and that he pulled the trigger in an effort to do so and that the daughter of John Jobe was killed when the gun was fired. Although she had turned the gun loose when the defendant pulled the trigger, the jury was warranted in finding that he had already cocked the gun and was trying to kill John Jobe before the latter struck him and before the gun was actually fired. This warranted the jury in finding a verdict against the defendant of murder in the second degree because it might have found from the attendant circumstances that the defendant was actuated by malice at the time he was endeavoring to shoot John Jobe, and shot the latter’s daughter.
We find no prejudicial error in the record, and therefore the judgment will be affirmed. | [
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Minor W. Millwee, Justice.
Appellant, E. P. Loy, brought this action under the Usurpation Statute (Ark. Stats., §§ 34-2201 — 2209) seeking to oust appellee, Johnny Bean, from the office of school director. This appeal challenges the correctness of the trial court’s action in dismissing appellant’s complaint under the undisputed facts disclosed by the pleadings.
The facts are: School District No. 19 of Johnson County was created under Initiated Act No. 1 of 1948. Pursuant to the provisions of Act 324 of 1949, the district was divided into five zones and a special election was held on July 5, 1949, for the election of directors of the new district. Loy and Bean were candidates from Zone 2 and Bean was elected and qualified as director. The five newly elected board members met and determined the length of their respective terms by lot as provided in § 2 of Act 324, supra, Bean drawing the short term of one year. At a regular school election held, on September 27,1949, Loy was elected and qualified as a director from Zone 2. Subsequently the County Board of Education held and ordered that Bean’s term of office would continue for a period of one year from his election on July 5, 1949, and thereafter until his successor was legally elected. Loy prayed an appeal from this order to the circuit court and on April 21, 1950, the appeal was dismissed for want of jurisdiction. Loy filed the. instant action on May 11, 1950.
The trial court held that Bean, being elected director July 5, 1949, for a one-year term, would hold office until July 5, 1950, and until legally succeeded, or until the regular school election in September, 1950; and that, as a matter of law, there was no vacancy when Loy was elected in September, 1949. Appellant’s contention for reversal is that the court erred in refusing to hold that appellee’s term of office had expired on September 27, 1949, when appellant sought to succeed him at the regular school election.
Under the provisions of § 1 of Initiated Act No. 1 of 1948, Acts 1949 (p. 1414) School District No. 19 was automatically formed on June 1, 1949, comprising all districts in the county, with less than 350 pupils of school age, which had not been merged with some other district between the date of the adoption of the initiated act and March 1, 1949. Upon formation of the new County, or United, District the smaller districts lost their previous status as separate districts. Stroud v. Fryar, 216 Ark. 250, 225 S. W. 2d 23.
Section 2 of Initiated Act No. 1 provides for the election of board members of the County District and states that the length of their terms ‘ ‘ shall be determined in accordance with provisions of existing law”. Act 324, supra, was duly adopted with an emergency clause and became effective upon its approval March. 19, 1949. Hence, the act was a part of “existing law” at the time of the formation of District 19. After stipulating that the five directors of the new district shall determine the length of their respective terms of from one to five years by lot, § 2 provides: ‘ ‘ Thereafter, one member shall be elected at each annual school election for a term of five (5) years; provided, that any member of the board of education shall hold office until his successor has been elected and qualified. . . .”
We hold that the trial court correctly interpreted the statutes and that it was not the intention of the Legislature to provide that a director who was first elected to the one-year term should hold office for only two months and 22 days, or until the next annual school election. It is more reasonable to assume from the language used that it was intended that the director first elected should hold office for the term of one year specified in the act, after which time one director should be elected at each annual election for a five-year term. Under this interpretation of the statutes, it follows that Bean’s term of office had not expired and there was no vacancy in the office when Loy was elected at the election held September 27, 1949.
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Carleton Harris, Chief Justice.
Ernest R. Sullins (appellant herein), prior to October 9, 1969, lived in the small community of LaHarpe, Illinois, being employed by Fred Gibb Chevrolet, Inc. On the aforementioned date, pursuant to a written purchase money security agreement, Sullins purchased a new 1970 Chevrolet Impala from his employer, appellant having knowledge that the contract was assigned without recourse on the same day to Thrift Plan, Inc., appellee herein. Sullins made no down payment, the contract providing that the entire purchase price, including interest and amounting to $4,188.22, would be due and payable one year later, October 9, 1970. The agreement provided inter alia that the buyer would not sell, transfer, abandon, or encumber the vehicle, and that should the holder of the paper deem itself or said vehicle insecure, the full balance should become immediately due and payable without notice or demand and Thrift Plan, Inc. would be entitled to take possession of the automobile wherever found. Sullins operated the car from that date until the middle of March, 1970, at which time he terminated his employment and came to Arkansas, leaving the automobile with another Gibb Chevrolet salesman, Herb Fox, with certain instructions, hereinafter discussed. Subsequently, appellee learned that the automobile had been left with Fox, and it was repossessed by it, notice being given to appellant by certified mail on September 11, 1970 of the repossession and advising that the car would be sold pursuant to the Uniform Commercial Code unless Sullins paid for the automobile within ten days. No payment being made, appellee advertised the public sale in a Burlington, Iowa newspaper, but being unable to sell the automobile at said sale, the car was subsequently sold by private sale to the aforementioned Herb Fox for $2,500, resulting in a deficiency to the company of $1,686.62. Thrift Plan, Inc. instituted suit in the Jackson County, Arkansas Circuit Court for the deficiency, and Sullins counterclaimed for damages, totaling $9,988.22. Appellee moved for a summary judgment on this counter-claim in its favor, which was granted, and Thrift Plan, Inc. then dismissed its cause of action against Sullins, who has appealed the granting of the summary judgment on his counter-claim. Though three points are asserted by appellant, all relate to whether the granting of the summary judgment was proper under the facts, hereinafter related.
After the joining of the issues, interrogatories were submitted by Sullins to the company seeking the names of those to testify and a narrative summary of the testimony to be given by these witnesses at the trial of the cause. The names were listed in the response, together with their purported testimony, reflecting that Robert W. Berry, manager of the company store at West Burlington, Iowa, would testify that in Mid-March of 1970, Fox had advised Berry that the automobile purchased by Sul-lins had been left at the Gibb Chevrolet Company with instructions that it be sold, and Sullins had further told Fox that he would be willing to take a loss in order to get rid of the automobile; since the contract prohibited the sale of the car by Sullins, Berry took the automobile into possession so that it could be sold by appellee; no suitable buyer was found, i.e., one that would make a bid approaching the amount of the indebtedness. On September 11, the company notified Sullins that it was going to sell the car and not hearing from him, it did make the sale to Fox on September 24, 1970 after taking three bids, and determining that $2,500 was the highest, leaving a balance due on the automobile of $1,686.62.
Further answering, appellee stated that Bruce Ecker-man, a resident of Des Moines, Iowa, would testify that sometime during the summer of 1970, Sullins went to the Thrift Plan, Inc. office in Burlington, demanding possession of the car, but refused to pay for it, and possession was accordingly denied. Answers to further interrogatories revealed that the car had been repossessed at LaHarpe on approximately May 1, 1970. The answer to the final interrogatory set out that while payment for the car was not due until October 9, 1970, the agreement calling for it to be paid for in a one lump sum payment, the company upon learning that Sullins had left his employment at Gibb Chevrolet, had left the state after leaving the car for sale, deemed itself and the car to be insecure, and it thus considered the balance to be immediately due and payable.
It is not clear whether the answers were considered by the court in granting its summary judgment, several of the replies, of course, being improper and inadmissible, viz., those that deal with what other people would testify to. In Organized Security Life v. Munyon, 247 Ark. 449, 446 S.W. 2d 233, this court said:
"It must be affirmatively shown, or appear from statements contained in any affidavit supporting or opposing a summary judgment, that it is based upon personal knowledge of the affiant, that the facts stated therein would be admissible in evidence and that the affiant is a witness competent to state these facts in evidence.”
Thereafter, appellee submitted Requests for Admissions to Sullins, some of which were admitted, and others denied. Denials which appear particularly pertinent as to whether summary judgment should be granted are as follows:
“Request (22) Admit that you instructed Fred Gibb to sell said automobile for you.
RESPONSE: Denied in the form of the request since I left the automobile with Fred Gibbs under the instruction to obtain an offer in a sufficient amount to pay off the contract to Thrift Plan, Inc., but not to violate any of the terms of the contract.
Request (23) Admit that you instructed Fred Gibbs to sell said automobile, if necessary, for a loss.
RESPONSE: Denied.
Request (24) Admit that you gave no notice to plaintiff of your intention to leave LaHarpe, Illinois.
RESPONSE: Denied in the form of the request. ***
Request (40) Admit that the plaintiff used commer-ciable reasonableness in the aforesaid sale of said automobile.
RESPONSE: Denied.”
Thereafter, appellee moved for summary judgment, chiefly relying upon the answers given to the Requests for Admissions. In his response to the motion, Sullins asserted that nowhere in his response did he admit a vio lation of the terms of the contract; that he never sold, abandoned, transferred or encumbered the vehicle, and he specifically denied that he left the vehicle with Herb Fox with instructions to sell and dispose of same as reflected by his answer to Request (22). This response was supported by his own affidavit wherein he stated that he had left the Chevrolet with Herb Fox with instructions to obtain an offer or purchase in a sufficient amount to pay off the contract at Thrift Plan, Inc., “not to sell and dispose of vehicle.” He stated that he contacted Fox Frequently and inquired regarding offers concerning the vehicle; further, that he returned to LaHarpe with intentions to obtain the automobile and keep it, and discovered that it had been taken by the manager of Thrift Plan, Inc. The affidavit closed with the following paragraph:
“When I left said automobile, Bob Berry, Manager of Thrift Plan, Inc., had full knowledge of the facts that the car was left with Herb Fox so that he might obtain offers to purchase. Bob Berry never voiced any objections whatsoever to these arrangements.”
Subsequently, appellant served Requests for Admissions of facts on appellee, these not being answered, and the record reflecting that an extension of time until March 15, 1973 was granted within which to respond. No response to the requests, however, was filed, and appellant asserts that they should be considered as admitted. Appel-lee states that since, after the summary judgment was granted, it dismissed its complaint seeking a deficiency judgment, the question becomes moot because the facts requested to be admitted, if admitted, would only go to the reduction of appellee’s deficiency claim. This does not necessarily follow.
Appellee, in its argument, calls attention to the fact that the contract expressly provided that Sullins could not sell, transfer, abandon, or encumber the automobile, and that should the company consider itself or the automobile insecure, it would be entitled to take possession of the car; it thus contended that Thrift Plan, Inc. was justified in repossessing the Chevrolet under the admitted factual situation, even though the lump sum purchase price and interest were not due and payable until October 9, 1970. Further, from the brief:
“It should be remembered that the appellant was employed by the seller, and the employment factor was obviously the reason for the liberal terms of the purchase contract since the appellant paid nothing' down on the purchase price, which, together with interest, was not made due and payable until one year later. Further, the appellant drove and had the use and benefit of the automobile in excess of five months, and he has never paid one cent on the purchase price. Without any notice to the appellee, the appellant terminated his employment with Fred Gibb Chevrolet, Inc., and left the state, having left the automobile with Herb Fox, a salesman for Fred Gibb Chevrolet, Inc., with instructions for the apparent sale thereof — even at a loss!”
Let it be remembered, however, that this litigation involves a summary judgment and the object of the procedure in such a case is not to determine an issue, but rather to determine whether there is an issue to be tried; to dispose of litigation on motion only when facts are not disputed and the law can be applied to them. Ashley v. Eisele, 247 Ark. 281, 446 S.W. 2d 76. Let us compare appellee’s argument with appellant’s responses to the Requests for Admissions. To Request (6), “Admit that prior to October 9, 1969, you informed your employer that you desired to buy a new car from it”, the answer was, “Denied in the form presented in this Request.” Request (7), “Admit that your employer arranged for you to purchase a new car” was answered, “Denied in the form presented in this Request.” There is nothing in the record which sets out as uncontroverted that the employment factor was obviously the reason for the liberal terms of the purchase contract. The statement that appellant terminated his employment with the Gibb Chevrolet Company without notice to appellee is disputed, Sullins stating in his affidavit that Berry, Manager of Thrift Plan, Inc. had full knowledge that the car was left with Fox so that he might obtain offers to purchase, and that Berry never voiced any objections to the arrangement.
It is argued by appellee that the matters mentioned, together with the fact that the automobile had depreciated in value due to time and use, and appellant had nothing invested in the automobile, clearly gave it the right to take possession of the vehicle in order to preserve and protect its security. Ark. Stat. Ann. § 85-1-203 (Add. 1961) provides that every contract or duty within the Uniform Commercial Code imposes an obligation of good faith in its performance or enforcement. Here, therefore, for a summary judgment to be justified, it must be definite and obvious that no fact question is involved as to whether appellee acted in good faith in repossessing the automobile, i.e., acted in good faith at the time it was taken.
We cannot agree that the record makes that fact so clear that it can be said, as a matter of law, that this was established. There are several matters which, we think, indicate this to be a jury question. Let if first be remembered that the car was taken several months prior to the due date of the note from Sullins. Next, it is denied by appellant that he left the car to be sold. Additionally, in his affidavit, he stated that Berry knew that the car was left with Fox in order to obtain offers of purchase and that Berry voiced no objections to such arrangement.
The Requests for Admissions, relating to use of the automobile after repossession, were never answered, ap-pellee obtaining an extension of time until March 15, 1973 within which to respond. The record only further reflects appellant’s motion filed on March 22 asking the court that the facts stated in the Requests for Admissions be deemed admitted. No order of the court appears and the motion for summary judgment was heard the next day, and judgment subsequently filed on March 29. Appel-lee, in its brief, gives its reasons why these requests were not answered, but, of course, not being a part of the record, such information cannot be considered.
Nor does the court’s order reflect whether the Requests for Admissions were considered by the court.
At any rate, we think factual issues were raised, and the granting of the summary judgment was erroneous.
Reversed and remanded.
The names “Gibb” and "Gibbs” are both used in the record and abstract.
From the record:
“(1) Admit that Robert W. Berry, agent and branch manager of Thrift Plan, Inc. obtained possession of the 1970 Chevrolet owned by Ernest R. Sullins from Fred Gibb Chevrolet Company within two weeks after it was left in the possession of Fred Gibb Chevrolet Company by Ernest R. Sullins.
(2) Admit that Robert W. Berry drove said Chevrolet to Denver, Colorado, while he was on vacation after obtaining possession of said automobile.
(3) Admit that Robert W. Berry loaned said Chevrolet to Carl Ward, Denmark, Iowa while Robert W. Berry used Carl Ward’s pick-up truck during July, 1970.
(4) Admit that at the time said Chevrolet was loaned to Carl Ward, there was more than 11,000 miles on said car.
(5) Admit that Robert W. Berry used said Chevrolet for personal use during the day and night.
(6) Admit that Robert W. Berry was having marital difficulties during this period of time, and that he used said Chevrolet while dating and going to nightclubs.
(7) Admit that Wayne Lee’s speed shop, Burlington, Iowa, reduced the number of miles shown on the odometer by approximately 5,000 to 8,000 miles at the direction of Robert W. Berry.
(8) Admit that all of the above incidents took place prior to notifying Ernest R. Sullins that the car had been repossessed by Robert W. Berry, agent and branch manager of Thrift Plan, Inc.”
Another interesting fact is that in answering the interrogatories, Berry indicates in his reply to Interrogatory No. 1 that the car was repossessed in Mid-March, though in his reply to Interrogatory No. 2, he states that the car was repossessed in late April or around May 1, 1970. Berry also stated that he would testify that between May 1 and July 21, the car was kept at the office of Thrift Plan, Inc. in Burlington, Iowa, during the day and was driven home for “safekeeping” at night by Berry, and this same procedure was followed during July, August and September. This fact could well, particularly when taken in connection with the Requests for Admissions served upon Berry, raise a fact question as to whether the automobile was repossessed for security purposes, or perhaps repossessed for the personal benefit of Berry. | [
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Richard B. Adkisson, Justice.
This is the second time that appellant, T. J. Hayes, has been convicted by a jury of the capital felony murder of his girlfriend, Catherine Carter, and a cab driver, J. W. Lunsford, and sentenced to death. On the first appeal we reversed and remanded, Hayes v. State, 274 Ark. 440, 625 S.W.2d 498 (1981). We now affirm.
At trial, the girlfriend’s parents testified that on the afternoon of July 16, 1979, appellant and their daughter, who were both black, were at their home in Pine Bluff. By previous agreement with the Yellow Cab Company, a cab was to pick the daughter up for work at about 2:30 p.m. each afternoon. On that particular day when the cab with a white male driver arrived, their daughter and appellant got into the cab. At approximately 2:30 p.m. that same afternoon a security officer on duty in front of the Arkansas Department of Correction Administration Building saw appellant and a black female in Yellow Cab No. 11, driven by a white male, pass by going about 20 miles per hour on Princeton Pike.
According to a statement appellant gave to the police, he told the cab driver to drive out on Princeton Pike where they stopped at an unoccupied house. All three got out, and appellant, who was armed with a .38 caliber pistol, told the cab driver to go back to town. The cab driver made a move as though he was attempting to disarm appellant, and appellant shot him twice. Appellant and the girlfriend then entered the house, where the girlfriend told him to forget her, that she did not want to see him anymore because she was interested in someone else. Appellant shot her twice. Appellant then drove the cab to Townsend Park and hid it in a wooded area.
At about 3:30 p.m. the security officer saw appellant driving the cab in which he had seen the three of them earlier. Later that day between 4:15 p.m. and 4:30 p.m. appellant walked into the Jefferson County Sheriff’s Office and announced that he wanted to turn himself in saying, “I think I just killed my girlfriend.” He then led officers of the Pine Bluff Police Department to the scene of the crime and to the place where he had hidden the cab. About 7:30 p.m. that evening, after being fully advised of his rights, he gave a statement to officers from the sheriff’s office, and signed a waiver form. We find sufficient evidence to support the jury’s finding that appellant was guilty as charged.
Appellant argues: that he was denied an impartial jury because the jury selected was “death qualified” and therefore was biased in favor of the prosecution; and that the Arkansas death penalty is unconstitutional. This court has consistently rejected each of these arguments. Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981); Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981); Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980), cert. denied, 450 U.S. 1035, 101 S. Ct. 1750 (1981) ; Williams v. State, 276 Ark. 399, 635 S.W.2d 265 (1982) . Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977); Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979).
Appellant argues that he has not been accorded equal protection of the law in violation of the United States Constitution Amendment 14 because the speedy trial provisions of A.R.Cr.P. Rules 28.1 — 30.2, Ark. Stat. Ann., Vol. 4A (Repl. 1977) distinguish between persons serving a term of imprisonment on another conviction while awaiting trial on the principal charge (must be brought to trial within eighteen months), and persons incarcerated as a result of the principal charge to be tried (must be brought to trial within eighteen months, but entitled to release from incarceration after nine months). We reject this argument because neither is entitled to absolute discharge until after eighteen months under Rule 30. Furthermore, appellant has failed to show any prejudice resulting from his incarceration prior to trial.
Appellant’s other arguments regarding his right to a speedy trial were resolved on his first appeal, Hayes v. State, supra and will not be considered again.
Appellant argues that the trial court erred in admitting certain photographs and slides which were allegedly redundant and introduced solely to inflame the jury. Even inflammatory photographs are admissible in the sound discretion of the trial court if they tend to shed light on any issue or are useful to enable a witness to better describe the objects portrayed or the jury to better understand the testimony. Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979). Here, the trial court could have concluded that the photographs and slides would help the jury to understand the crime scene, the sequence of events, and the nature of the wounds inflicted. Also, a photograph is not rendered inadmissible merely because it is cumulative. Prunty v. State, 271 Ark. 77, 607 S.W.2d 374 (1980). We will not reverse the decision of the trial court unless there is a clear abuse of discretion; no such abuse has been shown here.
Appellant argues that the trial court erred in not granting a mistrial when, during direct examination, a defense witness referred to the fact that appellant had been paroled:
[Mr. Jamison, Attorney for Appellant]
Q You did counsel Mr. Hayes personally on a few occasions.
[Witness Bessie Lancelin]
A Yes.
Q Just what does that entail — the counseling session?
A Well, it would depend. In his particular situation he had been referred to us by his probation officer at that time because he had been recently paroled. So it would vary with different people. And we had to set up a plan that was individualized that would meet his particular needs. You want to know what I said to him at the time that he came in?
After the witness had been cross-examined, the following exchange took place in chambers:
Mr. Jamison: Your Honor, I do have one more motion to make. During the testimony of Bessie Lancelin, and without my — I guess I did solicit the answer. Ms. Lancelin did refer to the fact that Mr. Hayes was on parole, and I did not do this in order to try to create some technicality for a new trial, but I do feel that that answer was — or the referral to Mr. Hayes’ being on parole was prejudicial, and for that reason I would move for a mistrial.
The Court: Of course, the Court heard the testimony and I’m willing to instruct the jury to totally disregard it and not consider it for any purpose whatsoever or any other reasonable request that you could make. Since the answer was elicited — Not directly, but it was a result of direct examination by a defense witness, to some extent, at least, it was invited. The witness probably should have been cautioned by counsel before testifying not to mention that fact. It of course came as a surprise to me. But at this time I’d be glad to instruct the jury or take whatever action necessary short of a mistrial. I would deny the motion for a mistrial.
Mr. Jamison: Your Honor, I do feel that regarding any more reference to that statement by her, I don’t think it should be brought to the jury’s attention. I do think that it would just invite more attention to that particular statement.
The Court: Okay.
The trial court also instructed the prosecutor to refrain from making any references to the fact that appellant was on parole.
The trial court is granted a wide latitude of discretion in granting or denying a mistrial, and its decision will not be reversed except for abuse of discretion or manifest prejudice. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979). Here, we cannot say the trial court abused its discretion in denying the motion for mistrial where the undesired response was elicited by appellant’s attorney.
We find no evidence that the jury’s verdict was based on either passion or prejudice, nor do we find the imposition of the death penalty in this case to be arbitrary, capricious, or wanton. In our comparative review of death sentences, we find the sentence not excessive.
In the sentencing phase of the trial the jury received as evidence of aggravating circumstances three prior felony convictions, one for second degree murder and two for shooting with intent to kill or wound. This evidence supported the jury’s finding that appellant had previously committed another felony, an element of which was the use or threat of violence to another person. At appellant’s insistence his sister was not allowed to testify regarding mitigating circumstances; the jury found none existed. The jury’s finding that the aggravating circumstances outweigh beyond a reasonable doubt any mitigating circumstances is supported by the evidence.
We have examined all objections pursuant to Rule 11 (f), Rules of the Supreme Court, Ark. Stat. Ann., Vol. 3A (Repl. 1977) and find no error. See Earl v. State, 272 Ark. 5, 611 S.W. 2d 98(1981).
Affirmed. | [
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Kikby, J.
Certain electors residing in appellant rural special school districts Nos. 17 and 95 in Tell County filed a petition in the circuit court for a certiorari requiring the appellees to bring up for review an order of the county board of education consolidating appellant school districts with the Ola Special School District, and creating the territory into the Ola Special School District No. 10 and abolishing appellant districts.
It was alleged that the order was made without the notice required by law and void, and should be quashed.
Appellees answered, and upon a hearing the court denied the relief and dismissed the petition. It appears that the order of the board of education sought to be quashed was made on the 20th day of April, 1929, upon a petition for the creation of the district and a remonstrance filed thereto by residents of both districts, and after a hearing by the board, which found that the petition for the district contained a majority of the qualified electors residing in the territory affected, and that it was for the best educational interests of all parties affected that the territory be reorganized into the district as prayed for, the petition was granted accordingly.
No appeal was attempted to be taken from the order. At the annual school election in May thereafter six directors were elected for the district, the election being* held in the town of Ola therein. The newly elected school board employed teachers and summer schools were held in the territory formerly embraced in the appellant districts and attended by the pupils living- therein. After the time for appeal had expired, the board purchased buses to transport the pupils to the schools in the new district in the town of Ola, and employed teachers for the school. No school election was held in the territory of the old districts nor tax voted, and some of the electors of each of said districts voted in the election held in the new and appellee district. On the 24th day of September, 1929, appellants filed a petition for a writ of cer tiorari in the circuit court, which ordered the records brought into court. Appellee filed an answer in due time, and upon a hearing the court denied and quashed the writ of certiorari, approved and confirmed the order of the board of education made on the 20th day of April, 1929, consolidating school districts 17 and 95 with and into the Ola Special School District No. 10, and from this order the appeal comes.
It'is insisted by appellants that the order and judgment of the board of education, sought to be quashed, was void, being made without giving the notice required by the statute, § 8821, C. & M. Digest. In Consolidated School District No. 2 v. Special School District No. 19, 179 Ark. 822, 18 S. W. (2d) 349, it was held that said statute requiring the notice given had not been repealed by the amendatory act 156 of 1927. No objection was made in the remonstrance filed against the petition for the creation of the district before the school board, and no appeal was attempted to be taken during the time allowed by law therefor from the order of said board creating the district, it being announced by the board at the time the order was made that the law allowed a certain time for an appeal therefrom. After this time had expired with no appeal taken, the board of directors of appellee district caused summer schools to be held in the-territory of the old districts, which were attended by the pupils residing therein, and no school elections were held in said districts. They then purchased buses for transporting- the children and pupils residing in said territory to the central school in Ola, employed all additional teachers necessary to teach the school with the increased number of pupils, the school election at the regular time being held only in appellee district at which some electors of the old districts voted.
The order of the board, sought to be quashed, was made on April 20, 1929, no appeal was taken therefrom, and this proceeding was begun on the 24th day of Sep tember, 1929, more than five months thereafter, without an excuse offered for the delay.
An effort to quash an order or judgment in a matter involving the public interest or of a public nature, such as the consolidation and creation of school districts, is not entertained as of right, but is a matter resting in the sound discretion of the court, which should not grant relief unless the'remedy is sought within apt time or without an unreasonable delay in applying therefor. Here appellants appeared and remonstrated against the making of the order without objecting that notice had not been given of the application therefor, made no effort to appeal from it, and sought no relief by this proceeding until more than five months after the order was made, the entire status changed, and the unusual expenses incurred necessary to the carrying- out of the order and conducting the schools in the territory as consolidated. No elections were held or school tax voted in. the old districts because of the consolidation, and some of the electors residing therein participated in the school election in the new district.
Confusion and injury would necessarily have resulted from the quashal of the order, to the deprivation of the privilege of attending public school to all the children residing in the territory of the old districts, since ho school could have been held therein because of a lack of funds resulting in a great public inconvenience. Certiorari is not a writ of right but one of discretion, and will not be granted except to do substantial justice, and we hold there was no abuse of discretion by the court in withholding the writ and denying the issuance thereof herein. See School District No. 12 v. School District No. 46, 137 Ark. 457, 208 S. W. 788 ; Black v. Brinkley, 54 Ark. 372, 15 S. W. 1030 ; Burgett v. Apperson, 52 Ark. 213, 12 S. W. 559 ; Johnson v. West, 89 Ark. 606, 117 S. W. 770 ; Butler v. Blackshare, 162 Ark. 69, 257 S. W. 379.
The judgment is accordingly affirmed. | [
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DuNaway, J.
This appeal presents for decision the proper construction of Act 327 of the Acts of 1941, as amended by Act 146 of the Acts of 1949 (Ark. Stats. (1947) § 80-201 et seq.), as it applies to Sebastian County. That Act relates to the powers and duties of the County Board of Education and the County School Supervisor and provides for the payment of expenses of the Board and salary of the Supervisor.
The question is whether Sebastian County is to be treated as a composite unit of government under the provisions of said Act, or whether the two districts of Sebastian County for the purposes of the Act are to be considered as two separate and distinct counties, in view of the unique provision concerning Sabastian County contained in the State Constitution and subsequent acts of the Legislature in regard thereto.
The constitutional provision involved reads as follows: (Art. 13, § 5) “Sebastian County may have two districts and two county seats, at which county, probate and circuit courts shall be held as may be provided by law, each district paying its own expenses.”
Pursuant to the constitutional authority thus granted, the General Assembly in 1875 enacted enabling legislation. See Acts 31 and 54 of the Acts of 1875 (January 12 and February 3, 1875, pp. 85 and 135). By virtue of these acts Sebastian County has been divided into two districts, the Fort Smith District and the Greenwood District, each with a county seat and each carrying out the functions of county government as if they were two separate and distinct counties. Sebastian County has, however, one County Judge, Sheriff and Collector, Clerk and Treasurer, which officers serve in their respective capacities in both districts.
Section 10 of Act 31 contains the provision that “the said districts shall respectively defray all expenses of holding courts, opening and repairing highways, building bridges, providing for paupers, erecting public buildings and all other county expenses accruing within and on account of their respective districts, as if separate and distinct counties;”. In § 5 of Act 54 it is provided that the Assessor shall make separate assessments of the property in each district, keeping separate records thereof; and that the Collector shall “in every particular proceed in the collection of the taxes for each of said districts as if said districts were separate counties,”
It is further provided in § 13 of Act 31 ‘ ‘ That as to all matters not within the provisions of this act, the county of Sebastian shall be one entire and undivided county. ’ ’
The instant case arose as a suit by appellant Roberts, claiming to be the County School Supervisor of all of Sebastian County and the other appellants, claiming to be the County Board of Education of the entire county, against appellee Been, Treasurer of Sebastian County, and others. Plaintiffs alleged that pursuant to Act 327 of 1941 as amended by Act 146 of 1949, Roberts had been employed as County School Supervisor for a term of two years at an annual salary of $4,480; that under the'provisions of said Act the Supervisor’s salary is payable from funds allotted for this purpose by the state and from funds set aside by the County Board from the County General Education Eund; that the state’s contribution amounted to $1,780 for the year 1949-50, and that a balance of $5,983 was required to meet the expenses of the County Board and the salary of the Supervisor; that on the basis of the school enumeration this expense amounted to $0.4442 per capita, which resulted in the apportionment of a cost of $4,250.10 to be borne by the Fort Smith District of Sebastian County and $1,732.90 to be borne by the Greenwood District, as determined by the number of school children in each district.
On September 30, 1949, a voucher executed as required by law was presented to the County Clerk who issued a warrant in the amount of $184.64 to the order of the Supervisor for his salary then due, drawn on the “special fund set aside from the unapportioned County General School Fund.” The Treasurer refused payment, on the ground that there was no such fund and that no part of the Supervisor’s salary was payable from funds in the Fort Smith District. Plaintiffs prayed a mandatory injunction directing the County Treasurer to set aside from the County General School Fund of the Fort Smith District of Sebastian County the sum of $4,250.10, to be placed with the appropriate amount from the Greenwood District, in the special fund ordered set apart by the Board to defray the office expenses and salary of tlie Supervisor.
The proof showed that in April, 1941, pursuant to the requirements of Act 327 of 1941, Sebastian County was divided into four zones for school purposes. Zone Three embraced the entire area of the Fort Smith District of the county, together with territory in the Greenwood District in which several small school districts were located. A special election was held in May, 1941, in each school district in the county for the election of members of the County Board of Education for Sebastian County. The County Judge certified the results of said election, at which one member of the Board from each of the four zones and one member at large were chosen.
The office of the County Board of Education was set up and has been maintained in the courthouse at Greenwood. No office has ever been maintained in the courthouse at Fort Smith. Until this suit was brought no effort was made to require the Fort Smith District of the county to share in meeting the expenses of the office or Supervisor’s salary.
The powers and duties of the County Board of Education are set out in Ark. Stats. (1947) § 80-213. They include apportioning all school funds in the county as provided by law and in conformity to regulations of the State Board of Education; formation and dissolution of local school districts and changing the boundaries thereof ; and causing “to be set aside from funds in the County General School Fund amounts necessary for the expenses of the Board and of the County School Supervisor’s office.” By Ark. Stats. (1947) § 80-229 it is further provided that the Board may determine the Supervisor’s salary and other expenses of his office. That section reads in part: “Except for the state’s contribution to the County Supervisor’s salary, all funds provided herein shall be set aside from the unapportioned County General School Fund to a special fund by the County Treasurer. ’ ’
In Ark. Stats. (1947) § 80-225 the powers and duties of the County Supervisor are enumerated. The pro visions of that section are too lengthy to set forth in detail. Generally, he is assigned the duty of supplying to all school districts in the county blanks furnished by the State Board of Education; keeping records concerning the zones into which the county is divided and the location of school houses, boundary lines of school districts and condition of roads therein. He makes all reports required by the State Department of Education concerning such matters as budgets, teacher qualifications and records, Teacher Retirement System and many other things. The Supervisor calls school elections (on September 27, 1949, an election on a bond issue in the Fort Smith School District was held, in connection with which he signed as Supervisor for the county numerous legal documents) and checks transportation reports, on the basis of which the various districts are reimbursed by the state.
Although, under the provisions of Act 327 of 1941 he does not directly supervise the operations of the Fort Smith School District, since it is a district having a superintendent, it is admitted by appellees that the Supervisor performs, among other things, the services above listed for the Fort Smith School District.
The Chancellor held that under the constitutional provision and statutory enactments regarding Sebastian County, as construed by this court, the county must be considered as two distinct units; and that the Fort Smith District cannot be compelled to pay any part of the. salary or expenses of the County Supervisor of Education, whose office and primary work are in the Greenwood District of the county. Consequently, the complaint was dismissed for want of equity, from which action comes this appeal.
It is conceded by appellees that there is no constitutional inhibition against treating Sebastian County as one composite unit for school purposes, if in fact the Legislature has done this. It therefore is unnecessary to discuss the constitutional power of the General Assembly to treat as one county for school purposes, a county which, for other purposes .has been considered, as if it were two separate and distinct counties.
The effect of the above quoted provision of the Constitution and the legislative acts on the subject have been considered by this court in three cases. See Williams v. State, 160 Ark. 587, 255 S. W. 314; Jewett v. Norris, 170 Ark. 71, 278 S. W. 652; and Scaramuzza v. McLeod, Commissioner of Revenues, 207 Ark. 855, 183 S. W. 2d 55.
The historical background of this unique constitutional provision was discussed at length in the Jewett case supra. There it was held that the two districts of Sebastian County are to be regarded as separate counties within the meaning of Amendment 11 to the Constitution authorizing counties to issue bonds to.pay outstanding indebtedness. In the Jewett case we said at p. 75: “It may be conceded that these districts are not counties within the ordinary meaning of that word; but we think, in view of the unique provision of the Constitution in regard to Sebastian County, that the two districts thereof are to be treated as if they were in fact separate counties, so far as their fiscal affairs are concerned.”
The holding in the Williams case supra, was discussed in the Jewett opinion in this language: (p. 76) “We think there is nothing in the case of Williams v. Stale, 160 Ark. 587, 255 S. W. 314, which conflicts with the views here expressed. The point there decided was that an accused person applying for a change of venue might show that the inhabitants of Sebastian County as a political unit were so prejudiced against him that he would be entitled to have the venue changed to another county of the judicial circuit of which Sebastian County was a part. In other words, Sebastian County as a composite unit of government has not been destroyed, although the separate districts thereof have been given separate control of their respective fiscal affairs.”
In the Scaramussa case supra, the question was whether Sebastian County was to be considered as one unit in a local option election held under authority of Initiated Act No. 1 of 1942, or whether the two districts were to be treated in effect as two different counties. In holding that they were to be treated as distinct units for this purpose we said at p. 861: “Now of course under this Act an election might be held in any township, municipality, ward or precinct of either district of Sebastian County, but we are also of the opinion that the Act authorized an election by the districts of Sebastian County, for the reason that the districts of that county are in effect separate counties, so far as the ‘local concerns’ of that county are involved.”
As to the effect of the Jewett case, we further said at p. 862 of the opinion in the Scaramuzm case: “In other words, the separate districts of Sebastian county were as distinct as would be two separate counties, in the exercise of the jurisdiction conferred by § 28 of art. 7 of the Constitution which gives county courts jurisdiction over the fiscal affairs of the respective counties, and also confers jurisdiction in matters of local concern. ’ ’
It is clear from this review of our holdings that in matters of local concern and fiscal affairs the two districts of Sebastian County have been treated as if they were separate counties. On the other hand, under the terms of the enabling act already quoted, as to all matters not within its provisions, the county of Sebastian is to be considered as one entire and undivided county. It is to be noted that nothing relating to schools was mentioned in said Act.
Article 14, § 4 of the Constitution, dealing with the subject of “Education,” provides: “The supervision of public schools and the execution of the laws regulating the same shall be vested in and confided to such officers as may be provided for by the General Assembly.” We recognize the legislative control thus given over matters of education in Little River County Board of Education v. Ashdown Special School District, 156 Ark. 549, 247 S. W. 70. In that case we held valid an act of the Legislature creating county boards of education and conferring on them powers formerly vested in county courts, as against a contention that the act violated Article 7, § 28 of the Constitution, giving county courts exclu sive original jurisdiction over the local concerns of their respective counties. In view of our holding in that case, we do not think the subject now under consideration is a “local concern” within the meaning of our earlier cases regarding Sebastian County.
An argument advanced by appellees against requiring the Fort Smith District of the county to help pay the Supervisor’s salary is that the Fort Smith School District, under the terms of Act 327 of 1941, is not under his direct control, since it has a superintendent. A like contention was made in the Ashdown case, supra. We decided in that case, however, that the Legislature had the right to provide for part of a county superintendent’s salary to be paid out of school funds which would otherwise go to the schools in cities having superintendents and which were, as here, expressly exempted from the supervision of county superintendents; county superintendents having general supervision in such cities by establishing uniform grades and by other ways tending to promote the public school system.
To support their contention that under Act 327 of 1941 the two districts of Sebastian County should be treated as two different counties, appellees cite this provision of the Act: (Ark. Stats. 1947, § 80-225) : “The County Court shall supply the County School Supervisor with a suitably equipped office at the County Seat.” They argue that in Sebastian County there is no “County Court” of the entire county, but entirely distinct courts in each district; that there is not one “County Seat” for the whole County, but two. Even though the districts of Sebastian County may be treated as wholly separate counties under the Constitution, it is not mandatory that they be. For the purposes of the Act under consideration, the more sensible and practical construction would be to treat Sebastian County the same as the eleven other counties in Arkansas which have two districts for judicial purposes and have two courthouses. The single County Judge of Sebastian County then may provide the necessary office facilities at whichever “county seat” is most practicable. The construction urged by appellees would necessitate the creation of two Boards of Education and tlie appointment of two County Supervisors, when admittedly only one is needed.
If Sebastian County is not one composite unit for school purposes, it is difficult to conceive of any purpose for which it would be so treated. To adopt appellees’ theory of the case would render meaningless the section of Act 31 of 1875 providing that as to all matters not covered by said act, Sebastian County “shall be one entire and undivided county. ’ ’
One other contention earnestly made by able counsel for appellees is based upon the statute defining the County General School Fund. Ark. Stats. (1947), § 80-721, reads as follows: “The general school fund of any county shall be composed of all money received from the Common School Fund (Public School Fund) of the State, the per capita tax on the inhabitants of the county, such fines, penalties and other money as shall be accrued to such funds in accordance with the law, and any appropriation from the general revenue of the county for common school purposes.” It is argued that since this fund may include appropriations from the general revenue of the county, the effect of holding Sebastian County to be one unit under Act 327 of 1941, might be to require the use of county general revenues of one district for use in the other; and that such use of said funds was foreclosed by our opinion in Jewett v. Norris, supra. Since the record shows that for many years there has not in fact been any such appropriation to the General School Fund, we do not deem it necessary to construe the statute on this point.
In holding that Sebastian County is one unit for the purposes of Act 327 of 1941 as amended, and that there is a Sebastian County General School Fund from which there should be set aside the special fund for payment of the expenses and salary of the County School Supervisor as directed by the County Board of Education, we do not hold that the County Treasurer may not continue to keep the General School Fund separated as to the two districts of the county as has been his practice. We do hold that from tlie school funds arising in Sebastian County as a whole, the Fort Smith District must pay its share of the expenses and salary of the County Supervisor as determined by the County Board of Education.
The decree is reversed and the cause remanded for proceedings in accordance with this opinion.
The Chief Justice dissents. | [
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George Rose Smith, Justice.
In the Little Rock Municipal Court the appellant was found guilty of driving a motor vehicle while under the influence of drugs. Ark. Stat. Ann. § 75-1026.1 (Supp. 1971). This appeal is from the circuit court’s affirmance of the municipal court judgment.
The appellant is correct in his contention that there is no proof that he was under the influence of drugs at the time of his arrest. He was suffering from hypoglycemia, an affliction that may cause dizziness or unconsciousness. A state policeman arrested Williams upon finding him unconscious in a sitting position at the wheel of a car which was standing on a public highway with its motor running. According to the officer, there was a strong odor of alcohol upon Williams’ breath. Williams’ intractable conduct upon his return to consciousness, together with the presence of certain pills upon the dashboard of the car, led the officer to charge Williams with driving under the influence of drugs. However, the undisputed testimony, including that of Williams’ doctor, shows that the pills were prescribed tranquilizers which could not have caused the condition in which Williams was found. Williams himself admitted that he had drunk beer before his arrest, but his testimony that he had not taken either the tranquilizers or any other drug is uncontradicted. Thus there is no proof to sustain an essential element of the charge.
Reversed and dismissed. | [
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Darrell Hickman, Justice.
The determinative question to be answered in this case is whether the General Assembly created one or two separate judicial circuits to serve the area of Garland, Polk and Montgomery Counties. The legislation says that one circuit is called the Eighteenth Circuit-East and consists only of Garland County; the other, named Eighteenth Circuit-West, encompasses Polk and Montgomery Counties. While designating these two “circuits,” the General Assembly only made an appropriation for one prosecuting attorney. The Pulaski County Circuit Court held two circuits were created and the constitution requires a separate office of prosecuting attorney for each circuit. The decision was correct.
The suit was tried on a stipulation of facts. Robert “Bob” Ridgeway, a resident of Garland County, Arkansas, was the 1982 Democratic nominee for prosecuting attorney in all three counties. Before 1977, Garland County had been a separate circuit unto itself. Polk and Montgomery Coun ties had been in the Ninth Circuit. Act 432 of 1977 (Ark. Stat. Ann. § 22-365 [Supp. 1981]) designated anew the various judicial circuits in the entire state. The relevant portion of Act 432 reads:
Eighteenth Circuit-East. The Eighteenth Circuit-East shall be composed of the county of Garland. The qualified electors of the Eighteenth Circuit-East shall elect one (1) circuit Judge and one (1) chancellor to serve the Eighteenth Circuit-East, each of whom shall be a resident of the Eighteenth Circuit-East.
Eighteenth Circuit-West. The Eighteenth Circuit-West shall be composed of the counties of Montgomery and Polk. The qualified electors of the Eighteenth Circuit-West shall elect one (1) circuit-chancery judge to serve the Eighteenth Circuit-West who shall be a resident of the Eighteenth Circuit-West.
The judges of the Eighteenth Circuit-East and the Eighteenth Circuit-West may by agreement temporarily exchange circuits or hold court for each other, as they deem necessary or appropriate.
While there is no mention of the office of prosecuting attorney for either or both circuits, the General Assembly did make an appropriation for one prosecuting attorney in a separate act. Ark. Stat. Ann. § 24-111 (Supp. 1981).
The Arkansas Constitution plainly requires that each judicial circuit be served by a prosecuting attorney. ARK. CONST, art. 7, § 24 reads:
The qualified electors of each circuit shall elect a prosecuting attorney, who shall hold his office for the term of two years, and he shall be a citizen of the United States, learned in the law, and a resident of the circuit for which he may be elected.
Therefore, the critical question the trial court had to decide was whether the legislation created separate judicial circuits. All others questions are necessarily answered. ARK. CONST, art. 7, § 13 reads:
The State shall be divided into convenient circuits, each circuit to be made of contiguous counties, for each of which circuits a judge shall be elected, who, during his continuance in office, shall reside in and be a conservator of the peace within the circuit for which he shall have been elected.
Act 432 provides in unmistakable language that Eighteenth Circuit-East “shall be composed of Garland County,” and that Eighteenth Circuit-West “shall be composed of the counties of Montgomery and Polk.” It could not be made more plain that one “circuit” serves Garland County, another circuit Montgomery and Polk Counties.
However, it is argued that the entire area was intended to be only one circuit. That argument is advanced for three reasons: The Act contains language that provides for exchange of circuits by agreement; the fact that an appropriation was made for only one prosecuting attorney, and the way the General Assembly treated a similar situation in the Ninth Circuit. None of those arguments can outweigh the clear language we have quoted. The statute must be given its plain meaning. Hicks v. Arkansas State Medical Board, 260 Ark. 31, 537 S.W.2d 794 (1976). In the Ninth Circuit there was also created an “East” and “West” Circuit, and language specifically provided that both East and West would be served by one prosecuting attorney. This language was changed by Act 834 of 1979 to provide for one prosecuting attorney for Nine-West and for Nine-East. The fact a similar change was not made regarding Eighteen East and West is cited as evidence the General Assembly intended to create only one circuit named the Eighteenth Judicial Circuit. We do not have before us any question about the Ninth Circuit and the mere fact the legislation is silent about a prosecuting attorney for the two Eighteenth Circuits is irrelevant. Two circuits were created and ARK. CONST, art. 7 § 24 requires each circuit have an office of prosecuting attorney. This provision is self-executing. Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W.2d 85 (1968).
Consequently, the other questions raised are easily answered. Joe H. Hardegree was duly qualified as a write-in candidate for prosecuting attorney in Polk and Montgomery Counties, and received the most votes of any write-in candidate. Although Robert “Bob” Ridgeway from Garland County received far more votes in those counties as the Democratic nominee, he was not eligible to run or serve in those two counties, which are a separate judicial circuit from the one in which Ridgeway resides. Therefore, the trial court was correct in declaring that the Secretary of State must certify Joe H. Hardegree as prosecuting attorney for the Eighteenth Circuit-West.
Affirmed. | [
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Butler, J.
The sole question in this case is the right of the intervener, John Campbell, to recover from the appellant, United Order of Good Samaritans, an undertaker’s bill. Carrie Oarrigan ivas a member o'f' the United Order of Good Samaritans, but at the time of her death, which occurred on July 25, 19|2'5, her certificate of membership and her rights thereunder were in abeyance because of failure to pay her monthly assessments when due. About the 10th of July, 1925, she had paid her arrears 'but under the terms of the policy it did not become reinstated until thirty days thereafter, and she, having died within that time, was what was termed by the officials of the order ‘ ‘ unfinancial. ” In a suit ¡by the beneficiary named in the certificate against the appellant company the court properly directed a verdict for the appellant from which no appeal was taken. In that suit Campbell, who was a negro undertaker, intervened for a bill of $93 which he stated was ¡for furnishing a casket and embalming the body. He stated that this was done at the instance of the officers of the local lodge who assured him that the order would pay for these services; that he was familiar with the way these matters were usually handled by the order as. he had at one time been the chief officer in the local lodge; that he had joined every negro society in the south; that he had helped to bury many members of tbe United Order of Good Samaritans, dealing, with other people occupying the same positions as the local officers in this case, and that the order had never refused to pay him; that he had never had the order to pay him on funeral claims where liability was denied on the policy, and that in all cases where he had been paid for funeral expenses the order admitted the insurance to be in force; that the local officers in this case told him that the deceased sister was “ financial.’r
Further evidence was to the effect that the secretary of the local lodge and one McCrary, who was known as the colonial chancellor and the presiding officer of the local lodge, had no authority to obligate the order for funeral expenses, the duty of the colonial chancellor being to preside over the local lodge and that of the secretary to collect the monthly dues and remit to the home office at Little Rock.
•Since Campbell had been a colonial chancellor, he of course knew the authority of these officers, and when they made the arrangements, in so far as the order was concerned, they were acting without the scope of such authority, actual or apparent. Therefore, the order was not bound by any promise they might have made. Such is the well-settled rule of this court. Wales-Riggs Plantations v. Grooms, 132 Ark. 155, 200 S. W. 804 ; Pierce v. Fioretti, 140 Ark. 306, 215 S. W. 646 ; Ozark Mutual Life Assn. v. Dillard, 169 Ark. 136, 273 S. W. 378.
The certificate and by-laws of the order were introduced in evidence, among the provisions of which was the following: ‘‘Upon receipt of proper advices affirming the death of the member and if this certificate is in force, the order will pay to such persons designated by the beneficiaries $50, which sum when paid shall be charged against the accumulated value of this certificate, but this preliminary payment made on account of burial expenses shall not be as an acknowledgment of any liability under this certificate, should any fraud or noncompliance with the terms and conditions of this certi ficate and constitution and laws of the order be discovered.” This provision was an essential paid of the contract, and, as the certificate was not in force at the time of the death of 'Carrie 'C'arrigan, there was no burial benefit in force. Since this was the case, and there being no evidence to' the effect that the local officers were clothed with any express authority, and their positions being such that no authority might be implied, the court erred in directing a verdict for the intervener. A verdict should have been directed for the United Order of Good Samaritans on ¡both branches of the case.
The judgment of the trial court is therefore reversed, and the case is dismissed. | [
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Ed. F. McFaddin, Justice.
The question presented is the landowner’s right to recover damages for his crops destroyed by the construction of a highway; and the answer to the question depends on whether the landowner’s damages are to be fixed as of the date of (a) the making of the County Court order (under § 76-917, Ark. Stats.), or (b) the taking of the lands by actual entry.
On October 27,1947, the County Court of Lee County, on petition of the State Highway Commission and without notice to the landowner, made an order (under said § 76-917, Ark. Stats.) designating the location of a State highway across appellee’s lands. On August 13, 1948, tlio Highway Commission filed a bond to assure the landowner of the payment of his damages, and immediately thereafter the lands were actually entered and the construction of the highway commenced. The landowner (appellee, Holden) had planted and cultivated a cotton crop on the land in 1948, just as in previous years; and this 1948 crop was destroyed by the construction of the highway. The Circuit Court allowed the jury to award damages for the destruction of the cotton crop; and that is the only item challenged by appellants (State Highway Commission and Lee County) on this appeal. For convenience, we will refer to the appellants as “Highway Commission” and the appellee as “Holden”.
The Highway Commission claims that the damages are to be determined as of the date of the County Court order (i. e. October 27, 1947) and cites, inter alia, Newgass v. Railway Co., 54 Ark. 140, 15 S. W. 188; Kansas City So. Ry. Co. v. Boles, 88 Ark. 533, 115 S. W. 375; School District of Ogden v. Smith, 113 Ark. 530, 168 S. W. 1089; and Keith v. Drainage District, 183 Ark. 384, 36 S. W. 2d 59.
Holden claims that the damages are to be determined as of the actual entry on his land, that is, August 13, 1948; and cites, inter alia, Greene County v. Hayden, 175 Ark. 1067, 1 S. W. 2d 803; Arkansas State Highway Comm. v. Partain, 192 Ark. 127, 90 S. W. 2d 968; and Miller County v. Beasley, 203 Ark. 370, 156 S. W. 2d 791.
After a careful study, we reach the conclusion that the appellee is correct, and that the judgment should be affirmed under the authority of the cases cited by the appellee, as above listed. It is true that in Newgass v. Railway Company, supra, we said:
“. . . As the filing of the petition is the attempt to assert the right of condemnation, and subsequent delay is without fault of either party, it seems fair to each alike that the assessment should be made with reference to value as of that date.”
And it is also true that in Mo. & No. Ark. Railroad Co. v. Chapman, 150 Ark. 334, 234 S. W. 171, we said:
“It follows that the court did not err in holding that the value of the property should be proved as of the time of the filing of the suit, instead of the date the property was actually appropriated by the railroad company. ’ ’
But in the two quoted cases, as well as in the other cases relied on by the appellants, the Statute, being considered in each case, authorized proceedings for condemnation in an adversary suit with notice given the landowner at the institution of the proceedings: whereas, in the case at bar, the County Court of Lee County, in making its order of October 27, 1947, was acting under § 76-917 of Ark. Stats., which section entirely omits any requirement as to notice to the landowner prior to the making of the order opening the road. Such absence of notice has been discussed in some of our cases, of which Sloan v. Lawrence Co., 134 Ark. 121, 203 S. W. 260, and Greene County v. Hayden, 175 Ark. 1067, 1 S. W. 2d 803, are two.
In Greene County v. Hayden, supra, we held that the language in § 76-917 Ark. Stats. — “twelve months from the date of the order laying out or changing any road”— meant twelve months from the actual entry on the land, because to hold otherwise would have allowed an order of taking without notice and a subsequent taking without compensation. We said:
“Here the undisputed evidence shows that the order of condemnation was entered in June, 1924, and that the county remained quiescent until January, 1926, at which time the route of the road as described in the order of condemnation was surveyed, but more than a year had then expired since the making and entry of the order of condemnation.
“The law does not permit a proceeding of this character to deprive the property owner of his day in court. If it did, the property owner would be deprived of his right to be heard upon the question of compensation, and there is no question, under the Sloan case, supra, about the existence of*this right. No legislation can deprive the landowner of this right. Yet, in practical effect, these landowners have been deprived of that right. Their causes of action were barred under the contention of the county before they were advised that it had accrued.
“It follows therefore that the causes of action were not barred, as the statute did not begin to run against the landowners until they had notice of the order of condemnation by the taking of their land by the' entry thereon by the surveyor, and the claims were all properly filed within a year of that time.”
With these holdings established, there came Miller County v. Beasley, 203 Ark. 370, 156 S. W. 2d 791, in which was presented the question, whether the claim for taking of lands under § 76-917 Ark. Stats, was to be paid out of the funds for (a) the year in which the order was made, or (b) the year in which the lands were actually taken; and we said:
“It is our view that the act of taking is not complete when the judgment of condemnation is rendered. Since such judgment may be without notice, the lawmaking body must have had in mind an order of condemnation followed by entry upon the land. Such entry, being-physical and visible, affords the proprietor an opportunity to exact payment or to require a guaranteeing deposit. ’ ’
Since the “act of taking is not complete when the judgment of condemnation is rendered,” it necessarily follows that the landowner is entitled to damages as of the date when the act of taking is complete — that is, when his lands are actually entered and taken under the order. After the judgment is rendered by the County Court, under § 76-917, the landowner may require security, such as bond, by Chancery Court proceedings before liis lands be entered. Failure of tlie condemnor to make such security would prevent the entry, so that “the lands might never be taken. Certainly, therefore, the date of actual entry fixes the date for the determining of the damages under § 76-917 Ark. Stats. The fact that the Highway Commission had put Stakes through Holden’s land before he planted the crop is not determinative. There were sev-. eral sets of stakes; and the highway was not constructed along one line of stakes, but went according to another line. Merely because the Highway Department has driven a stake in a field is not an act sufficient to constitute a taking of the land or to require the owner to cease using his land for its normal and natural purposes.
CONCLUSION
We hold that in a proceeding under § 76-917 Ark. Stats, the damages of the landowner for the normal and natural use of his land are to be calculated as of the date of actual entry, rather than as of the date of the County Court order.
Affirmed.
Leelar, J., concurs.
Holt and George Rose Smith, JJ., dissent.
See § 76-510, Ark. Stats. 1947.
Various other proceedings occurred: Holden unsuccessfully attempted to remove the case to Federal court (see Lee County v. Holden, 82 Fed. Supp. 353). Holden also filed petition in the Pulaski Chancery Court to require the Highway Commission to post a bond prior to actual entry, which bond was made on August 13, 1948. Holden had filed claim against Lee County in the County Court; and after Federal court remand his claim was disallowed by the County Court and he appealed to the Circuit Court. There he recovered the judgment from which the Highway Commission and Lee County prosecute the present appeal to this Court. Dates as to bond and actual entry are found in the Federal case mentioned.
Sec. 76-917 is from Act 611 of 1923, which was prior to the Amendment No. 14 to the Constitution prohibiting local legislation. Lee County is one of the Counties to which the said Act 611 of 1923 is applicable.
There were other cases, such as Arkansas State Highway Comm. v. Partain, 192 Ark. 127, 90 S. W. 2d 968, and Arkansas State Highway Comm. v. Partain, 198 Ark. 803, 103 S. W. 2d 53; but Miller County v. Beasley, supra, is the case most nearly in point.
See Independence Co. v. Lester, 173 Ark. 796, 293 S. W. 743, and Arkansas Highway Comm. v. Hammock, 201 Ark. 927, 148 S. W. 2d 324.
See 18 Am. Jur. 896, and see, also, Lafferty v. Schuylkill River Railroad Co., 124 Pa. 297, 16 At. 689. | [
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Carleton Harris, Chief Justice.
Jim Tucker, a licensed real estate broker in Arkansas, instituted suit in the Benton County Circuit Court against C. S. Gainer, jr. and Edna Gainer to enforce a $30,260 commission for the sale of 712 acres in Benton County. On April 11, 1967, an offer and acceptance contract was entered into between the buyer (Charles Seaney) obtained by Tucker, and C. S. Gainer, Jr. and Edna J. Gainer, appellants herein. The total purchase price for the property was $302,600, and the Gainers agree in the same offer and acceptance to pay Tucker $30,260 as his commission in obtaining the offer. The agreement provided that Seaney was to pay $35,000 in cash and the balance of $267,600 as follows: “$26,760 annually including 6% interest, first payment to be made twelve months from closing date of this agreement. Buyer reserves the right to pay more or all at any time and without penalty.” This offer and acceptance was made an exhibit to the complaint filed by Tucker. In the suit, it was admitted that $10,000 of the commission had been paid, leaving a balance due of $25,260. Also attached to the complaint was plaintiff’s Exhibit B, a letter dated June 9, 1967 as follows:
“Mr. Jim Tucker
205 West Walnut
Rogers, Arkansas 72756
Dear Mr. Tucker:
This letter will serve to acknowledge and set forth our agreement concerning the payment of a real estate commission due you for the sale of land owned by me to Mr. Charles Seaney.
The total commission is $30,260.00, of which you have received $10,000.00, leaving a balance due of $20,260.00 which is to be paid to you in three installments of $6,753.33 each, the first installment being due June 15, 1968, and a like installment due June 15, 1969 with the final installment of $6,753.34 being due on June 15, 1970.
Yours truly,
/s/ C. S. Gainer, Jr.
C. S. Gainer, Jr.
ACCEPTED:
/s/ Jim Tucker
Jim Tucker”
Appellants answered, asserting that except for certain fraudulent representations made by Tucker, the contract would never have been entered into by and between the parties. It was alleged inter alia that Tucker agreed to accept his commission, percentagewise, of the monies paid to the Gainers by Seaney as those payments were made to them; further, that if the Gainers would accept the small down payment offered by Seaney, Tucker would only require the Gainers to pay to him a 6% commission due on the down payment; still further, that if the transaction was not completed, i.e., Seaney did not pay the total pur chase price set out previously, appellants would only owe to Tucker 6% of the monies paid to them on the purchase price. It was further alleged that Tucker received well in excess of the 6% monies due and owing him as a commission for the transaction. Appellants next asserted that Tucker guaranteed that Seaney was in substantially good financial condition, and that if payments were not made, he (Tucker) would guarantee such payments; that based upon the conditions mentioned, appellants entered into the contract. It was then asserted that Seaney became delinquent, failed and refused to make payments as they became due and that finally the property was reconveyed back to appellants by the purchaser Seaney. The prayer was that the complaint be dismissed. Subsequently, appellants filed a counter-claim, alleging an oral agreement which substantially followed the allegations set out in the answer, and asserted that Tucker had been paid $10,-000, though only due $5,980, and they sought a judgment against him for $6,020.00. Thereafter, interrogatories were propounded by the Gainers to Tucker, but the answers are not particularly pertinent to the question posed before us in this litigation. On February 18, 1972, Mr. Tucker passed away and the cause was revived in the name of his wife, Lorena K. Tucker, as Administratrix of his Estate. Subsequently, the Gainers filed a petition with the court, stating that Mr. Gainer wás in very bad health making it impossible for him to attend the trial of the case which had been set for December 27, 1972; that Gainer “has virtually all the knowledge in this cause of the defendants’ defenses” and it was requested that the cause be continued. The court then entered an order continuing the trial until February 16, 1973, and the order further provided:
“The defendants are to file in this cause within ten (10) days from this date an Affidavit for Continuance, and in the event the plaintiff admits that the defendants would testify to the facts in said Affidavit for Continuance by the defendants, the said cause shall be tried upon the facts presented by the plaintiff, the Affidavit of the defendants, and other testimony of the defendants on said 16th day of February, 1973.
“In the event the defendants desire to take the depositions of the defendant, C. S. Gainer, Jr., he shall give notice of the time of taking said depositions to the attorney for the plaintiff of the time and place of said depositions to be taken within five (5) days after the filing of the Affidavit for Continuance heretofore mentioned.”
Subsequently, the affidavit of Mr. Gainer was filed, pertinent portions of which read as follows:
“On the evening of April 11, 1967, Jim Tucker presented to me a form offer and acceptance dated April 11, 1967, signed by Charles Segney, which provided that Mr. Seaney would purchase certain lands of mine located in Benton County, Arkansas, for the total sum of $302,600.00, with $35,000.00 down and the balance in installment payments. This is the same offer and acceptance a copy of which is attached to the Complaint in this case with the exception that there were no provisions thereon for realtor’s fees. I assumed that there would be a reasonable realtor’s fee but terms and provisions would be for future discussion. Jim Tucker presented this agreement to Mrs. Edna J. Gainer, my wife, and me for signature. We refused at first to sign because of the small down payment provided, but then did sign upon the insistence or Jim Tucker and his repeated representations that Charles Seaney was financially capable, had financial connections with banks, otherwise was well able to complete purchase and development, and that Jim Tucker himself would secure background statements on Charles Seaney which would show this.”
As to the June 9 letter signed by Gainer, appellant stated:
“Mr. Tucker then prevailed upon my good nature further, and took me to the law office of Clayton Little in Bentonville, Arkansas, to sign an agreement. The letter agreement dated June 9, 1967, attached to plaintiff’s complaint was signed by us. It was signed by me only after Jim Tucker stated that he agreed to accept $10,000.00 and 10% total sums received on the purchase price thereafter, but I might or did need such a document for credit purposes. He knew at the time that he neither agreed to nor would pay the sums therein stated at the times therein stated with the exception of the initial $10,000.00, but mis led me into signing such document on the basis of our oral agreement that I would pay 10% of sums received.’'
Thereafter, Requests for Admissions were submitted by appellee to Mr. Gainer, in which Gainer admitted that the letter written on June 9 was signed by him. He was also asked to admit that the balance had not been paid, to which he replied, “Admitted in form but denied as a proper balance.” Thereafter, appellee moved for a summary judgment, supporting the motion by the two exhibits heretofore mentioned and the answers to the Requests for Admissions. Gainer resubmitted his affidavit in support of his opposition to the motion and after submission of briefs, tíre court granted the summary judgment holding that there was no genuine issue as to any material fact, and specifically finding:
“7. That the purchasers and sellers entered into an Offer and Acceptance dated April 11, 1967 in which the defendants herein agreed to pay the plaintiff the sum of $30,260.00 real estate commission.
“8. That $10,000.00 of the commission was paid leaving a balance due of $20,260.00.
“9. That subsequent to the Offer and Acceptance signed on April 11, 1967, the defendant, C. S. Gainer, Jr. and the plaintiff entered into an agreement dated June 9, 1967, which acknowledged that the total commission due in the sale was $30,260.00 and provided that the balance due 'of $20,260.00 was to be paid in three installments of $6,753.53 each, the first installment being due on June 15, 1968 and a like installment being due June 15, 1969 with a final installment of $6,753.34 being due June 15, 1970. That this letter agreement was admitted as being signed by the defendant, C. S. Gainer, Jr. in his Answer to Request for Admissions filed in this cause. That the defendant further admitted that the balance of $20,260.00 had not been paid. ***
“12. That the court specifically finds that even assuming the facts as testified to in the affidavit to be true for the purpose of this hearing, that the testimony would be inadmissible at the trial of this cause. That in view of the ruling in the case of Bonds v. Littrell, 247 Ark. 577, 446 S.W. 2d 672 (1969), the court finds that the testimony would not be prohibited by the Parole Evidence Rule. However, it is the court’s ruling that the testimony contained in the affidavit filed in this cause would be testimony by a party against an administratrix and would therefore be prohibited by the ‘Dead Man’s Statute’, Arkansas Constitution, Schedule, Paragraph 2.”
Summary judgment was accordingly entered for appellee, and from such judgment, appellants bring this appeal. For reversal, it is asserted that material issues of fact existed and appellee was not entitled to judgment as a matter of law.
Of course, summary judgment is only proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Wilson, et al v. McDaniel, et al, 247 Ark. 1036, 449 S.W. 2d 944. The finding of the court that Gainer admitted the balance of $20,260 had not been paid is attacked by appellants as incorrect, it being pointed out that the answer actually given by Gainer was “Admitted in form but denied as to proper balance.” We find no merit in this argument for, like the trial court, we take this simply to have reference to the same contention made by Gainer in his affidavit, viz., that though he had signed the instrument reflecting that amount of indebtedness, the oral agreement between the parties prevented the amount from being correct.
The principal argument advanced by appellants is that the court erred in holding that the matters set out by Gainer in his affidavit as a defense would be prohibited by the “Dead Man’s Statute”, it being asserted that, in using the answers to the requests for admissions, appellee has waived the right to assert the contention of incompetency under the constitutional provision. In other words, having used to his own advantage certain statements made by Gainer, he cannot refuse the right to Gainer to use other portions. Cases are offered in support of this contention, but we need not discuss it under our view in this litigation.
The trial court held that parol evidence was admissible to show that the agreement was other than set out in the instrument — and this is normally true where fraud is alleged. In Hamburg Bank v. Jones, 202 Ark. 622, 151 S.W. 2d 990, we said:
“As to the alleged violation of the parole evidence rule, appellee testified very positively that appellant’s president called upon him at his office in Little Rock and secured his signature thereto by telling him that the bank would not look to him for payment, but to the collateral, consisting of preferred stock in the Jones Motor Company of Hamburg, and by writing him a letter to this effect, which letter was misplaced and not introduced. These were fraudulent misrepresentations, if made, and the jury by its verdict evidently believed they were. Were they admissible? We have many times held them to be competent where the issue of fraud in the procurement of the instrument is relied on. In St. L., I.M. & S. Ry. Co. v. Hambright, 87 Ark. 614, 113 S.W. 803, it was said: ‘The rule of evidence forbidding the addition, alteration or contradiction of a written instrument by parol testimony of antecedent and contemporaneous negotiations does not apply where there is an issue of fraud in the procurement of the writing.’ ”
See also Commercial Credit Company v. Childs, 199 Ark. 1073, 137 S.W. 2d 260. Numerous other decisions hold likewise. However, Gainer is not in a position to assert fraud, for under his own statement, he was a participant. In the early case of Evans v. Dravo, 24 Pa. 62, the Supreme Court of Pennsylvania held that a person cannot recover where it is necessary that he establish fraud to recover and such fraud includes partly his own actions. In the case cited, Evans desired to sell property to Gilpin for $500.00 though Evans valued the lot at $2,500. However, Evans wanted to sell to Gilpin because the lot would be used as a site for a rolling-mill which Evans felt would increase the value of adjoining property which he owned. The wife of Evans was not willing to sell for that price and Evans entered into an agreement whereby Dravo and three other persons executed a note to pay Evans $2,000. This was done purely as a matter of Evans having something to show his wife to leave the impression that he was going to receive a total of $2,500, for which amount she was willing to sell. Subsequently, Evans sued the four note-makers and their defense was that they were never supposed to pay the note, and, in their answer, alleged the fraud, but the court would not consider this evidence since they were parties to the fraud. Evans was allowed to recover, though he had acted fraudulently, because his recovery was not dependent upon his fraud, but rather established by the executed note that he held from defendants. The court, in explaining its logic, pointed out that one cannot be permitted to take advantage of his own wrong and that Dravo and the other note-signers were participating in a fraud on the wife. The court then said:
“But it is insisted that the plaintiff was in pari delicto, and that the maxims apply to him and his action as well as to the defendant. That he was party to the fraud practised on his wife is not to be doubted, since the verdict has established it; but if he needs no assistance from the fraud to make out his case, if he have a perfect cause of action without it, it is apprehended these maxims do not apply to him. *#* ‘If the plaintiff cannot open his case without showing that he has broken the law, the Court will not assist him, whatever his claim in justice may be upon the defendant.’ But we have seen that this plaintiff could not only open but prove his case without showing any infraction of law.”
Evans thus recovered, unaffected by the fraud, though he was a party to it — unaffected, because the suit was brought on the instrument.
The reasoning of the cited case is in accord with the Restatement of Restitution, § 140 (1937), p. 562, where it is stated that “a person may be prevented from obtaining restitution for a benefit because of his criminal or other wrongful conduct in connection with the transaction on which his claim is based.” It is pointed out in the comment that if equity would refuse to grant relief because of such conduct, a law court in which an action for restitution is brought, would also refuse to grant relief, since the action is equitable in nature.
Here, Gainer says that the letter he signed acknow ledging that the total commission to Tucker was $30,260, that $10,000 had been paid, and that $20,260 was still to be paid, was not the actual agreement at all, but was only given because Tucker needed “such a document for credit purposes.” In other words, the letter, or more properly a note, was only for the purpose of enabling Tucker to enhance his credit, or perhaps borrow money from some lending institution that would thus be permitted to rely on an instrument, executed by Gainer, which was untrue and meant absolutely nothing. In our own case of Marshall v. Marshall, 227 Ark. 582, 300 S.W. 2d 933, Hubert Marshall contended that a deed, as to him, was actually a mortgage, but as to his creditors, was a valid deed. In determining that the instrument was a valid deed, this court said:
“In effect, he says that the instrument was a valid deed in so far as it affected his wife and creditors but as to him it was only a mortgage. Obviously, he was agreeable to perpetrating a fraud on both his wife and outside creditors. The instrument could not be part deed and part mortgage, it was either one or the other.
“Having concluded, as indicated, that the instrument in question was, in fact, in the circumstances a valid deed and not a mortgage, and that the ‘clean hands doctrine’ precludes appellee from claiming otherwise, the decree is reversed and the cause remanded for further proceedings consistent with this opinion.”
Likewise, in Anthony v. First National Bank, 244 Ark. 1015, 431 S.W. 2d 267, Anthony contended that a certain note which he had executed, but on which he asserted protection from liability by secret agreement, constituted a fraud. This court, rejecting the argument, said:
“Appellants also argue that replacing the overdraft of Garland Anthony Lumber Company with Garland Anthony’s note on which he was protected from liability by a secret agreement constituted a fraud, bringing into play the ‘clean hands’ maxim in his favor. If this constituted a fraud, appellants were not the ones defrauded, and Garland Anthony was a party to the fraud. It is also well settled that one guilty of traud in a transaction may not invoke the maxim as that would violate the clean hands principle. Sliman v. Moore, 198 Ark. 734, 131 S.W. 2d 1. Even if deception of bank examiners had been the only purpose of the note in question, this was as well known to Anthony as it was to Blewster, and tíie ‘clean hands’ defense would not be available to him.”
We have endeavored, from what has been said, to point out that Gainer’s defense to the execution of the note is not a valid one because to establish this defense, he must at the same time establish that he committed a wrongful and inequitable act. The fraud issue was raised by Gainer — not Tucker. The latter’s cause of action is not dependent upon a secret agreement that could cause injury to innocent persons. His cause is dependent simply upon the written instrument. Accordingly, conceding, without deciding, that the use of the answers to the requests for admissions by appellee waived the “Dead Man’s Statute” and Gainer’s affidavit should accordingly have been considered, this appellant still cannot prevail because of the reasons heretofore set out.
Finally, it is argued that no summary judgment should have been granted against Mrs. Gainer, and we agree with this contention. The affidavit of Mr. Gainer was signed only by him; likewise, Mrs. Gainer did not sign the letter (or note) of June 9, 1967 admitting the indebtedness to Tucker. In addition, the Requests for Admissions were only directed to Mr. Gainer, and Mrs. Gainer admitted nothing. Appellee devotes very little time to this point in his brief, stating only that Mrs. Gainer had executed the original Offer and Acceptance of April 11, 1967 and further:
“While it is admitted that Edna J. Gainer did not sign the letter agreement of June 9, 1967, it is apparent from his affidavit that Mr. Gainer handled all of the dealings for his wife in this transaction and acted accordingly as her agent throughout the entire transaction.”
Of course, Mrs. Gainer is not bound by the affidavit of Mr. Gainer, and there is nothing in the record from Mrs. Gainer to establish that her husband acted as her agent; as stated, there is no admission by appellant Edna Gainer that she executed any paper or document. The proof, as to her, was insufficient upon which to grant a summary judgment.
In accordance with what has been said, the judgment is affirmed as to Mr. Gainer, reversed as to Mrs. Gainer, and remanded to the Benton County Circuit Court with directions to proceed in a manner not inconsistent with this opinion.
This obviously is a typographical error in the record and properly should be “he”. All parties, in the abstract and brief, treat the word as "he”.
According to Gainer’s affidavit, although both Gainer and his wife signed the original agreement on April 11, the figure of the realtor’s fee was not inserted into that document until June 9, when Gainer also signed the letter acknowledging his indebtedness. | [
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Robert H. Dudley, Justice.
Appellant was charged by information with burglary and rape by deviate sexual activity. He was found guilty of both crimes but appeals only from the conviction of rape by deviate sexual activity. He was sentenced to imprisonment for life and jurisdiction is in this Court pursuant to Rule 29 (1) (b). The appeal is meritorious.
Ark. Stat. Ann. § 41-1803 (Repl. 1977), in pertinent part, provides that either of two different types of conduct can constitute the crime of rape:
Rape — (1) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(a) by forcible compulsion . . .
(Emphasis added.)
Here, the information charged appellant with rape by forcibly engaging in deviate sexual activity. Deviate sexual activity is defined by statute as “any act of sexual gratification involving: (b) the penetration, however slight, of the vagina or anus of one [1] person by any body member or foreign instrument manipulated by another person.” Ark. Stat. Ann. § 41-1801 (1) (b). The proof at trial was insufficient to sustain the charge or rape by deviate sexual activity as the crime is defined. The only evidence relating to such a form of rape was the prosecutrix’s testimony that “he jerked my panties off and began to lick my bottom.” There was no evidence that appellant’s tongue penetrated the prosecutrix’s vagina or anus. Yet, the testimony of the prosecutrix, a retired nurse, aptly demonstrated her thorough knowledge of human anatomy. Manifestly, the State failed to prove the crime charged, rape by deviate sexual activity.
The information did not charge appellant with the crime of rape by forcible sexual intercourse. That type of rape is statutorily defined as the “penetration, however slight, of a vagina by a penis.” Ark. Stat. Ann. § 41-1801 (9). The detailed and specific testimony by the prosecutrix leaves no doubt that appellant was guilty of rape in this nature. She testified “he made me hold the labia, get hold of it and hold it open for me to get his penis inside of me.” Nonetheless, the State at no time sought to amend the information to correctly describe the nature of the rape which was committed. See Jones v. State, 275 Ark. 12, 627 S.W.2d 6 (1982). Subsequently, the appellant made a timely objection to the variance between the information and the proof and, in addition, moved for a directed verdict on the charge of rape by forcible deviate sexual activity, the trial court not only denied both motions but, over appellant’s additional objection, instructed the jury on rape by forcible sexual intercourse, which had never been charged, and instructed the jury on rape by forcible deviate sexual activity, which was not proven. Since there was no proof of rape by deviate sexual activity the jury must have found the appellant guilty of rape by sexual intercourse, a crime with which appellant was never charged. The appellant correctly contends that he cannot be found guilty of a crime with which he was never charged.
The State makes two counter arguments. The first is that appellant was charged with forcible rape, proven guilty of forcible rape, convicted of forcible rape and therefore no fatal variance existed. That argument assumes a fallacious base because appellant was not solely charged with rape. If he had been charged only in general terms, then it might have been sufficient under our liberal rules of procedure, especially in the absence of a motion for a bill of particulars, But here appellant was charged with rape by forcibly engaging in deviate sexual activity. Such a charge includes the crimes formerly labelled by statute as sodomy and buggery, except for the bestiality aspect, and the penetration may be by finger, tongue or dildo.
The statute defining this crime, as distinguished from rape by sexual intercourse, contains no reference to the sex of either the offender or the victim. A neuter gender definition is essential since either a male or a female could be the victim or the perpetrator of this nature of rape. It includes homosexual conduct as well as most types of unnatural hetersexual conduct. See Commentary to Ark. Stat. Ann. §§ 41-1801 and -1803. Acts of deviate sexual activity have been judicially described as unnatural acts. Strum v. State, 168 Ark. 1012, 272 S.W.2d 359 (1925).
On the other hand, the crime of forcibly engaging in sexual intercourse has been separately defined and is limited to penetration of a vagina by a penis. Ark. Stat. Ann. § 41-1801 (9). Obviously it is restricted to heterosexual conduct and, except for the forcible compulsion, is a natural sex act. The essential elements of the crimes differ.
The test for determining whether an information for one offense includes another is whether the offenses are of the same general character and whether the information for one offense contains all of the essential elements of theother. For example, in Ridgeway v. State, 251 Ark. 157, 472 S.W.2d 108 (1971), the defendant was charged with assault with a deadly weapon, a knife, with intent to kill. The proof developed that the assault was with a pistol. We held no variance occurred because only one crime was involved, assault with intent to kill. The distinguishing fact in this case and the case at bar is that essentially two different crimes are involved here. Where two different crimes are involved the defendant may not be, as here, charged with a crime and convicted of another. To sustain a conviction on the ground that the evidence supports a charge not made would be a sheer denial of due process. Thornhill v. Alabama, 310 U.S. 88 (1940).
The State’s second argument is that the sexual intercourse proven in this case comes within the statutory definition of deviate sexual activity. The argument is without merit. Criminal statutes must be strictly construed. Breakfield v. State, 263 Ark. 398, 566 S.W.2d 729 (1978). Under our prior law these criminal acts had separate names; rape by sexual intercourse was termed rape and rape by deviate sexual activity was termed sodomy or buggery. Under the Criminal Code of 1976 the separate criminal acts continue to be defined separately and they must be so construed.
The current statutory definitions of these crimes are derived from New York Penal Law § 130.00. See Commentary to Ark. Stat. Ann. § 41-1801 (Repl. 1977). We note that the Appellate Division of the Supreme Court of New York stated: “The definition of deviate sexual activity does not refer to sexual intercourse in its ordinary meaning but refers to specific sexual conduct — contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.” People v. Griffith, 80 A.D.2d 590, 435 NYS2d 767 (1981). The two crimes are not the same. Forced sexual intercourse does not come within the crime of forced deviate sexual activity.
Reversed and remanded for a new trial.
Purtle, J., concurs.
Hickman and Hays, JJ., dissent. | [
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Hart, C. J.
Joe Storey prosecutes this appeal to reverse a judgment of the circuit court dismissing his complaint in an election contest proceeding. At the Democratic primary held on the 12th day of August, 1930, Joe Storey and Sam Johnson were opposing candidates for sheriff of Stone County, Arkansas. The returns from the primary election show that Storey received 544 votes and that Johnson received 1,233 votes. Johnson was duly declared the nominee of the Democratic party of Stone County, and a certificate of nomination was issued to him.
At the trial of the contest in the circuit court, it was shown that a list of poll taxpayers was filed by the col lector with the county clerk, but that the correctness of the list was not authenticated by the affidavit of the collector as required by § 3740 of Crawford & Moses ’ Digest. The record also shows that, of the votes cast at said election, there were 26 votes with poll tax receipts attached to them. Of these 26 votes, twenty-one were cast for Storey and five for Johnson.
Under this state of the record the court properly decided in favor of Johnson and dismissed the contest of Storey. Under § 3740 of the Digest, the collector of the county is required to file with the county clerk a list of poll taxpayers of all persons who have up to and including the first Monday in July paid the poll tax assessed against them respectively, and the correctness of this list is required to be authenticated by the affidavit of the collector in person. One of the objects of the statute is to insure that the printed list which the section requires to be delivered to the election commissioners shall only contain the names of those duly qualified to vote. The printed list can only be made the basis of evidence to be used in an election contest where there is a substantial compliance with the statute, and we have held that there is no substantial compliance with the statute where the list of poll taxpayers is not authenticated by the collector in person. Brown v. Nisler, 179 Ark. 178, 15 S. W. (2d) 314 ; Cain v. McGregor, ante p. 633 ; and Tucker v. Meroney, ante p. 681.
It may be conceded that the 26 votes with poll tax receipts attached to them were legal votes, and still he has not made out his case as required by law. As we have already seen, the record shows that of the votes cast at the election for sheriff, Johnson received 1,233 votes and Storey only 524 votes. Prima facie it is presumed that every one who voted at an election is qualified to vote. The official returns are quasi records and import verity until overcome by affirmative proof that they do not speak the truth. Powell v. Holman, 50 Ark. 85, 6 S. W. 505 ; Letchworth v. Flinn, 108 Ark. 301, 157 S. W. 402 ; Webb v. Bowden, 124 Ark. 244, 187 S. W. 461 ; Cain v. McGregor, ante p. 633 ; and Tucker v. Meroney, ante p. 681.
In the application of this rule, there is a presumption that all the votes cast at the election were lawful until their verity was impeached by affirmative evidence. The list of poll taxpayers was not authenticated as required by statute; and for that reason, as above stated, it could not be used as a basis to show that any of the votes cast at the election were illegal. If it be conceded that all the twenty-six votes with the poll tax receipts attached to them were legal votes, and they all have been cast for the contestant, this would not change the result of the election. There would still be a majority of several hundred votes for the contestee. Therefore the circuit court properly held that he was entitled to receive the certificate of nomination and dismissed the plaintiff’s complaint. Therefore the judgment will be affirmed. | [
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Griffin Smith, Chief Justice.
In 1928 E. E. Jeffries and his wife deeded to Woodruff County — “for county purposes only” — slightly more than 32 acres lying approximately a mile west of McCrory. If abandoned for county purposes the property would revert to the grantors. This is the .third controversy involving use of the laud. See Jeffries v. State, Use of Woodruff County, 212 Ark. 213, 205 S. W. 2d 194; same, 216 Ark. 657, 226 S. W. 2d 810.
The Quorum Court, in appropriating funds for 1950, allotted $2,500 for use in constructing buildings for a county fair, and $300 for expenses pertaining to the fair.
Woodruff County Fair Association was incorporated by order of the Circuit Court as a non-profit organization to promote the live stock, agricultural, horticultural and related interests of the people generally. It has $1,200 for use in supplementing construction costs. The Association and the County, acting together, expect to receive public subscriptions as an aid to the project.
C. S. Gordon, a taxpaying citizen, brought an injunc-tiye action against George P. Eldridge as County Judge, and against the Fair Association. Tie cited'the condition in the Jeffries deed, contending that use to which the property would be put would place the grantor in a position to invoke the reverter clause of his deed, and the County would lose its investment. Jeffries intervened. The Special Chancellor found that the appropriation was proper for county purposes, hence not contrary to the terms of the grant. The intervention was dismissed as premature. The appeal questions these determinations.
While the language of the Quorum Court appropriation must be looked to primarily in arriving at the contemplated purpose in authorizing thé expenditure, it must not be presumed that there was an intent to violate Art. 12, Sec. 5, of the Constitution. It prohibits a county from becoming a stockholder in any company, association, or corporation. Neither may a county obtain or appropriate money for, or loan its credit to, any corporation, association, institution, or individual.
This provision of the Constitution was considered by the Court in an opinion written by Mr. Justice Wood in 1923, Bourland v. Pollock, 157 Ark. 538, 249 S. W. 21. Cities, towns, and other municipal corporations are in- eluded in the constitutional restriction. In the Bourland-Pollock case a federated welfare association ■ was involved. Pollock was treasurer of the association and received monthly from the Ft. Smith board of commissioners the sum of $125 to be expended for activities the City itself had authority to engage in. While holding that the “welfare association” did not come within the “inhibitory words of the Constitution,” and hence there was no express application of Art. 12, Sec. 5, the opinion stated that in contributing to the welfare association or committee to carry on governmental work which the city should have performed through some agency, the municipality in effect adopted the association as its own agency “to do the character of governmental work which manifestly the city authorities conceived could be better . . . done as through some instrumentality which was exclusively of its own creation and over which it had supreme control.” A strong dissenting opinion by Mr. Justice Hart was concurred in by Chief Justice McCul-loch. They took the position that the money appropriated by the city was a gift for purposes the city had a right to engage in, but that in adopting the association as its agent (as expressed by the majority) the city lost control to such an extent that its duty of supervision was abdicated. It was also the view of the dissenting justices that the so-called “association” came within the terms of Art. 12, Sec. 5.
But should we agree with Judges Hart and McCul-loch to the extent of impairing the majority holding that the Association was within the constitution’s prohibitory language, that alone would not sustain the position of appellant and intervener. It would be necessary to go further and say that the appropriation by Woodruff County was to the Fair Association, a contribution or gift over which the County lost its property rights and surrendered all control. Proof does not support this conclusion.
Gordon’s complaint alleged that the Quorum Court’s purpose in making the $2,500 appropriation was “to assist the County Fair Association in erecting permanent fair buildings on the lands” and that the work was about to be undertaken. The intervener adopted all of Gordon’s allegations, but also contended that use to which the property would be put was not a county purpose.
The County Judge testified that if not' restrained the County Court would approve an allowance and direct issuance of warrants covering the appropriation; but, said he, the condition would be that the Fair Association should have possession of only a part of the ground for a limited period each year — that is, for the time necessary to prepare for the annual event and,its incidents. The buildings would be owned by the County, and the Association would have access to them “for the week or ten days while the fair is in progress.” During the remainder of the year these buildings would be used for storing [county] machinery and supplies.
Describing the fair as “the show Avindow of farmer activities,” John Miller, testifying as manager of the incorporated Association, said that $1,200 had been saved from former activities, and that his group intended to permit use of this fund as a part of the building program, but title to the realty would remain in the County, and subject to its control. There was no purpose on the part of those promoting the fair to make money. All profits would be reinvested in facilities or activities and rededicated to the general plan to aid agriculture and related undertakings.
Appellants cannot prevail if what is proposed to be done comes within the scope of county purposes. Courts have not hesitated to construe the Constitution as permitting activities not expressly recognized at the time the Constitution was adopted. Control and management of all County property are placed, in the County Court. Ark. Stat’s, Sec. 22-601, Little Rock Chamber of Commerce v. Pulaski County, 113 Ark. 439, 168 S. W. 848. In the Chamber of Commerce-Pulaski County case property owned by the County and not then used for county purposes, was sold to the Chamber of Commerce for $1 and “benefits to accrue to said county from the expenditure by said Chamber of Commerce of the funds raised for tlie industrial and development purposes for the above described lands.” In holding that the Connty Court had a right to make the sale and that the transaction was free from fraud, and not in contravention of Art. 12, § 5, of the Constitution, (pp. 444-5*of the Arkansas Reports) the Court in its opinion by Chief Justice McCulloch necessarily found that industrial development was a general connty purpose in the sense that the County Court had power to evaluate prospects and to regard them as the equivalent of money; otherwise the admitted cash payment of $1 would have been so palpably inadequate as to amount to fraud. While fraud was not alleged, the opinion quite clearly reflects the Court’s view that anticipatory values were the main consideration.
Births and deaths, and their registration, were not expressly mentioned in the Constitution (Art. 7, § 28), or in the Act of February 5,1875 (Ark. Stat’s, § 22-601), but expenditures for services by a local registrar were approved “for county purposes” in Burgess v. Johnson Connty, 158 Ark. 218, 250 S. W. 10. Agricultural and home demonstration agents and their work come within the broad scope of county purposes. Smith and Buechley v. Hempstead County, 180 Ark. 272, 21 S. W. 2d 178; Watson and Smith v. Union County, 193 Ark. 559, 101 S. W. 2d 791. See Ark. Stat’s, Sec. 17-515 and 17-517. Contra, Johnson v. Donham, 191 Ark. 192, 84 S. W. 2d 374.
The General Assembly has expressly recognized county fairs (Act 44 of 1927) as agencies through which the agricultural, manufacturing, and educational interests of the community may be promoted when provision is made “for the exhibition and display of the products of the farms, orchards, vineyards, gardens, manufacturing industries, and the display of the work of the pupils in the public schools of the County, and [the display of] domestic fowls and animals, for the benefit of the public, and not for individual or personal profit.”
In view of the limitation and restrictions attending expenditure of the $2,500 — a sum available only when the County Court directs issuance of warrants — the transaction falls within the scope of county purposes, as de fined by this Court. Special Chancellor Norton properly declined to enjoin.
Having decided that the expenditure was for an authorized activity or county purpose, it follows that construction of the buildings and their part-time use by the Fair Association do not conflict with the Jeffries grant, hence it is unnecessary to say whether the intervention was premature.
Affirmed.
Mrs. Jeffries died before the suit was begun. | [
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Frank Holt, Justice.
Appellant was found guilty of robbery by the trial court, sitting as a jury, and a 10-year penitentiary sentence was imposed. When the state rested its case, the appellant offered no testimony and moved for a directed verdict of not guilty which the court refused. On appeal appellant’s only contention, through court appointed counsel, is that the court erred in its denial of the motion. We hold that the court was correct.
The thrust of appellant’s argument is primarily directed toward insufficient identification. The victim of the robbery, a 72-year-old semi-retired mechanic, testified that the appellant and a companion came into his garage and asked for some bolts for a mechanical unit. On direct examination the victim identified the appellant as the one who “shoved the gun in my side” and demanded his money. Appellant then struck him with the gun and removed his billfold and its contents ($100-$120) from his pocket. The robber and his companion fled and were apprehended a few minutes later in the vicinity by the police. On cross-examination the victim testified that, although he could not “make a positive identification,” the appellant resembled the individual who robbed him since he was the same size and height. The victim further answered that he had previously identified appellant in a lineup procedure on the afternoon of the robbery. The appellant admitted in his own uncontradicted handwritten statement that he was present at the scene of the alleged offense, although he denied being a participant.
It is a well established rule that a directed verdict is proper only when no fact issue exists and on appeal we review the evidence in the light most favorable to the ap-pellee and affirm if there is any substantial evidence. Parker v. State, 252 Ark. 1242, 482 S.W. 2d 822 (1972). In the case at bar a factual issue existed and the evidence is amply substantial to support the verdict.
Affirmed. | [
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Per Curiam.
Appellant, Josephus Brown, by his attorney John W.Achor, has filed a motion for a rule on the clerk. The motion states that the transcript was tendered to the Clerk of this Court within the time ordered by the Circuit Court of Pulaski County. However, the notice of appeal was filed on July 15,1982 and appellant had 90 days to either file the transcript or file for an order extending the time to complete and file the transcript. Neither was filed within 90 days. Thus, the record in this appeal was not timely filed. No good reason is given for the delay in filing. Therefore, we deny the motion.
If an affidavit attached to the motion had stated that the attorney had made an error or had been careless in the computation of time, or had given any good cause for the delay, the motion could have been granted. In a per curiam opinion regarding belated appeals tendered February 5, 1979,265 Ark. 964, we discussed the problem of an untimely tender of a record caused by the attorney. We decided that we have no alternative but to grant the motion for relief in such a case. However, we pointed out that a copy of the opinion would be forwarded to the Committee on Professional Conduct as is our practice.
This denial of a belated appeal is without prejudice. If good cause is shown later, we can grant the motion. | [
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Mehaeey, J.
The appellant was indicted, tried and convicted in the Franklin Circuit Court of the crime of manufacturing liquor. Appellant’s premises were searched, and there was found in a little house about forty feet from his dwelling about one and one-half gallons of whiskey in a three-gallon keg. There was about a truck load of old boxes, bottles and jugs, a barrel of wine and eighty-two bottles of home-brew. The officers said that appellant told them he made the home-brew for his own use. Appellant denied this, and he testified that he used the liftle house for a junk house and that there was a man living in it; that he did not know the whiskby was there. He admitted that he said that he made what was in the barrel. He said he had more strawberries than he could sell; that he put strawberries in the barrel without intentionally doing anything with them; he thought the berries would probably make vinegar. He was only at home part of the time. He said the liquid in the barrel that witnesses called wine was vinegar. The witnesses testified that a man named Jake Schriver lived in the little house. There was some conflict in the evidence but some of the witnesses testified that the barrel contained wine, and they also testified that appellant said the stuff in the bottles was his. The evidence showed that Schriver lived in the little house five or six months and that appellant would leave early in the morning and come home late at night. Appellant contends that the court erred in permitting the beer and wine to be exhibited to the .jury for the purpose of determining whether it contained alcohol. It was not error to permit jurors to make an examination to determiné,' in connection with the testimony of the witnesses whether it was alcohol. State v. Ling, 198 Iowa 598, 199 N. W. 285 ; Thiele pape v. State, 89 Tex. Cr. Rep. 493, 231 S. W. 769 ; Enyart v. People, 70 Colo. 362, 201 Pac. 564 ; State v. Burcham, 109 Wash. 625, 187 Pac. 352 ; State v. Dascenzo, 30 N. M. 34, 226 Pac. 1099 ; State v. Simmons, 183 N. C. 684, 110 S. E. 591.
It is next contended that the court erred in permitting Ledgerwood to testify that he tasted the wine, but did not drink enough to say whether or not it was intoxicating and to further testify that it was wine. This was competent testimony. A witness may testify as to his opinion as to whether liquor is intoxicating from tasting it. He may also testify as to its effect from drinking it. Joyce on Intoxicating Liquors, p. 717.
“If from use or by any other means a citizen knows what whiskey is, he may be a competent witness to the character of liquor. It does not require a scientific expert to identify a well known article of manufacture and commerce in common use. One who had drunk whiskey, who is familiar with its taste and smell, can give opinion evidence as to whether the beverage sold and drunk was whiskey. * * * The same reason applies with almost equal force to wine. ’ ’ Blakemore on Prohibition, p. 164.
It is next contended that the court erred in calling the jury back after they had deliberated for some time, and giving a cautionary instruction. Appellant argues that by giving this instruction the court tells them that it is their duty to agree; that that is what they are required to do under their oath. The court did not tell the jury they were required to agree. They were told that it was their duty to try to reach a result. Appellant calls attention to Stocktons v. State, 174 Ark. 472, 295 S. W. 397. The court, however, in that case said: “A short cautionary instruction * * * would not therefore be within the constitutional prohibition.” The instruction in the Stockton case the court said was long, involved and argumentative. The instruction in the instant case is not subject to the objection pointed out by the court in the Stockton case.
In the next case referred to, Stepp v. State, 170 Ark. 1061, 282 S. W. 684, the court expressly stated that the trial court might give an instruction like the one in the case at bar. In the next case cited and relied on by the appellant, Clarkson v. State, 168 Ark. 1122, 273 S. W. 353, the instruction was approved by the court. There was no error in giving the instruction given in this case. Mallory v. State, 141 Ark. 503, 217 S. W. 482 ; Whitley v. State, 114 Ark. 243, 169 S. W. 952.
The appellant contends that the court erred in refusing to give certain instructions requested by him, but these instructions were all covered 'by instructions given by the court. It was not error to refuse to grant a new trial on the ground of newly discovered evidence. The iiewly discovered evidence was cumulative, and the appellant did not allege any facts showing that he had used diligence. Reeder v. State, 181 Ark. 813, 27 S. W. (2d) 989.
Appellant contends that the judgment should be reversed because the verdict was not unanimous and presents to the court the affidavit of jurors. Section 3220 of C. & M. Digest is as follows: “A juror cannot be examined to establish a ground for a new trial, except it be to establish, as a ground for a new trial, that the verdict was made by lot.” The affidavits do not tend to establish that the verdict was made by lot, but are for an entirely different purpose. Wallace v. State, 180 Ark. 627, 22 S. W. (2d) 395.
We find no error, and the judgment is affirmed. | [
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George Rose Smith, J.
In 1919 S. Y. Rogers and others executed to E. I. Newblock an oil and gas lease upon an eighty-acre tract. This lease was in the customary form, reserving to the lessors a one-eighth royalty in all oil and gas produced under the lease. In the following year the lessors executed and delivered to L. A. Longino a deed, the construction of which is the only question presented by this case. The appellants, Longino’s heirs, contend that the effect of the 1920 deed was to convey an undivided one-fourth interest in all oil and gas underlying the tract in question. The appellees, who have acquired the title of the original lessors, interpret the deed as having conveyed merely a one-fourth interest in any royalties payable under the 1919 lease. The chancellor sustained the latter contention and accordingly canceled the deed as a cloud on the appellees’ title, the lease having expired in 1924.
The deed in controversy is entitled “Sale'of Royalty in Oil and G-as Lease. ’ ’ The granting clause recites that the grantors convey to Longino “a one-fourth undivided interest in all right, title and interest retained by us, or in any manner whatsoever owned by us, in a certain oil, gas and mineral lease dated Dec. 19, 1919, wherein the aforesaid grantors conveyed to E. I. Newblock and to their heirs, assigns and successors the oil, gas and mineral rights” underlying the eighty acres. The habendum clause reads in part: “To have and to hold said interest in the aforesaid royalty retained in the hereinbefore mentioned land,” etc. In the acknowledgment the grantors are referred to as “grantors in the foregoing sale of royalty retained in lease of oil, gas and minerals. ’ ’
The deed under consideration is unquestionably ambiguous, but we have concluded that the chancellor’s construction is a more reasonable one than that suggested by the appellants. When the instrument is examined in its entirety it is seen to make three separate references to “royalty” as being tbe subject of tbe conveyance. We are aware tbat tbis term is sometimes loosely used to mean an interest in minerals in place, but it is well settled tbat tbe ordinary and legal meaning of tbe term is a share of tbe product or profit, to be paid to tbe grantor or lessor by those who are allowed to develop tbe property. It has often been pointed out tbat the ordinary meaning of royalty does not include a perpetual interest in oil or gas in tbe ground. Leydig v. Commissioner of Internal Revenues, 10th Cir., 43 Fed. 2d 494; Bellport v. Harrison, 123 Kan. 310, 255 P. 52; Rist v. Toole County, 117 Mont. 426, 159 P. 2d 340, 162 A. L. R. 406. On two occasions we have interpreted langmage not wholly dissimilar to tbat now before us as meaning royalty payments to tbe lessor rather than an interest in tbe minerals themselves. Keaton v. Murphy, 198 Ark. 799, 131 S. W. 2d 625; McWilliams v. Standard Oil Co., 205 Ark. 625, 170 S. W. 2d 367.
Tbe principal argument advanced by the appellants is based on the reference in tbe granting clause to “all right, title and interest retained by us, or in any manner whatsoever owned by us, in a certain oil, gas and mineral lease.” Counsel point out tbat tbe interest held by an oil and gas lessor is actually threefold: tbe surface ownership, tbe right to receive royalties, and a reversionary interest in tbe minerals in place. Summers, Oil and Gas, § 601. It is insisted tbat tbis granting clause must refer to the third of these legal interests as well as to tbe second. If tbe language were susceptible of tbis interpretation only then of course tbe granting clause would be entitled to greater weight than the title, haben-dum, or acknowledgment. But tbe trouble is that tbe granting clause is itself ambiguous. If tbe reversionary interest in the minerals is retained by tbe lessor, then is not the surface ownership also retained? As against the appellants’ argument it might equally well be said tbat tbe royalty interest is alone created by tbe lease and retained therein by tbe lessor; the other two interests have belonged to tbe lessor all along and simply do not pass to tbe lessee.
Since the granting clause is not so clear as to be controlling we look to other provisions of the deed to aid us in determining the intention of the parties. The three references to royalty, as well as the explicit designation of the particular lease from which the royalty is to be derived, leave no doubt that the appellees ’ interpretation is to be preferred. When we realize how easily the parties might have conveyed an interest in the minerals by the execution of an ordinary mineral deed we do not feel justified in saying that instead they sought to accomplish the same result by the cumbersome and roundabout method now urged by the appellants.
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Carleton Harris, Chief Justice.
This is the second appeal of this case. See Brooks v. McGill, 250 Ark. 534, 465 S.W.2d 902, where we reversed the chancellor and remanded the case for transfer to the Circuit Court of Lincoln County, Arkansas. On the second trial, the jury returned a verdict for Katie McGill, appellee herein, and from the judgment entered in accord with the verdict, appellant Charlie Brooks brings this appeal. For reversal, it is first asserted that the evidence does not support the verdict of the jury, and second that the court erred in striking certain testimony of the appellant, and in commenting upon the evidence. We proceed to a discussion of these points.
The litigation relates to the ownership of Lot 9 of Paul’s Addition to the Town of Grady. In September, 1946, Sam Bass and wife conveyed to Ira McGill and Katie McGill, land described as Lot 9, Block 3, of Paul’s Addition, and in November, 1951, Lem Mosley and wife gave a warranty deed to Charlie Brooks, conveying land described as Lots 5 and 8 in Block 3 of Paul’s Addition. Subsequent deeds from the State and Southeast Arkansas Levee District were obtained by Mrs. McGill to Lot 12 of the same block and addition to the Town of Grady, and her present residence is located on this lot. This suit was instituted by Mrs. McGill wherein it was alleged that Brooks had entered upon her property without her consent, had used the property for his own purposes, and interfered with her enjoyment and use of it. Brooks an swered, first alleging that the action was purely an ejectment action (which we sustained in reversing the case), and then asserting that he had been in possession of the land at issue for twenty years; that he had planted a garden thereon and used same for a number of years, and was the owner of the land. The testimony was what is commonly referred to as a “swearing match” between the witnesses on each side. In addition to appellee, seven witnesses testified on her behalf, and, in addition to Brooks, six witnesses testified on his behalf. Of course, this being a case at law, we are only interested in whether there was substantial evidence to support the verdict. Appellee testified that at the time Lot 9 was purchased, a dwelling house was located thereon, and that she and her husband moved into the house and lived there for approximately three years, when it was torn down and rebuilt on an adjacent lot (Lot 12); that at the time Lot 9 was acquired, it was surrounded, by a wire fence and that this fence had existed up until the time Brooks started removing it in 1968. Appellee further stated that she had told appellant not to interfere with the fence and lot. The witness said that while Brooks was living over at his mother’s house, and thought to be separated from his wife, she had permitted Mrs. Brooks, with whom she was friendly, to cultivate a garden on Lot 9. Other witnesses corroborated the location of the wire fence and other [acts relating to appellee’s ownership, Charlie Boulware stating that he personally saw Brooks remove the fence; he also testified that he heard Mrs. McGill tell appellant to move his lumber off Lot 9 sometime during 1968. Appellant’s case was based on the alleged fact that Brooks had lived on the property since 1946, and had always held himself out as the owner of Lot 9. His witnesses corroborated his claim of possession, his stepdaughter testifying that her mother had rented the land from Lem Mosely, and that Brooks had lived there since 1948. As earlier stated, the testimony was very much in conflict, but, in such event, as we have said on numerous occasions, the matter of which witnesses are correctly stating the facts is solely a question for the jury to determine, and if there is any substantial evidence to support the jury finding, we will not dis turb such finding on appeal, even if we might think the jury reached the wrong conclusion. Here, under the version given by appellee and witnesses, there was substantial evidence to support the jury verdict.
Appellant asserts that both appellee and Boulware committed perjury, and he cites instances of alleged conflicts in the evidence given by these parties in the chancery case, heretofore mentioned, and the circuit court case, here under consideradon. Apparently, it is his contention that we should consider these purported conflicts and reverse the case on that basis. No such procedure is followed by this court, nor is any authority cited to that effect. In fact, we have held to the contrary. See Magnolia Petroleum Company v. Saunders, 193 Ark. 1080, 104 S.W.2d 1062. The same contention, i.e., that a witness testified in the second trial contrary to testimony in the first trial was there raised, but we said:
“It is settled policy of law that witnesses are not bound in a second trial by testimony given in a former proceeding, and that prior statements or admissions may, in a subsequent action, be used only for the purpose of testing credibility.
The court also pointed out that when testimony of witnesses is out of harmony and the explanations they make are contradictory, the controversy is properly referable to the jury. Of course, there was nothing to prevent, and appellant probably did, argue any inconsistencies in the testimony of these witnesses to the jury.
Nor do we agree with appellant in his second contention. The record reveals the following during direct examination of Charlie Brooks.
“Q. Charlie, now your deed calls for Lot 5 and 8 in Block 3 of Paul’s Addition to the Town of Grady, Arkansas.
A. Yes sir.
Q. Now, did you look at this land before you bought it?
A. Yes sir, I looked at it.
Q. And what were the natural boundaries of the property that you bought?
A. Well, the boundaries of the property that I bought was ...”
Here, counsel for appellee objected on the basis that the answer given would be hearsay, “What somebody said”, unless it was shown that Mrs. McGill was present. Further:
“MR. CARTER: Your Honor, this is not hearsay, he is telling what he bought and the deed describes the piece of property. It doesn’t show anything except just the lot numbers, how he viewed the property, he bought the property after he saw it, I think he is entided to testify what he bought.
MR. HOWARD: May I say this? The deed speaks for itself, Lot 5 and 8. This lawsuit is about Lot 9. Now what somebody told him out here in the absence of Mrs. McGill would be hearsay.
MR. CARTER: Your Honor, it is not a question of what somebody told him, it is a question of what he bought.
THE COURT: Well, I am going to sustain the objection. This apparendy is to vary the terms of a written instrument. I would think, if he knows the boundaries there is a variance of what the actual description is, is that right?
MR. CARTER: Yes, sir. There is a variance of what the actual description is according to the plat and I think he is endded to testify to what he was buying.
THE COURT: I believe an engineer could testify as to what the boundaries are.
MR. CARTER: Your Honor, I am not asking him to testify what the boundaries are, I am asking him to testify as to the physical- property which he bought.
THE COURT: Your question was for him to describe the boundaries of the property.
MR. CARTER: Okay, well, I will rephrase my question.
Q. When you bought the property what, how much land were you buying?
MR. HOWARD: Now, if Your Honor please, I would object unless he lays a foundation. It has to be based upon what somebody told him, he is going to vary the face of that deed. We have a written instrument.
THE COURT: Sustain the objection.
MR. CARTER: Note our exceptions.
Q. Okay, you bought the land in 1951, I mean, you said you bought it in 1949 and the deed shows that you got the deed in 1951?
A. Yes sir, that’s right.
Q. Now this property between your house and the McGill house has been identified as Lot 9; now, when you bought your property in 1949 what property did you take possession of?
A. I taken possession of Lot 9, Lot 8 and Lot 5, I bought a hundred and fifty foot front, and 120 back.
MR. HOWARD: If Your Honor please, I will object and ask the Court to respectfully advise, to instruct the jury to disregard his statement about what he was suppose to get because it is based on what somebody said unless Mrs. McGill was present at the time.
THE COURT: I will sustain the objection and instruct the jury that the instrument has been introduced which indicates that this witness bought Lots 5 and 8 in Paul’s Addition to the Town of Grady. Disregard his testimony as to its size or this last statement as to its footage.” [Our emphasis].
Thereafter, Brooks did testify without objection as to his possession of all of Lot 9, stating that he and his sister-in-law dug out weeds, Johnson grass, and vines, from this lot and testifying that the first year he raised a potato patch, and the next year grew vegetables on Lot 9, including corn, peas, greens, butter beans, okra and watermelons. In fact, he said that every year, he had grown something on that particular property.
Appellant argues that the statement of the court to the jury to disregard his testimony effectively killed his claim of adverse possession. In his brief, appellant states:
“It is well settled in this state that where a person mistakenly takes possession of land that he thinks he owns and holds the same, for the statutory period holding himself out as owner and claiming adversely, will acquire title by adverse possession. The comment of the Court stating that his deed indicated that he bought Lots 5 and 8 prevented the appellant from establishing his claim of adverse possession even though he mistakenly thought that he had record title to the property.
“Therefore, Appellant, Charlie Brooks, had a right to tell a jury that he entered upon Lot 9 under the belief that he owned it, and that he had continuously had possession of it since he bought it, or at least thought he bought it, in 1951. The remarks of the court, and his instruction to the Jury upon the law as hereinabove stated, could not have left him with any hope of obtaining a favorable jury verdict, if the jury followed the instructions of the court which they apparently did.”
We cannot agree with this argument. The court did not rule out the statement of Charlie Brooks that he took possession of Lot 9, but only told the jury to disregard the testimony as to the size and footage (which was purportedly the total of the three lots). That the statement about taking possession of Lot 9 was not ruled out is shown by the fact that immediately after the court’s ruling, Brooks testified extensively as to what he and his sister-in-law grew on Lot 9 throughout the years. He also testified about cutting a ditch on a part of Lot 9. Let it be remembered, Brooks has never, in any of his pleadings, contended that he had any record title to Lot 9. His full contention has been that he went into possession of it in 1949, and claimed it as his own from that time. Nor is there any assertion by either party that one had possession of a part of Lot 9 and the other the balance, so the amount of footage is immaterial; appellant simply testified that he took possession of all of the lot.
Appellant says that the remarks of the court, quoted herein from the record, were comments upon the evidence, all being to the prejudice of the claim of adverse possession by appellant. He apparently refers to the court’s statements relative to an engineer testifying about the boundaries and a reference to varying the terms of a written instrument. The statement about the engineer was made because the court understood counsel to be asking Brooks to testify to boundary lines, counsel later rephrasing his question. The other comment was in the nature of a question, but neither comment could have prejudiced the contention of appellant, viz., that he took possession of Lot 9 and held it ad versely thereafter. After all, what the deed recited as to the lots being conveyed, had no bearing on the land Brooks claimed, since his sole claim to title was by adverse possession. As shown by the quoted record, it was admitted that the conveyance received from Mosely only gave him title to Lots 5 and 8.
The court gave the jury several instructions on adverse possession, telling the jury that Charlie Brooks claimed title to the land by adverse possession and that adverse possession ripens into ownership when there are seven years actual, open, notorious, peaceable, continuance, hostile and exclusive possession, with the intent to hold adversely. The jury was specifically told that notice of adverse possession may be actual or may be inferred from facts and circumstances, and that neither payment of taxes nor color of title is essential to establish a claim of title to improved lands by adverse possession where the claimant and predecessors are in actual possession. In other words, the contentions of Brooks were specifically and properly given to the jury, and we find no prejudicial error.
Affirmed.
Byrd, J. dissents.
Actually, on cross-examination, appellant testified about this 150 ft., and it was permitted in evidence.
As far as record title to Lot 9 is concerned, same was in Sam Bass, who deeded the property to appellee and husband in 1946, and if appellant’s grantor, Mosely, indicated to Brooks that he owned Lot 9, relief would be properly obtained from Mosely. | [
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Per Curiam.
While this case was pending in the Court of Appeals, the appellee moved to dismiss the appeal on the ground that the notice of appeal was not filed within the time allowed by Rule 4 of the Rules of Appellate Procedure. The Court of Appeals transferred the motion to this court under Rule 29 (1) (c).
The final decree was entered on July 14, 1982. On July 26 the appellants filed a motion for a new trial, which under Rule 4 extended the time for filing notice of appeal for 30 days, expiring on August 25. On August 23 or 24 an attorney for the appellants submitted the motion for new trial to the chancellor, who orally denied it. Next, there was a conference telephone call on September 15, participated in by the chancellor and an attorney for each side. During that conference the chancellor stated that since one of the appellants’ attorneys had apparently been unaware that the chancellor had neither taken the motion for new trial under advisement nor set it for hearing within 30 days under Rule 4, the chancellor was going to enter a formal order overruling the motion. That order was entered on September 17. The appellants’ notice of appeal, a jurisdictional requirement, was then filed on September 20.
The motion to dismiss the appeal must be granted. Under Rule 4 (c) the party filing a motion for new trial must present the motion to the court within 30 days, and if the matter cannot be heard within the 30 days the movant must, within those 30 days, request the court to take the matter under advisement or to set a definite date for a hearing. If the court does neither, the motion is deemed to be denied at the expiration of 30 days after its filing — here August 25. Under Rule 4 (d), if the motion is denied by the court or is deemed to have been disposed of, a party desiring to appeal has 10 days from the entry of the order or from the date of the presumed disposition of the motion to file notice of appeal. Here the motion was actually denied on August 24, but the notice of appeal was not filed until September 20.
The purpose of Rule 4 is to accelerate the appellate process, not to delay it. In the first case construing the statute permitting the time for filing the notice of appeal to be extended by a motion for new trial, this court said that when the trial court extended the 30-day limitation by taking the motion for new trial under advisement, it was desirable, to avoid the uncertainties of oral testimony, that a docket entry or other written dated record be made. St. Louis SW Ry. v. Farrell, 241 Ark. 707, 409 S.W.2d 341 (1966). More than two years ago the Court of Appeals held, correctly, that the requirement of a written record has become mandatory. Jacobs v. Leilabadi, 267 Ark. 1020, 593 S.W.2d 479 (1980).
If the trial court in the case at bar had done nothing within 30 days after the filing of the motion for new trial, the motion would have been deemed denied, requiring the notice of appeal to be filed within 10 more days. The appellants argue in effect that since the motion was orally denied within the 30 days, they were entitled to wait for weeks or presumably even months before setting the 10-day limitation in motion by having the denial reduced to writing and filed with the clerk. The extension of the 30-day period is plainly for the benefit of the trial judge, who must either take the case under advisement or set a hearing. Its purpose is not to delay the case needlessly. Here, when the chancellor orally denied the motion, counsel could have obtained a written order and filed notice of appeal within the 10 days allowed. Alternatively, counsel could have filed the notice of appeal at once, without waiting for the entry of an order. Wilhelm v. McLaughlin, 228 Ark. 582, 309 S.W.2d 203 (1958). Neither option was exercised.
The appeal is dismissed.
Adkisson, C.J., and Purtle, J., would deny. | [
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Humphreys, J.
Appellee brought suit against appellant in the. circuit court of Jefferson County to recover damages in the sum of $10,000 for injuries he received through the alleged negligence of appellant’s superintendent and general foreman ordering him 'to go hack in the boiler room, which they knew or should have known was a dangerous, place on account of the burning mill or plant, to put more water in the boilers in an effort to prevent them from blowing up.-
Appellant filed an answer denving the material allegations of the complaint, and pleading the affirmative defenses of assumed risk and contributory negligence on the part of appellee.
The cause was submitted to a jury on the pleadings, testimonv and instructions of the court which resulted in a verdict and judgment against appellant for $4,000, from which is this appeal.
The correctness of the instructions is not questioned, the only ground urged for a reversal of the judgment being-that there is a total want of evidence to show negligence on the part of appellant; but, if so, that the undisputed evidence reflects the assumption of the risk and contributory negligence by appellee.
The plant or mill was a large heading factory located in the eastern part of Pine Bluff. The boiler room containing several large boilers was located south of the mill. The engine room was between the boiler room and the mill, and dynamo room was adjoining the boiler room on the east. The mill caught on fire, spread through and completely destroyed the plant, including the engine, boiler and dynamo rooms. During’ the conflagration a large crowd had gathered and all were excited. Appellee, a colored man, the head fireman, who had been employed by appellant in that capacity for twenty-three years, came out of the boiler room to spe what progress the fire had made and to help, if needed, and was standing with the crowd on the west side of the' boiler room where he could not observe the dynamo room when the superintendent, George Meehan, and the foreman, Lee Hetzel, came running around from the dynamo. room and ordered appellee to go back into the boiler room and see that plenty of water was in the boilers, stating that if the boilers exploded for want of sufficient water all the people around there would be killed. Appellee asked Mr. Hetzel if he thought he (appellee) could make it, and was told that he could and to hurry if he was going. Some of the witnesses testified that the orders to go in were accompanied by oaths. Appellee obeyed by entering the boiler room and following a narrow passageway the length of the boilers, and, while behind them turning on the water pumps, flames and smoke burst into the boiler room from the dynamo room and made it hard for him to escape. In an effort to get out through the darkness he struck his side against the end of a pump, fell over against a pile of burned-out arch bars, seriously injuring his left side and right leg. He was overcome by the heat and smoke, and was pulled out of the room by a fellow-workman who happened to see his hand near the door before the room burned down. As a result of the injuries, he was confined to his bed for two months and has not been able to work, except at light jobs intermittently since then. At the time of the injury he was in good physical condition, fifty-one years of age and was earning $21.60 a week.
The general rule of law is that an employee must obey the orders of his employer unless the dangers in obeying are so obvious and imminent that no person in the exercise of ordinary care and prudence would under take to do so. Choctaw, Oklahoma & Gulf Rd. Co. v. Jones, 77 Ark. 367, 92 S. W. 244, 4 L. R. A. N. S. 837 ; Southern Cotton Oil Co. v. Spotts, 77 Ark. 458, 92 S. W. 249 ; Scott v. Wisconsin Arkansas Lumber Co., 148 Ark. 66, 229 S. W. 720.
Where performance of an order or command involves danger, unless obviously and apparently certain, the employee may rely upon his superior’s knowledge and judgment relative to the hazard in the undertaking. St. L. I. M. & So. Ry. Co. v. Rickman., 65 Ark. 138, 45 S. W. 56 ; St. Louis & North Arkansas Rd. Co. v. Mathis, 77 Ark. 184, 91 S. W. 763 ; Dickinson v. Mooneyham, 136 Ark. 606, 203 S. W. 840.
We think the facts in the instant case bring it well within the rule 'announced in the cases referred to. It is true that obedience of the order in the instant case involved a degree of hazard and. risk, but the extent of the danger was not so obvious and apparent that appellee was not justified in relying upon the judgment of his superiors. The superintendent and foreman knew more about the condition of the dynamo room than appellee, and were in closer touch with the situation and the condition than appellee. Before obeying the emphatic command of Hetzel, the foreman, to go back into the boiler room and put more water in the boilers appellee asked him if he thought he could make it and was informed that he could. In reliance upon his foreman’s judgment, he performed the task assigned to him to his great injury and in doing so was not guilty of contributory negligence, and did not assume the risk under the rules of law applicable to cases of this kind.
Appellant makes the further contention that the verdict is excessive. We find nothing in the evidence to sustain it in this contention. The record reflects that appellee suffered great physical and mental' anguish, as well as the loss of his earning capacity on account of the injury.
The judgment is affirmed. | [
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Minor W. Millwee, Justice.
The Legislature of 1939 enacted Act 131 (Ark. Stats., 1947, §§ 19-3401 and 19-3402) authorizing municipalities to regulate the production and sale of milk and milk products sold for ultimate consumption therein in accordance with the 1939 edition of the United States Public Health Service Milk Ordinance. Section 19-3402 prescribes the form of the ordinance under which municipalities are authorized to adopt by reference the standard U. S. Public Health Service ordinance.
The City of Hope, Arkansas, passed Ordinance 537 on July 10, 1939, adopting the standard ordinance. Section 12 of Ordinance No. 537 reads: “MILK AND MILK PRODUCTS PROM POINTS BEYOND THE LIMITS OF INSPECTION OF THE CITY OF HOPE, ARKANSAS. Milk and milk products from points beyond the limits of inspection of the City of Hope, Arkansas, may not be sold in the City of Hope, Arkansas, or its police jurisdiction, unless produced and/or pasteurized under grading provisions identical with those of this ordinance; provided that the City Milk Inspector shall satisfy himself that the health officer having jurisdiction over the production and processing is properly enforcing such provisions.”
In 1940 the Hope City Council passed Ordinance No. 563 which provided that no milk or cream should be sold in the city that had been pasteurized outside of Hemp-stead County, Arkansas, except as authorized by the City Milk Inspector.
On June 30, 1949, appellant, William McClendon, filed an application with the proper officials for a permit to sell grade A milk'within the City of Hope. He proposed to transport the milk from the Borden Milk Plant in Texarkana, Texas, and to comply with Ordinance 537 and all city and state health laws and regulations. Upon being denied a permit, appellant instituted suit in the Hempstead Chancery Court on July 25, 1949, questioning the validity of Ordinance No. 563 and the action of the city authorities in refusing to grant his application for a permit. Acting on advice of counsel that Ordinance No. 563 was void, appellant on September 1, 1949, began distributing milk products at wholesale to cafes and stores in the city.
On September 6, 1949, the Hope City Council repealed Ordinance No. 563 and enacted Ordinance No. 644. Sections 2 and 5 of this ordinance are as follows: “SECTION 2. That § 12 of Ordinance 537 (§ 525 of the Digest) be and the same is hereby amended to read as follows: ‘No milk or milk products, regardless of origin, may be sold in the City of Hope unless produced and/or pasteurized under grading provisions identical with those of §§ 457 to 529 inclusive of the Digest; and it shall be the duty of the City Milk Inspector to satisfy himself that such production and/or processing provisions are complied with.
“ ‘And no milk or milk products, regardless of origin, may be sold in the City of Hope unless the person, firm or corporation producing and/or processing-said milk or milk products has paid the applicable inspection fees provided in this ordinance and holds a permit issued by the City Milk Inspector of the City of Hope. Any distributor, whether independent contractor or agent of a producer or processor, or wholesale or retail dealer, distributing milk in the City of Hope from a producer and/or processing plant wbicb does not hold a permit from the City Milk Inspector of the City of Hope, shall be subjected to the same penalties as set forth in § 10 of this ordinance.’
‘ ‘ SECTION 5. Every person or firm or corporation selling milk to or producing milk for pasteurizing, homogenizing, bottling, or other plants where milk is prepared for sale to the consumer within the City of Hope shall pay an inspection fee to the City of Hope in the sum of two-thirds (2/3c) cent per each 100 pounds of milk sold or produced by such person, firm or corporation to or for such pasteurizing, homogenizing, bottling or other plants. Such plants purchasing or receiving milk shall collect from the seller or the producer of the milk the above stated inspection fee of two-thirds cent for each 100 pounds of milk from the person, firm or corporation selling or producing the milk to or for such pasteurizing, homogenizing, bottling or other plants. The purchaser shall keep an accurate record of same and remit such money or moneys to the City Collector of the City of Hope not later than the 10th day of each month after the effective date of this Ordinance. The permit heretofore issued by the City of Hope to any pasteurizing, homogenizing, bottling or other plants within ■the inspection jurisdiction of the City of Hope which fails or neglects to make such collections and remit same to the City Collector of the City of Hope as herein provided, shall be revoked by operation of law, and such person, firm or corporation shall be prohibited from carrying on or doing business in the City of Hope. In no event shall the amount paid by the producer be less than five ($5.00) dollars per year.”
Section 6 of Ordinance No. 644 provides: “Every person, firm or corporation operating a milk plant or place where milk or milk products are pasteurized, homogenized, mixed, condensed, or bottled, or otherwise prepared for sale to the consumer within the City of Hope shall pay to the City Collector each month on or before the 10th day of each month for the preceding calendar month an inspection fee of one and one-third cents on each one hundred pounds of milk and/or milk products received and/or distributed, or sold or otherwise disposed of, except in the ease of sweet cream. J >
On September 7, 1949, appellant again applied for a permit which was refused and the instant suit was filed challenging the validity of certain provisions of Ordinance 644 and praying a mandatory injunction requiring the proper authorities to issue a permit to appellant.
The answer of the city admitted most of the facts alleged in the complaint, but denied the invalidity of the ordinance as applied to appellant or anyone else. In response to the prayer of the complaint the chancellor ordered the issuance of a temporary permit to appellant pending a final hearing.
After the hearing the chancellor filed a written opinion directing the entry of a decree holding Ordinance No. 644 valid and dismissing appellant’s complaint for want of equity. The decree contains the following recitals: ‘ ‘ The Court further finds that, under the terms of the said Ordinance No. 644 the milk inspector of the City of Hope, Arkansas, 'is authorized to inspect the production of any milk offered for sale in the City of Hope, Arkansas; that is, to inspect the dairy herds, dairy barns and equipment and make the bacteria count, and that for such inspection the said ordinance provides a tax of two-thirds cent per hundred weight; that said milk inspector of the City of Hope, Arkansas, is, also, authorized to inspect the entire output of the pasteurizing plant where any milk is pasteurized and any part thereof offered for sale in the. City of Hope, and that for said services the City of Hope is entitled to collect a tax of one and one-third cents per hundred weight on the entire production of said pasteurizing plant.
“That any fees collected from the plaintiff which prove to be in excess of the necessary expenditures by the city for the actual inspection of plaintiff’s milk, and/or the source of Ms supply, must be refunded to the plaintiff by the City at the end of the year.
“That the evidence in this case shows that plaintiff’s products presently meet all the requirements of the ordinances of the City of Hope, Arkansas, and, under such prima facie showing, the plaintiff is entitled to' a continuation of his permit to sell milk in the City of Hope, Arkansas, as long as his product meets the requirements of Ordinance No. 537 of the ordinances of the City of Hope, Arkansas, and as long as he pays the fees called for by Ordinance No. 644, in accordance with this decree.”
The evidence offered by appellant at the final hearing discloses the following undisputed facts: The Borden Milk Company, which is the sole source of the milk supply sold and distributed by appellant, is located at Texarkana, Texas. Appellant procures milk at wholesale prices from the Borden plant and transports it about 30 miles to Hope, Arkansas, in a refrigerated truck. The millcshed of the Borden plant includes 63 dairies and farms located in Miller County, Arkansas, and Bowie County, Texas. The Borden milk plant and the producing dairies from which it-processes its raw milk for pasteurization and bottling are equipped, and the milk handled and processed, under supervision of the City Milk Inspector of Texarkana, Texas, and the state health departments of both Texas and Arkansas. Both the City of Texarkana, Texas, and Texarkana, Arkansas, have adopted the U. S. Public Health Service Milk Ordinance under which the City of Hope operates. The Borden plant and its milkshed are duly inspected in accordance with the provision of the standard milk ordinance. Milk products pasteurized at the Borden plant are sold and ■ distributed in many other cities in both Texas and Arkansas.
The rating of raw milk sold to plants in Texarkana, Texas, under the standard ordinance has for a long time been in excess of 90% and the city was recently awarded a Standard Milk Ordinance Honor Boll Certificate which is only made to cities having a superior rating on both raw and pasteurized milk and milk products.
The Borden plant pays fees of approximately $300 annually to support the inspection work carried out by the Texarkana authorities in compliance with the terms of the standard ordinance. Appellant sells the products in the original sealed bottles and cartons in which they are placed by the Borden plant. The Borden plant processes more than 12 million pounds of milk annually. Under §§ 5 and 6 of Ordinance No. 644, appellant would be required to pay to the City of Hope approximately $2,500 annually in inspection fees in duplication of inspection services already performed by Texarkana authorities under the uniform ordinance. Such schedule of fees would be prohibitive as applied to appellant and the payment thereof would force him out of business.
Dr. Hubert Shull has been City Milk Inspector for both Texarkana, Arkansas, and Texarkana, Texas, for the past 24 years. He testified in detail as to the manner of inspecting, grading and rating of the respective dairies and plants in the Texarkana inspection area which is carried on in accordance with the forms and practices set up by the standard ordinance. The inspection process employed has been checked and approved by both the U. S. Public Health Department and the Arkansas State Health Department. It would require an outside inspector several months to make the inspections and do the work of Dr. Shull and his assistants, while it would only require several hours to determine from the records kept by the inspector and a limited examination of the plants and dairies to determine whether the requirements of the standard ordinance are being met.
The learned chancellor held Ordinance No. 644 and the inspection fees provided therein valid as applied to appellant on the authority of Terry Dairy Products Co. v. Beard, City Collector, 214 Ark. 440, 216 S. W. 2d 860. In seeking a reversal, appellant does not contend that the ordinance is void in toto and readily concedes its validity under our holding in that case, as applied to producers and processing plants located within the primary inspec- lion limits of the City of Hope. However, it is earnestly insisted that under the undisputed facts in the instant case the ordinance is invalid as applied to appellant because it requires him to bear the expense of a duplicate inspection before he is allowed to sell milk in the City of Hope; that as applied to appellant, the fees provided are excessive and unauthorized under § 19-3401, supra, and the standard ordinance enacted pursuant thereto; and that the Hope Milk Inspector’s demand of payment of said fees as a prerequisite to the issuance of a permit to appellant is arbitrary, unreasonable and unauthorized under the circumstances presented here. We conclude that appellant’s contentions should be sustained.
A municipal corporation has no powers except those expressly conferred by the legislature or those necessarily implied as incident to or essential for the attainment of the purposes expressly declared. Bennett v. City of Hope, 204 Ark. 147, 161 S. W. 2d 186. It is also well settled that city councils may not exceed the power given to them by the legislature and must stay within the delegated authority which must he exercised reasonably and without arbitrary restrictions. Helena v. Dwyer, 64 Ark. 424, 42 S. W. 1071, 39 L. R. A. 266, 62 Am. St. Rep. 206; Phillips v. City of Siloam Springs, 182 Ark. 139, 30 S. W. 2d 220.
The following rule is stated in 62 C. J. S. Municipal Corporations, § 429, p. 826: “The fact that a portion of an ordinance or regulation is void because it is unreasonable does not invalidate the whole ordinance, where such portion is distinctly separable from the remainder which in itself contains the essentials of a complete ordinance. The ordinance should not be set aside in toto, but should be permitted to stand, to the end that it may be enforced except in particular cases, where it may be made to appear that the circumstances rendered the operation of its provisions unreasonable.”
In Meridian v. Sippy, 54 Cal. App. 2d 214, 128 Pac. 2d 884, it was held that a city ordinance providing that no permit should be issued to sell milk in a city unless the dairy is inspected by the city health officer was in conflict with, the state statute giving the director of agriculture the right to designate the county or city which should conduct the inspection. In holding that it was unreasonable to require double inspection of the distributors by the city and state, the court said: “Any ordinance or statute which prevents any person from engaging in a lawful business cannot be upheld unless protection of life, health or property makes it reasonably necessary. Such is not the case here. The contention of respondent if approved might result in the erection of trade barriers that would affect the economic prosperity of the whole state.” See, also, La Franchi v. City of Santa Rosa, 8 Cal. 2d 331, 65 Pac. 2d 1301, 110 A. L. R. 639.
In Terry Dairy Products Co. v. Beard, supra, milk distributors in the City of Little Rock contested the amount and method of collection of inspection fees from them under an ordinance fixing a schedule of fees in the same amount as those involved in Ordinance 644. We held that such fees were not excessive as applied to said distributors. While that case also involved inspections made outside of the state, it did not involve duplicate inspections by out of state authorities or the validity of inspection fees as applied to out of state plants such as are involved here. There the Little Rock authorities had the primary responsibility of out of state inspections and there was no duplication of this service.
The police power which the legislature may delegate to municipalities is very broad and can be exercised to promote the public health, safety and welfare. In the case at bar we are dealing with a specific delegation of municipal authority in the regulation of the production and sale of milk and milk products. By §§ 19-3401 and 19-3402, supra, the legislature authorized municipalities to enact a specific ordinance which contains comprehensive regulations covering all phases of production, processing and distribution of milk which the lawmakers deemed adequate to properly protect the public health and safety. Section 12 of the 1939 standard ordinance provides that the City Milk Inspector shall satisfy himself that the health officer having jurisdiction over the production and processing of milk products from points beyond the regular inspection limits of the city is enforcing the provisions of the standard ordinance before such products may be sold in the city. Thus the inspector may bar the sale of milk products from points outside the Hope inspection area that are not handled under the same or equivalent inspection provisions as provided in the standard ordinance. Under the undisputed facts here the milk sold by appellant is produced and processed under grading provisions identical with those required by the ordinance which Hope was authorized to, and did, enact. It is also undisputed that the City Milk Inspector of Hope can reasonably satisfy himself that the health officer of Texarkana, Texas, is enforcing the provisions of the standard ordinance without duplicating the inspection work of the Texarkana officer • and his assistants. Under these circumstances, we hold it is unreasonable, arbitrary and beyond the power specifically delegated to the City for the Hope Milk Inspector to insist on such duplicate inspection and require appellant to pay the fees provided therefor in Ordinance 644 before he is entitled to a permit to sell milk in the city. As thus applied to appellant, Ordinance No. 644 is invalid.
In authorizing municipalities to enact the standard milk ordinance the Legislature sought to insure the purity of the milk supplied to a city’s inhabitants. As evidenced by § 12 of the 1939 ordinance, it was also the legislative purpose to provide for the free flow of wholesome milk products from one community to another unburdened by unnecessary duplication of adequate inspection and the erection of prohibitive trade barriers. As applied to appellant, the fees provided in Ordinance 644 bear no reasonable relation to enforcement of the requirement that the city inspector of Hope satisfy himself that the health officer of Texarkana is enforcing the inspection provisions of the standard ordinance. If the City of Hope can impose the fees set out in Ordinance 644 and require a duplicate inspection of the Borden plant and milkshed, then every other city where products of the Borden plant are sold could repeat the process. One of the purposes of the standard milk ordinance is to restrict the erection of prohibitive trade harriers that would result from stich pyramiding of inspection fees and services.
A state cannot grant greater powers than it possesses to a municipal corporation. Helena v. Dwyer, supra. One of the objections urged against Ordinance 644 as applied to appellant is that it places a burden on interstate commerce which is unnecessary to the public health and welfare of the people of the City of Hope. State inspection laws similar in effect to the ordinance in question have been held unconstitutional by the IT. S. Supreme Court. The case of Brimmer v. Rebman, 138 U. S. 78, 11 S. Ct. 213, 34 L. Ed. 862, involved a Virginia statute which made it unlawful to sell any meat slaughtered more than 100 miles from the place where it was to be sold unless inspected by local inspectors at a fee of 1 cent per pound. In holding the act void the court said: “Undoubtedly, a State may establish regulations for the protection of its people against the sale of unwholesome meats, provided such regulations do not conflict with the powers conferred by the Constitution upon Congress, or infringe rights granted or secured by that instrument. But it may not, under the guise of exerting its police powers, or of enacting inspection laws, make discriminations against the products and industries of some of the States in favor of the products and industries of its own or of other States. The owner of the meats here in question, although they were from animals slaughtered in Illinois, had the right, under the Constitution, to compete in the markets of Virginia upon terms of equality with the owners of like meats, from animals slaughtered in Virginia or elsewhere within one hundred miles from the place of sale. Any local regulation which, in terms or by its necessary operation, denies this equality in the markets of a State is, when applied to the people and products or industries of other States, a direct burden upon commerce among the States, and, therefore, void. Welton v. Missouri, 91 U. S. 275, 281, 23 L. Ed. 347: Railroad Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527; Minnesota v. Barber, 136 U. S. 313, 10 S. Ct. 862, 34 L. Ed. 455, above cited.”
A headnote to the case of Standard Oil Co. v. Graves, 249 U. S. 389, 39 S. Ct. 320, 63 L. Ed. 662, reads: “A law of the State of "Washington requires that products of petroleum, intended for use or consumption in the State, shall be inspected before being sold or offered for sale, and imposes fees for inspection by which in 10 years over $335,000 was collected, of which only about $80,000 was disbursed for expenses, leaving a revenue of over $255,000. Held, in respect of such products imported from another State for sale in Washington, that the charge is excessive and an unconstitutional burden on interstate commerce. ’ ’
It is undisputed that if appellant is required to pay the fees for duplication of the work of the Texarkana authorities he would be driven out of business. While § 8 of Ordinance 644 provides that excess fees shall be returned at the end of the year “upon approval by the Council,” we hold that the City of Hope is unauthorized under our statute and the standard ordinance to require the payment of such fees where it is undisputed that the Texarkana authorities are enforcing the provisions of the standard ordinance. We do not hold that the City of Hope is precluded from assessing such fees as may be necessary and reasonable for the Hope Milk Inspector to satisfy himself that the Texarkana health officer is properly enforcing the provisions of the standard ordinance as provided by § 12 of Ordinance 537. Nor do we hold that the city may not impose reasonable fees for inspection of milk brought into the city to determine whether it is wholesome and being transported under refrigeration requirements of the standard ordinance. What we do hold is that the fees fixed in Ordinance 644 based on a duplication of inspection of the Borden milk-shed and plant are excessive, unreasonable, an unnecessary burden on interstate commerce and unauthorized by Act 131 of 1939 as applied to appellant.
The decree is accordingly reversed and the cause remanded with directions that a mandatory injunction issue requiring the issuance of a proper permit to appellant so long as he complies with Ordinance No. 537 of the City of Hope, the regulations of the State Health Department, and the payment of such reasonable inspection fees as may be fixed by the City of Hope in the proper enforcement of the standard ordinance.
GrifeiN Smith, C. J. and MoFaddiN, J., not participating.
The 1939 standard ordinance as amended to Dec. 3, 1942, appears in the digester’s notes to § 19-3402, supra. Sec. 11 of the amended ordinance corresponds to § 12 of the 1939 ordinance and reads: “Milk and milk products from points beyond the limits of routine inspection.— Milk and milk products from points beyond the limits of routine inspection of the city of... may not be sold in the city of ----, or its police jurisdiction, unless produced and/or pasteurized under provisions equivalent to the requirements of this ordinance: Provided, That the health officer shall satisfy himself that the health officer having jurisdiction over the production and processing is properly enforcing such provisions.” | [
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Frank Holt, Justice.
The appellants, Florence Eu-banks, individually and as guardian of the person of James Huey. Eubanks, and the First National Bank, as guardian of his estate, appeal from an adverse holding in a tax redemption suit initiated by them. The issue on appeal appears limited to whether three distinct disabilities can be connected (tacked) so that the guardian of the incompetent can redeem land, once held in a co-tenancy (with the personal guardian) by the incompetent, some 25 years after a tax forfeiture sale.
In 1945 Mrs. Eubanks purchased a 40 acre tract of land in her name and another 40 acre tract in the joint names of herself and her two-year-old. son, James. James entered the army at the age of 17 in 1960. He remained in the army until discharged in May, 1968, as a result of injuries received in Viet Nam which rendered him permanently mentally incompetent. As we understand appellants’ argument on appeal, it appears to be limited to the right of redemption as to the 40 acre tract held jointly by her and her son'. She had sought recovéry of the 40 acre tract owned by her individually.
The land in question had been forfeited for failure to pay taxes. Fred J. Zimmerman, now deceased, bought both tracts of land at a. tax sale in 1948, took possession, and received a deed on the lands from the state in 1952. He continued to live there, approximately 21 years or until his death in 1969. As a defense to appellants’ tax redemption action, the appellees asserted adverse possession and payment of taxes under color of title.
On'March 10, 1972, the appellants brought this tax redemption action. Appellants contend that the applicable statutes of limitations were tolled against James, Mrs. Eubanks’ son and co-tenant; i.e. either the three year statute of limitations under Ark. Stat. Ann. § 37-101 (1962 Repl.) (the adverse possession statute), or a two year period for bringing suit under Ark. Stat. Ann. § 84-1201 (1960 Repl.) (the tax redemption statute). Their theory rests upon connecting (tacking) three unrelated disabilities: minority, the Soldiers and Sailors Relief Act, 50 U.-S.C. § 525, and mental incompetency. The chancellor rejected this theory and we agree.
We have held that one co-tenant can redeem for both wheh land has been forfeited for non-payment of taxes. Smith v. Pettus, 205 Ark. 442, 169 S.W. 2d 586 (1948). However, in the past this court has shown no favor towards the tacking of, disabilities. The rationale is that tacking distinct disabilities keeps title uncertain for too great a length of time and defeats the purpose of the statutes of limitations. The law favors early vesting of a title. In Reed v. Money, 115 Ark. 1, 170 S.W. 478 (1914), the court refused to allow a woman to tack the disabilities of non-age and coverture against an adverse possessor. In Carter v. Cantrell, 16 Ark. 154 (1855), the court refused to tack infancy and coverture, holding that no disability can be utilized unless in existence at the time the cause of action accrued. The rule is longstanding and the policy reasons remain sound.
In the instant case the cause of action in question arose during James’ disability of minority. However, when James attained the age of majority, or the removal of his minority disábility, he was in the army and under the shelter .of the Soldiers and Sailors Relief Act, which tolls a statute of limitations for a cause of action during the period of military service. Even though our cases do not permit tacking, of course, our statutes of limitations cannot run counter to the federal legislation. However, the shelter of the Soldiers and Sailors Relief Act is removed upon the discharge from military service. Diamond v. U.S., 344 F. 2d 703 (1965).
In the case at bar, inasmuch as tacking is not permissible, upon- James’ discharge in 1968, the statutory period began to run even though he was under a new disability of mental incompetency. This cause of action was not brought until three years and ten months after his discharge. The statutory period had then expired under either the tax redemption statute, § 84-1201, or the adverse possession statute, § 37-101 (which we note expressly prohibits cumulative disabilities).
Affirmed. | [
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Richard B. Adkisson, Chief Justice.
The Independence County Chancery Court: granted the request of Cord-Charlotte School District for injunctive relief, holding that both the sending and receiving district must approve of student transfers, regardless of claim for state aid, from which Newark School District appeals; denied Cord-Charlotte’s request for damages, holding that the remedy in this state for the correction of improper student attendance is by injunctive relief only, from which Cord-Charlotte cross appeals. We affirm on direct and cross appeal.
The dispute between the two adjoining districts began in 1979 when Newark allowed students residing in Cord-Charlotte to attend its school. Cord-Charlotte filed suit in chancery for injunctive relief and damages. Before the chancery court could decide the case, the Independence County Board of Education and Newark approved the transfer of the students. The chancery court then held the action of the school board constituted a legal transfer and could only be challenged by appeal to circuit court, but reserved a ruling on the issue of damages. The circuit court likewise approved the legality of the transfer, which was appealed to this court. We reversed, holding that in the case of adjoining districts both the receiving district, Newark, and the sending district, Cord-Charlotte, must approve the transfer. Cord-Charlotte Sch. Dist. No. 8 v. Independence Co. Educ. Bd., 271 Ark. 217, 608 S.W.2d 12 (1980).
While the case was pending on appeal to this court, Cord-Charlotte and Newark were able to reach an agreement whereby both districts consented to the students attending Newark for the 1980-81 school years. Efforts to renew this agreement for the 1981-82 school year failed; nevertheless, Newark again accepted students from Cord-Charlotte for the 1981-82 school year.
Thereupon, Cord-Charlotte filed suit in chancery court requesting Newark be enjoined from accepting the students. Cord-Charlotte also asked for damages for the 1981-82 school year and asked the court to revive the 1979 action in which it reserved ruling on damages for the 1979-80 school year.
Ark. Stat. Ann. § 80-1501 (Supp. 1981) sets out the place of enrollment for children attending public school:
The public schools of any school district in this State shall be open and free through completion of the secondary program, to all persons between the ages of six (6) and twenty-one (21) years who are domiciled in the district or, in the case of minors, whose parents or legal guardians are domiciled in the district, or to all persons between these ages who have been legally transferred to the district for education purposes.
Ark. Stat. Ann. § 80-1528 (Supp. 1981) allows children to transfer from one school district to another school district if the board of directors of both districts agree:
Upon the petition of any person residing in any particular school district (resident district), to transfer the children or wards of such person to another school district (receiving district), the Board of Directors of the resident district may enter into an agreement with the Board of Directors of another school district transferring the children to the receiving district for purposes of education. . . . After the petition has been approved by the Board of Directors of the resident district and the Board of Directors of the receiving district, copies of such written consent shall be filed in the office of the County Clerk, with the person filing the petition and in the administrative office of the respective school districts. This legal transfer of children from one school district to another places the responsibility for the education of the children on the receiving district and permits the receiving district to count these children in average daily membership for state aid purposes. . . .
Newark argues, however, that as long as it does not claim state aid money, it can accept students from Cord-Charlotte even though there is no “mutual agreement” between the two districts. In making this argument Newark attempts to distinguish between a “legal transfer,” where the receiving district claims state aid money, and a mere “transfer” of students where, as here, the receiving district makes no claim to state money. Under Newarks’ theory, the rule of Cord-Charlotte, supra, which is that both districts must consent to a transfer, applies only when state aid is claimed. However, these contentions ignore the fact that without a legal transfer neither Cord-Charlotte nor Newark can claim state funds for the students. As this court noted in Cord-Charlotte, supra, a mass transfer from one district to another “would have a ruinous effect upon the district’s finances and, thus, adversely affect the quality of the educational program for the balance of the students in the district.” Not only does an economic loss occur to Cord-Charlotte due to the reduction in the number of their students, but also no economic gain occurs to Newark since it receives no state money for these students. In fact, Newark will expend funds to educate the Cord-Charlotte students; funds which would otherwise presumably be spent on Newark students. Therefore, we adhere to our rule that there must be a legal transfer of students, whereby both districts consent to the transfer, even if the receiving district is not attempting to claim state money. For these reasons, the trial court’s decision to enjoin Newark from accepting the students is affirmed. See Bell v. Howard County Training Sch., 236 Ark. 742, 368 S.W.2d 266 (1963) and Gillham Sch. Dist. No. 47 v. Millard, 203 Ark. 1121, 160 S.W.2d 215 (1942), where this court either upheld or directed that the nonresident students be enjoined from attending a certain school district.
Cord-Charlotte argues on cross appeal that the trial court erred in failing to award them $16,000 in damages against Newark arising from the misapplication of state funds for the 1979-80 school year. Cord-Charlotte also claims damages against Newark for a sum representing the amount which they would have received from the state had the students attended Cord-Charlotte. Damages, in either situation, are inappropriate as reflected by our cases which state:
This court is committed to the doctrine that school taxes erroneously levied and distributed, pursuant to the levy, to a school district and consumed in educational purposes, cannot be recovered by the school district rightfully entitled thereto. The district to which the taxes rightfully belonged should have proceeded by injunction or other proper remedy to prevent the wrongful assessment, levy and distribution of taxes, or else have brought suit for the recovery of such taxes before they were expended for educational purposes by the district wrongfully receiving them.
McCrory Special Sch. Dist. v. Rural Special Sch. Dist. No. 22, 181 Ark. 345, 26 S.W.2d 570 (1930); Lepanto Sch. Dist. v. Marked Tree Sch. Dist., 173 Ark. 82, 291 S.W. 1006 (1927). Here, the trial court found that Newark had actually expended the monies received from the state for the education of the Cord-Charlotte students for the 1979-80 school year. Also, Cord-Charlotte has not joined in this action the agency disbursing the funds. The proper remedy by one school district against another for illegal student enrollment is by injunction, not by a suit for damages.
Affirmed.
Hickman, J., dissents. | [
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Hart, C. J.,
(after stating the facts). It is well settled in this 'State that contracts in partial restraint of trade with reference to a particular business, where ancillary to its sale and the good will thereof, are valid and enforceable to the extent reasonably necessary for the protection of the purchaser. Such contracts are intended to secure to the purchaser the good will of the business; and, as a guaranty, the vendor agrees not to engage in like business at that place. The courts recognize that in such cases the vendor has received an equivalent to abstain from business at the place where it was formerly conducted. Webster v. Williams, 62 Ark. 101, 34 S. W. 537 ; Shapard v. Lesser, 127 Ark. 590, 193 S. W. 362, 3 A. L. R. 247, and cases cited; and Culp Bros. Piano Co. v. Moore, 162 Ark. 292, 258 S. W. 326.
Counsel for appellant insist that the court erred in refusing to allow parol evidence to the effect that the $1,000 in cash and the assumption of debts in the sum of $1,452.53 by the purchaser was the sole consideration for the contract, and the agreement not to re-engage in the restaurant business in the city of Blytheville on the part of the seller was an after thought, and that there was no consideration upon which to base it. Counsel, in making this contention, rely upon the case of Kimbro v. Wells, 112 Ark. 126, 165 S. W. 645. We do not think that case has any application whatever. There, the second contract, according to the testimony of the defendant, was executed some time after the first instrument was executed, and, although it referred to the first instrument, it was not a part of it. Because the contracts were executed at different times, and, according to the testimony of one of the parties, were separate instruments, each complete in itself, the court admitted parol evidence to show the intention of the parties in executing them. In the case at bar there is only one contract, and its terms are plain and unambiguous. The case calls for the application of the well-known rule that parol, contemporaneous evidence is inadmissible to contradict, vary, or add to the terms of a valid and unambiguous written contract. Ogletree v. Smith, 176 Ark. 597, 3 S. W. (2d) 683, and cases cited. The offered evidence in the present case would necessarily tend to vary the terms of the contract as written.
Again, counsel for appellant insist that the case falls within the rule announced in McRae v. Farquhar & Albright Co., 168 Ark. 39, 269 S. W. 375, where it was held that when a contract is actually entered into between the parties with the intention to become bound thereby, it is consummated within the meaning of the law, although it .was agreed that the terms of th'e contract should be reduced to writing. This case would apply if the parties had rested after their preliminary negotiations and had not had the contract reduced to writing. When the contract was reduced to writing,'it became the agreement between the parties, and the clause which provided that the seller should not re-enter the restaurant business in the city of Blytheville was just as much a part of the written contract as any other provision in it, and was just as binding upon the parties as the other provisions of the contract. Otherwise, no useful purpose would have been served by the parties in having their contract reduced to writing. The object of reducing the contract to writing was to have a plain statement of the contract which could not be contradicted by parol evidence of matters leading up to the mailing and execution of the contract. Parties would be afraid to enter into negotiations with each other if these matters could be proved by parol evidence and contradict the terms of a written contract relating to the subject-matter of their negotiations which they finally executed.
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Tom Glaze, Justice.
Appellee is charged with one count of felony possession of a controlled substance (cocaine) and two misdemeanor counts of possession of a controlled substance (marijuana and valium)..The contraband involved was seized by three police officers when they executed several outstanding felony warrants on appellee at his apartment. At trial, appellee moved to suppress the evidence, and the trial court granted the motion finding that the officer, who actually discovered the evidence, was impermissibly in appellee’s apartment when the marijuana and cocaine were found. Pursuant to A.R.Cr.P. Rule 36.10(a)(1), the state brings this interlocutory appeal to challenge the trial court’s order granting appellee’s motion. We reverse the trial court’s ruling concerning the cocaine and marijuana but uphold its decision to suppress the valium.
On the evening of September 3, 1987, the three police officers went to arrest appellee at his apartment. Two officers, Hutson and Siegler, appeared at the front door, and Officer King went to the rear of the apartment to secure its back door. The two officers knocked at the front door, and appellee opened it. After the officers identified themselves and told appellee that he was wanted by the El Dorado Police Department, appellee invited the officers into the foyer of the apartment and explained to them that police departments sometimes get him and his cousin mixed up. Because the foyer area was small, the two officers and the appellee stepped into the living room area to further discuss and effect the appellee’s arrest. In addition, the appellee had apparently asked to put on his shoes, which were located in the living room. Officer King was on the patio immediately outside the sliding door of the living room, so when the officers entered the room, they were able to allow King to enter. Apparently from his position outside the patio door, Officer King observed an ash tray containing a hemostat holding a cigarette. After entering the living room, King went over to the hemostat and cigarette on top of a coffee table, and at that time, he saw a glass tray with a straw and razorblade protruding from under a couch. When he pulled the tray all the way out, King saw that it had white powder residue, which was confirmed to be cocaine. On the same tray, King also found a “bunch of marijuana” and cigarette papers that were used to roll marijuana. One of the other officers subsequently discovered a curio box, which, when opened, was found to contain three valium pills.
Appellee argues the trial court was correct in suppressing the contraband found in the living room of his apartment because the officers’, especially King’s, intrusion into that room was not legally justified. We cannot agree.
Appellee in no way questions the validity of the felony warrants the officers executed on him. It is clear 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. Payton v. New York, 445 U.S. 573 (1980). In the present case, Officers Hutson, Siegler and King knew appellee was in his apartment, and in addition, appellee invited Hutson and Siegler into the apartment. The officers, once properly in appellee’s apartment to effect his arrest, could monitor appellee’s movements in order to ensure their safety — as well as the integrity of the arrest. Washington v. Chrisman, 455 U.S. 1 (1981).The Washington holding also established that the absence of an affirmative indication that an arrested person might have a weapon available or might attempt to escape does not diminish the arresting officer’s authority to maintain custody over the arrested person. Id. Also, important to resolving the seizure issue raised here, we note that the Washington decision provided that the “plain view” exception to the fourth amendment warrant requirement permits a law enforcement officer to seize what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be.
Appellee argues that, unlike Officers Hutson and Siegler, King was uninvited and impermissibly in the apartment when he discovered the cocaine and marijuana. Appellee’s argument totally ignores the fact that all three officers were at the appellee’s apartment to execute the outstanding arrest warrants and that King was only at the back door to ensure the appellee could not escape. King’s role in securing and entering the back door was a reasonable one, which was designed to ensure appellee’s arrest. As noted earlier, the back door, through which King entered, was off the living room, where the appellee and Officers Hutson and Siegler had gone to talk and to permit appellee to put on his shoes. Because we hold that King gained lawful access to appellee’s area of privacy, viz., his living room, we further conclude that the incriminating evidence which fell within the plain view of King permitted him to seize it. Here, King’s testimony clearly reflects that he recognized the hemostat, razorblade arid straw to be paraphernalia used in connection with the marijuana and cocaine which he found and properly seized. Accordingly, we hold the trial court erred in failing to admit the marijuana and cocaine into evidence.
We reach a different holding concerning the three valium pills contained in the small box found by Officer Siegler. The box was located on the coffee table where the hemostat was found, and Siegler had to open the box to discover the pills. Obviously, the pills were not in plain view, and the officers’ seizure of them must be premised on some other legal theory in order to permit the state to introduce them into evidence.
In Chimel v. California, 395 U.S. 752 (1969), the Supreme Court discussed the “search incident to arrest” principle and noted its proper extent as follows:
[W] hen an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area “within his immediate control” — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well recognized exceptions, may be made only under the authority of a search warrant. The “adherence to judicial processes” mandated by the Fourth Amendment requires no less. (Emphasis added.)
In view of the limits set forth in Chimel above, we are of the view that the record in the present case does not depict a situation that justified a contemporaneous search incident to a valid arrest so as to prevent the arrestee from destroying evidence or gaining possession of a weapon. In fact, there is little evidence in the record regarding the pill box in issue. Officer Siegler testified that he and Hutson were stationed near appellee who was seated by the television in the living room, and the contraband was “over on the coffee table and underneath the couch.” Siegler further said that he later discovered and opened the pill box, which was on the coffee table, sometime after King located the other contraband. While there was other limited testimony concerning the pill box, none of it can be read to justify the officers’ warrantless search under the rationale set forth in Chimel. See also New York v. Belton, 453 U.S. 454 (1981). Because the record fails to show the pill box was within the appellee’s immediate control, we uphold the trial court’s ruling to suppress the valium pills that were discovered in the container or box opened and seized by Officer Siegler.
For the reasons stated above, we reverse and remand in part and affirm in part the trial court’s holding.
Hickman, J., dissents in part, would also overrule the trial court’s suppression of the valium pills. | [
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Holt, J.
Appellee, Signa Powell, began this suit in August, 1949. She alleged that she acquired title in September, 1937, to a 40-acre tract of land in Woodruff County, as follows: “The southwest quarter of the southwest quarter (SW]4 of SW%) of section thirty-six (36), township five (5) north, range three (3) west.”
“That she immediately thereafter went into possession of said above described land up to an old fence row on the east boundary line thereof which was the division line between the property herein described” and an 80-acre tract owned by the McGowan Estate hereinafter described; “that she has been in actual, open, adverse and continuous possession of said above described land that was conveyed to her, up to the said old fence row, since 1937 or more than ten years;” that her husband George W. Powell, purchased the 80-acre tract, above, from the McGowan estate in March, 1945, under the following description: “The east (%) of the southwest quarter (SWi/4) of section thirty-six (36), township five (5) north, range three (3) west of the fifth principal meridian, containing eighty (80) acres, less Missouri and North Arkansas Railroad, right-of-way and Arkansas Highway right-of-way. ’ ’
That her husband “George W. Powell on the 20th ' day of April, 1945, sold to the defendant herein, J. B. Brady, said lands and conveyed title thereto by executing and delivering a warranty deed with relinquishment of dower. This plaintiff states that she executed said deed and signed her name thereto acknowledging' her relinquishment of dower and homestead and that she otherwise had no interest in said property nor received any of the benefits therefrom; that the scrivener inadvertently drew the deed and placed ‘we’ where it should' have been ‘I,’ relative to warranty, which was a mutual mistake, and the defendant.herein, knew that said land was owned by Geo. W. Powell.”
In this deed from George Powell to appellant, Brady, the same description was used as in the above deed from the McGowan Estate to George Powell.
She asked that appellant be enjoined from proceeding with the building of said fence; “that the deed from George W. Powell to J. B. Brady be reformed so that this plaintiff be in no wise obligated as guarantor of title or otherwise, except as releasing dower and homestead, therein; that title to said land up to the old fence be quieted and confirmed in this plaintiff.”
Appellant answered with a general denial and alleged that he was entitled, under his deed from George Powell, to the full 80-acre tract, that his title be quieted in the 3.3 acres in dispute, and claimed by Signa Powell; or in the alternative that the purchase price of $3,750, which he paid for the 80-acre tract, be abated to the extent of the 3.3-acre deficiency.
The trial court found “that plaintiff is the owner of, and she and those under whom she claims have adversely and continuously held for more than seven years, the southwest quarter of the southwest quarter (SW/! SWi/4) of section thirty-six (36), township five (5) north, range three (3) west, and up to the old fence row on the efust boundary thereof which is tlie division line between lier land hereinabove described and the east half (E)4) of the southwest quarter (SW%.) of section thirty-six (36), township five (5) north, range three (3) west, all lying in Woodruff County, Arkansas, and title to said first above described tract of land should be quieted and confirmed in said plaintiff, Signa Powell, and the temporary restraining order heretofore made on September 7, 1949, should become perpetual.
“It is further found by the court, that a mutual mistake was made in the Warranty Deed with Relinquishment of Dower, executed by Geo. W. Powell and Signa Powell to J. B. Brady, and appearing of record in the office of the clerk and recorder of deeds for Woodruff County, Arkansas, in Deed Record Book QQ at page 67 thereof, and same should have conveyed only that part of the east half (E%) of the southwest quarter (SW)4) of section thirty-six (36), township five (5) north, range three (3) west lying east of the old fence row hereinabove described and set out,” and should be reformed accordingly.
It further found that appellee, .George Powell, had breached no covenant of warranty in his deed to Brady, that appellant was entitled to no relief, and entered a decree accordingly.
This appeal followed.
The preponderance of the evidence was to the effect that appellee, Signa Powell, acquired the 40-acre tract in question in 1937, as above indicated, and had claimed and occupied adversely up to the fence line dividing her land from the 80-acre tract claimed by appellant and that this established fence up to which she claimed had been in existence, and the divisiondine, many years prior to 1937.
Without detailing the testimony, we hold that the preponderance thereof supports the Chancellor’s finding and decree awarding Signa Powell the 40-acre tract and additional land up to the old fence row and division line, which represents the 3.3 acres (in question) by adverse possession for more than 7 years, and quieted her title thereto.
The evidence shows that Signa Powell owned in her own right the land awarded her in the above decree and that her husband owned in his own right the tract described as 80 acres, conveyed to him by the McGowan Estate, and which he later conveyed to appellant, Brady. Signa Powell had no interest in this 80-acre tract except dower. That appellant knew this is clearly demonstrated by his own testimony: “Did you know Mrs. Powell owned that land immediately adjoining that on the highway? A. West of it, yes. Q. Did you consider you were buying any land from Mrs. Powell?- A. Only her right of dower and homestead to the same eighty acres that he acquired from the McGowan Estate. That is all I am contending for. Q. You were buying and understood you were buying the same land from Powell that he bought from McGowan? A. Yes. Q. At that time a survey had not been made? A. That is right; the deed called for eighty acres and her signature on it for the right of dower and homestead which Mrs. Brady always does sign. Q. When you hailed Mr. Powell in the street and mentioned buying the land, was any amount of land mentioned? A. Ño, it was to be the same land he had bought from the McGowans.”
In the circumstances, we hold'that the court correctly held that there was a mutual mistake in the execution of this deed from Powell to appellant and decreed that it be reformed in accordance with Signa Powell’s allegation in her complaint above.
We have reached the conclusion that appellant’s alternative prayer, that he be allowed an abatement in the purchase price of the, 80-acre tract, must be. sustained.
Appellant’s deed from George Powell called for 80 acres without any qualifications such as “more or less,” or any qualification whatever. We have here a sale by the acre and appellant was entitled to the full acreage called for in his deed which was of the essence of the con tract. It is undisputed tlmt tlie tract was short the 3.3 acres which we have indicated were acquired by Signa Powell by adverse possession.
In Glover v. Bullard, 170 Ark. 58, 278 S. W. 645, this court thus announced the rule: ‘ ‘ The general rule on this question is clearly stated in Weart v. Rose, 16 N. J. Eq. 290. It is there said that the general rule as laid down by Chancellor Kent is that where it appears by definite boundaries, or by words of qualification, as ‘more or less,’ or as ‘containing by estimation,’ or the like, that the statement of the quantity of acres in the deed is a mere matter of description, and not of the essence of the contract, the buyer takes the risk of the quantity, if there be no intermixture of fraud in the case.
“On the other hand, where the sale is by the acre, and the statement of the quantity of acres is of the essence of the contract, the purchaser, in case of a deficiency, is entitled in equity to a corresponding deduction from the price,’’ and in Harrell v. Hill, 19 Ark. 102, it was held: (Fifth Headnote):
‘ ‘ The general rule is, that when a misrepresentation is made as to quantity, though innocently, the right of the purchaser is to have what the vendor can give with an abatement out of the purchase money for so much as the quantity falls short of the representation; and such abatement ought to be in proportion to the price given for the whole tract as represented, without regard to any other evidence of the value of the land.”
Accordingly, the decree in so far as it relates to ap-pellee, Signa Powell, is affirmed. As to the abatement of the purchase price, the decree i- reversed and the cause remanded with instructions to the Chancery Court to enter a decree in accordance with this opinion. | [
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Frank Holt Justice.
The appellee instituted this action seeking specific performance of a contract for conveyance of land. Incidental damages were also sought. In response the appellants asserted primarily that they were bona fide purchasers and raised other subsidiary issues. The chancellor found the issues for the appellee and from that decree comes this appeal. We first consider appellants’ contention for reversal that the chancellor erred in holding appellants had actual notice of appellee’s contract to purchase.
On May 19, 1971, after extended negotiations, appel-lee contracted to purchase 32 acres of land from appellants Ethyl Jennings and Vaden Wammack for the sum of $27,750. The appellee gave his personal check for $500 as earnest money and on that date the husband of appellant Jennings cashed it. Appellants Wyatt and Lamb, brothers-in-law, had also negotiated with the appellant owners to purchase their property. On May 20, 1971, early the morning following appellee’s purchase contract, appellant Wyatt appeared at the Jennings’ premises and renewed negotiatons for purchasing the property for $27,500. He was advised a “better offer” was made. During that day a partnership was agreed upon between appellants Wyatt and Lamb. That afternoon Wyatt returned with a notary and secured a warranty deed for the sum of $30,000 for the property from the appellants Jennings and Wammack without being advised of the previous contract with the appellee.
Appellant Lamb testified that his brother-in-law Wyatt, came to the store on May 20 (the day following appellee’s purchase contract) and told him “[0]ur offer [$27,500] has been upped on the Jennings property.” “If we are going to buy it, we are going to have to . . . be near $30,000. . .” According to appellant Lamb, they were aware that “a lot of people were dealing on it” and he “knew things were getting pretty hot. . He testified that he went to the Jennings’ premises on the morning following appellee’s purchase contract. Appellants Wyatt and Lamb testified that they did not know about the appellee’s contract and that the owners did not apprise them about it. Mrs. Wammack did not testify. Her sister, Mrs. Jennings, testified that they did not acquaint Wyatt and Lamb about signing appellee’s purchase contract the previous day. Appellants Wyatt and Lamb acknowledge they learned of the purchase contract before filing their deed.
The night of May 20 (date of appellant purchasers’ deed) the appellee took his contract of purchase to the home of the county recorder who accepted and recorded the instrument the next day or May 21. Appellee’s contract was improperly acknowledged and, therefore, defective for recordation purposes. Becaue of “town talk” appellants had someone inspect the county records on May 22 and learned of the existence of appellee’s purchase contract. Appellants Wyatt and Lamb’s deed was not recorded until May 24, 1971.
In consideration for the warranty deed issued to appellant purchasers, Wyatt tendered the following: a check in the amount of $9,500 payable to Ethyl Jennings dated May 20, 1971; a check in the amount of $10,000 by an agent of Lamb’s made payable to Wam-mack and dated May 20, 1971; and a $10,500 negotiable promissory note dated May 20, 1971, by both appellants made payable to Jennings and secured by a mortgage. At the time the checks were tendered, there were insufficient funds in both bank accounts to cover the checks. However, appellants made sufficient deposits in their accounts so that the checks were paid when presented a week later. The promissory note was not negotiated and was sequestered at trial.
Ark. Stat. Ann. § 49-211 (Repl. 1971) requires that an instrument in writing must be properly acknowledged for recordation purposes. It is undisputed that appellee’s contract was defective in this respect. Therefore, as the chancellor correcdy found, appellee’s pur chase contract did not constitute constructive notice to the appellant purchasers. Prince v. Alford, 173 Ark. 633, 293 S.W. 36 (1927). However, in the case at bar, the appellant purchasers had actual knowledge of the recordation of appellee’s purchase contract within two days following its execution and two days before they filed their own deed. We have held that knowledge of the recordation of a defective instrument is a factual matter which can be considered in determining whether a subsequent purchaser had actual notice. Prince v. Alford, supra.
Our cases are uniform in holding that if the second purchaser had actual knowledge of a prior deed or contract at the time of purchase, the junior conveyee cannot establish himself as a bona fide purchaser. Collins v. Heitman, 225 Ark. 666, 284 S.W. 2d 628 (1955), Henderson v. Ozan Lumber Co., 216 Ark. 39, 224 S.W. 2d 30 (1949), Millman Lumber Co. v. Bryant, 213 Ark. 277, 209 S.W. 2d 878 (1948), and Valley Planing Mill Co. v. Lena Lumber Co., 168 Ark. 1133, 272 S.W. 860 (1925).
In Woods v. Wright, 254 Ark. 297, 493 S.W. 2d 129 (1973), we held that the second purchaser will be deemed to have actual notice if the senior conveyee shows “by a preponderance of the evidence that [the second purchaser] had notice of such facts and circumstances as would put a man of ordinary intelligence and prudence on inquiry which, if diligently pursued, would lead to knowledge of his rights. #***Whatever is notice enough to excite attention, put a party on guard and call for inquiry is notice of everything to which the inquiry might lead, and whenever one has sufficient information to lead him to a fact he shall be deemed conversant with it.” Also see Kendall v. J. I. Porter Lumber Co., 69 Ark. 442, 64 S. W. 220 (1901). Proof of sufficient notice to place the junior conveyee on inquiry may be established by circumstantial evidence. Woods v. Wright, supra.
In the case at bar, when we consider the direct and circumstantial evidence, together with the appellants’ knowledge of the recordation of appellee’s de fective purchase contract, we hold that the chancellor correctly found the appellants had actual notice and, therefore, are not bona fide purchasers. Further, the chancellor correctly ordered appellee to reimburse the appellant Lamb for his $10,000 check which was paid to appellants Jennings and Wammack, the owners of the land; appellee pay appellant Wyatt and his wife the sum of $9,500 for reimbursement of their personal check which was paid to appellant landowners; $7,500 or the balance of appellee’s $27,750 purchase agreement be paid to appellant Jennings, less the $500 held in the court registery which was ordered returned to appellant Jennings; appellant purchasers’ $10,500 promissory note be cancelled; appellants Wyatt and Lamb execute a deed conveying the 32 acres to appellee and appellee have judgment against appellant Wyatt for damages resulting from cutting and removing hay from the 32 acres.
As to the latter item about damages, appellant Wyatt contends that it was error for the chancellor to hold him liable for $217.50 as a result of cutting and removing hay from the 32 acres. Appellant Wyatt is liable for anything of value which he removed from the property. Garner v. Horne, 219 Ark. 762, 245 S.W. 2d 229 (1952). In the case at bar, we cannot say that the chancellor’s finding is against the preponderance of the evidence that appellant Wyatt is liable by acquiescing in the cutting and removing of the hay from the property by his father.
We have considered and find no merit in appellants’ other subsidiary contentions. Since we hold that the appellant purchasers had actual notice of appellee’s contract to purchase the land, we deem, it unnecessary to discuss other related issues appellants assert for ie-versal.
Affirmed.
Byrd, J., not participating. | [
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Frank Holt, Justice.
This appeal comes from a ruling by the circuit court that there was substantial evidence to support the Alcoholic Beverage Control Board’s decision to suspend the appellant’s retail beer permit for 30 days and to impose a probationary period of 90 days following suspension. We affirm.
There was evidence that when a taxicab driver delivered his passenger to the “Playpen”, the premises of the appellant permitee, there was an unprovoked attack upon the cab driver. He was severely beaten by the manager, appellant’s husband, and another individual who was a part-time employee. The police were notified. The manager and the employee left the premises before the police arrived.
The Commission found that the appellant allowed the premises to become disorderly in violation of Ark. Stat. Ann. § 48-524 (b) (Repl. 1977). The appellant argues that this conduct constituted a violation of the Arkansas Criminal Code; and since the power to convict for crimes is not within the authority of the ABC Board, the Board may not suspend a permit for this conduct. For authority she cites State v. Lawrence, 246 Ark. 644, 439 S.W.2d 819 (1969). There, we held a circuit court in a criminal proceeding lacks authority to revoke a beer permit, but we did not hold the ABC Board may not revoke a beer permit for conduct that amounts of a criminal violation. The authority of the ABC Board to suspend a permit is found in Ark. Stat. Ann. §§ 48-1311 and 48-1312. Appellant admits that the state legislature has delegated the power to the Director of the ABC Board to suspend and revoke licenses granted to retailers for alcoholic beverages. Appellant also agrees that the ABC Board has the statutory right to hear appeals from the Director’s orders involving suspension or revocation of a license. § 41-1314. The grant of authority contained in these statutes clearly is broad. It would be illogical to hold that the ABC Board may revoke or suspend a beer permit for conduct that does not rise to the level of a criminal violation but may not revoke or suspend a permit for more serious conduct. That obviously was not what the legislature intended.
Affirmed. | [
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Humphreys, J.
Appellee brought suit in the circuit court of Craighead County, Lake City District, against appellant to recover damages in the sum of $3,000 for injuries received by him in a collision between appellant’s motor train and an automobile in which he was riding at the public crossing east of Monett in said county through the alleged negligence of appellant’s employees in approaching the crossing’ in'failing to keep a lookout and ring- the bell or blow the whistle.
Appellant filed an answer denying negligence on its part and pleading negligence on the part of appellee as the sole cause of the collision and consequent injury.
The cause was submitted upon the pleadings, the testimony and, instructions of the court resulting in a verdict and judgment against appellant for $2,000, from which is this appeal.
The collision occurred on September 25, 1929, at said crossing just as the automobile in which appellant was riding had almost crossed over the track. The train struck the rear wheels of the automobile and carried it about three hundred feet before coming to a stop, killing the driver and severely injured appellee.
The testimony introduced by appellee tended to show that as the automobile approached the crossing at a reasonable rate of speed the occupants looked and listened for the train, but failed to see it on account of growing-cotton and high weeds upon the right-of-way or to hear any warning because the employees failed to blow the whistle or ring the bell on the motor train for the crossing, and that it was possible for them to have observed the automobile in time to stop the train and avoid the collision, had they been keeping a constant lookout, owing- to the elevation of the track above the highway.
The testimony introduced by appellant tended to show that the statutory signals were given as the train approached the crossing, and that, although a constant lookout was kept, the automobile was not discovered in time to prevent the collision, notwithstanding the engineer immediately set the brakes in emergency.
Appellant’s first contention for a reversal of the judgment is that the court erred in giving instruction number 1, which is as follows:
“You are instructed, if you find from a preponderance of the evidence that the plaintiff was injured by the operation of any train being run on the tracks owned or controlled by the defendant, then you are told that this makes a prima- facie case of negligence against the defendant, and casts on the defendant the burden of proof to sjiow that the injury complained of was not the result of its negligence, and if you find from the proof in the case that this burden has been met, then it devolves upon the plaintiff to make out its case by a preponderance of the evidence showing- some negligence on the part of the defendant, and that the injury complained of was the direct and proximate result of said negligence. ’ ’
It is argued that the instruction should have told the jury to return a verdict for appellant if they found from the evidence that it was not guilty of negligence. This is, in effect, what the court told them in the instruction. We cannot agree with appellant that the form of the instruction was prejudicial, as it clearly stated the law. An instruction cannot be said to be prejudicial if it embodies the law applicable to the facts in a given case, even though it might have (been framed differently. The matter of form is really immaterial.
Appellant’s next contention for a reversal of the judgment is that the court erred in giving instruction number 2 upon the issue of contributory negligence. The instruction follows the statute which provides that one cannot recover for an injury inflicted throug’h the negligence of a railway company if his own negligence contributing thereto- was equal to or greater, than the negligence of the railway company; but that he might recover in proportion to the degree of negligence if his negligence was less than that of the railway company. The contention is therefore without merit.
Appellant’s next contention for a reversal of the judgment is that the court erred in giving instruction number 3 upon the lookout statute and the doctrine of discovered peril. The argument is made that the undisputed evidence showed that a constant lookout was kept, and that, after the presence of appellee was discovered on the track, the employees did all they could to prevent the collision. We cannot agree that the instruction was abstract and therefore improper. On the contrary, the testimony tends to show that, on account of the elevation of the track, appellant’s employees might, have discovered appellee in time to have prevented the collision, had they been keeping a constant lookout.
The next and last contention of appellant for a reversal of the judgment is that the court admitted evidence relative to the height of the weeds and cotton growing upon the right-of-way. The argument is made that the testimony was not responsive to the issues joined. We think the testimony admissible upon the issue of contributory negligence. If the weeds and growing cotton concealed the train from the view of the occupants of the automobile as they approached the crossing, certainly it was permissible to show the existence of such obstruction as tending- to prove that appellee did not drive upon the track in front of a moving- train that he could see by looking. The testimony tended to show that these obstructions prevented appellee from seeing the train as it approached the crossing.
No error appearing, the judgment is affirmed. | [
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Jack Holt, Jr., Chief Justice.
The appellant, Charles D. Ragland (Commissioner), challenges the trial court’s determination that the appellee, General Tire and Rubber Company, Inc. (General Tire), is exempt under Ark. Code Ann. § 26-52-401(12)(A) and (B) (Supp. 1987) from paying use tax on chemicals used in the manufacturing of tennis balls and rubber moldings. We hold that the trial court erred in its ruling. Therefore, we reverse the judgment entered in favor of General Tire and remand the case for further proceedings.
The Commissioner conducted a use tax audit of General Tire’s records for the audit periods of August 1, 1979, through June 30, 1982, and July 1, 1982, through June 30, 1984. Based upon purchases by General Tire of the chemical hexane, which it uses in the manufacturing of tennis balls; toluol, which it uses to make rubber moldings; and a compound referred to as “slab dip,” the Commissioner assessed additional tax, interest, and penalties in the amount of $32,695.63 for the first audit period and $23,563.13 for the second audit period. General Tire had treated these chemicals as exempt from the use tax.
In challenging this assessment, General Tire exhausted its administrative remedies as set forth in Ark. Code Ann. § 26-18-404 (1987). Unsuccessful at the administrative level, General Tire filed suit in chancery court. After considering the testimony, exhibits, stipulations, and briefs, the chancellor determined that General Tire’s purchases of hexane, toluol, and “slab dip” were exempt from the use tax and that General Tire had established its right to the exemption. The chancellor ordered that the tax, interest, and penalty assessments against General Tire be set aside. The Commissioner appeals only from the portion of the order setting aside the tax and interest assessments on General Tire’s purchases of hexane and toluol.
There is a presumption in favor of the taxing power of the State, and the claimant has the burden of establishing the right to an exemption beyond a reasonable doubt. Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W.2d 753 (1976). See also C.J.C. Corp. v. Cheney, Commissioner, 239 Ark. 541, 390 S.W.2d 437 (1965). Any tax exemption provision must be strictly construed against the exemption. Qualls v. Georgia-Pacific Corp., 269 Ark. 426, 602 S.W.2d 646 (1980). Any doubt suggests that the exemption should be denied. Id. On appeal we review exemption cases de novo and do not set aside the findings of the chancellor unless they are clearly erroneous. Southern Steel & Wire Co. v. Wooten, 276 Ark. 37, 631 S.W.2d 835 (1982).
The use tax (compensating tax) assessments against General Tire on hexane and toluol were made pursuant to Ark. Code Ann. § 26-53-106 (1987) [the “Arkansas Compensating Tax Act of 1949,” Ark. Code Ann. §§ 26-53-101 — 26-53-206 (1987)]. Ark. Code Ann. § 26-53-112 (1987) provides that the exemptions for tangible property under the “Gross Receipts Act of 1941” [Ark. Code Ann. §§ 26-52-101 — 26-52-804 (1987)] are applicable to the “Compensating Tax Act.”
Ark. Code Ann. § 26-52-401 (Supp. 1987) describes transactions which are exempt from the gross receipts tax. Paragraphs (12)(A) and (B) provide as follows:
(12) (A) Gross receipts or gross proceeds derived from sales for resale to persons regularly engaged in the business of reselling the articles purchased, whether within or without the state if the sales within the state are made to persons to whom sales tax permits have been issued as provided in § 26-52-202;
(B) Goods, wares, merchandise, and property sold for use in manufacturing, compounding, processing, assembling, or preparing for sale can be classified as having been sold for the purposes of resale or the subject matter of resale only in the event the goods, wares, merchandise, or property becomes a recognizable integral part of the manufactured, compounded, processed, assembled, or prepared products. The sales of goods, wares, merchandise, and property not conforming to this requirement are classified for the purpose of this act as being ‘for consump tion or use.’ (Emphasis added.)
In Hervey v. International Paper Co., 252 Ark. 913, 483 S.W.2d 199 (1972), we considered the question of whether International Paper was entitled to a use tax exemption under Ark. Stat. Ann. § 84-1904(i) (Repl. 1960), currently Ark. Code Ann. § 26-52-401(12)(A) and (B) (Supp. 1987), on chemicals and other substances used in the manufacturing of paper.
In Hervey, the manufacturer made paper by cooking wood at a high temperature in a white “cooking liquor” in order to separate cellulose from other substances found in wood. In this process the white liquor turned black when the unwanted substances were absorbed. After completion of the cooking procedure, the black liquor was separated from the cellulose. However, a 100 % separation was too expensive. Consequently, traces of the chemicals used in the liquor remained in the cellulose and could be detected by chemical analysis in the finished paper.
We held that one of the chemicals present in the “cooking liquor,” sulfur, did not come within the “sale for resale” exemption since the sulfur evaporated or was consumed during the manufacturing process.
As for other ingredients, such as a defoaming agent used to inhibit the formation of foam on the “cooking liquor,” and acetic acid, which was used to make dye more solvent, we held that they were not integral parts of the paper in that they were not essential to the completeness of the finished product, but rather found in the paper only because it was economically impractical to remove them.
In addition, we held that various other ingredients, such as Kelgin, Ludox, aluminum sulphate, and sodium aluminate, qualified for the statutory exemption in that they were added to the paper to improve the finished product and became recognizable integral parts of it.
Under Ark. Code Ann. § 26-52-401 (12)(A) and (B), General Tire is exempt from paying use tax on its purchases of hexane and toluol only if the two chemicals become recognizable integral parts of the manufactured tennis balls and rubber moldings.
The manufacturing of tennis balls is done in stages. First, natural and synthetic materials are blended together. The rubber is then formed into pellets and pressed into ball halves. Next, an adhesive is made by first breaking the rubber down until its consistency is somewhere between bread dough and Silly Putty. This material is taken to the mixing room where hexane and curatives are added to it. Hexane, a solvent which evaporates into the air as it is mixed, lowers the viscosity of the adhesive; curatives cause the rubber to cure or vulcanize.
Once the adhesive is made, it is applied to the ball halves. The ball halves are then pressed together in a large high pressure press. This molds the halves together and traps air pressure in the ball. Next, the core is prepared to receive a felt covering by dipping it in an adhesive containing a higher content of green tack than that used to press the ball together. Green tack is an adhesive which allows the material to stick together without going through the curing operation.
In a third and separate operation, the felt is prepared by applying an adhesive with a viscosity different than that used in the other processes to the back of the felt itself and dipping it in another adhesive. After the felt is dry, it is cut into the shape of a dumbbell. Next, the felt is dipped in another adhesive in order to make a seam and is placed on the ball core. The ball is then vulcanized and the logo applied. Finally, the ball is placed in a pressurized container and prepared for shipment.
William C. Douglas, an expert for General Tire, testified that only .022% of the hexane used to make a tennis ball is detectable in the finished ball and that the amount of hexane in the ball decreases with use. In addition, he testified that the tennis balls could not be made without hexane.
The manufacturing process for rubber moldings is as follows: First, the rubber moldings are made. Next, toluol (a carrier solvent) is mixed with polyurethane paint to thin the paint. Finally, the paint is applied to the moldings by running them through an automated painting device. Toluol is the carrying medium for the paint. The urethane makes the surface of the moldings slick.
Robert K. Sampson, another expert for General Tire, testified that most of the toluol evaporates during the manufacturing process. He also testified that he is quite sure that toluol is detectable in the paint. However, he did not conduct a test to conclusively establish whether it is or not.
In scrutinizing the manufacturing process, we conclude that hexane and toluol do not become integral parts of the tennis balls and rubber moldings. First, most of the hexane and toluol evaporates in the manufacturing of both products. See Hervey, supra. Secondly, we are not convinced that hexane and toluol are essential to the completeness of the finished balls and moldings. Id. Granted, there was expert testimony at trial that hexane and toluol are necessary in the manufacturing process of both products. However, the record is devoid of testimony that the finished products would cease to perform or would perform unsatisfactorily if the hexane and toluol remaining in the products were totally removed from them.
In light of our finding that hexane and toluol are necessary in the manufacturing process of both products but do not become integral parts of the balls and moldings, it is unnecessary for us to consider whether the chemicals become recognizable parts of the products.
In conclusion, General Tire is not entitled to an exemption for its use of hexane and toluol. The trial court was clearly erroneous in ruling to the contrary. We reverse and remand this case for proceedings consistent with this opinion.
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GuieeiN Smith, Chief Justice.
Two black and tan hounds belonging to Clyde R. Reeves were killed by a Rock Island motor train near a bridge north of Leola, where low marshy country is- traversed. The Railroad Company has appealed from a judgment for $200, ap-pellee having sued for $400.
Appellant contends there was no evidence of negligence, and says that the jury arbitrarily disregarded the testimony of Engineer Thomas W. McCuin, the only eye witness. St. Louis-S. F. Ry. Co. v. Harmon, 179 Ark. 248, 15 S. W. 2d 310.
Reeves testified that from physical evidence the dogs were killed by a train when it struck them on the bridge he described. The train was moving northward and dragged the bodies about thirty feet, and that [said Reeves] “was all they lacked of being off the bridge”.
The engineer testified that the dogs came onto the track at the foot of the bridge at a time when the train was 150 or 160 feet away. He was keeping a constant lookout and observed the animals as they came up the “dump”, but he did not know whether they came from under the bridge or out of the bushes. He saw them at the north entrance to the structure where the brush, weeds, and grass were from six to eig’ht feet from the ties. Warning was given by four or five blasts of the whistle. The train was making 35 or 40 miles an hour on a straight stretch of track where the schedule calls for 50 miles. A private road crosses the track half a mile farther north. Three or four seconds lapsed between the time the dogs were seen and the time they were struck. An emergency stop conld have been made in six or seven hundred feet, but the effect would be to throw passengers from their seats. Seven seconds are required for emergency brakes to exert their full effect on a train such as McCuin was operating.
By Ark. Stat’s, § 73-1007, live stock killed on a railroad track is evidence, prima facie, that the animal was struck by a train, and “the onus of proving the reverse” is on the railroad company.
The appellee here proved only what the engineer admitted. The physical facts add nothing in contradiction of the evidence relied upon by appellant. In the absence of some fact or circumstance indicating that the engineer was in error, there is nothing' to show that ordinary care was not exercised or that a lookout was not being kept. Assuming that the train was traveling 40 miles an hour, that the two dogs suddenly appeared on or near the bridge when the diesel-driven engine was 160 feet away, and that the whistle was promptly sounded, — then what more could McCuin have done? Information of conditions under which the train could be stopped or the speed sufficiently reduced to permit avoidance was peculiarly within the trainman’s knowledge, and no effort was made to disprove his testimony. The presumption arising from the fact and place of killing was overcome. In order to prevail some proof of negligence was required. The case is not unlike St. Louis-S. F. Ry. Co. v. Matlock; 198 Ark. 1187, 132 S. W. 2d 657. See, also, St. Louis-S. F. Ry. Co. v. Pace, 193 Ark. 484, 101 S. W. 2d 447.
The judgment is reversed, with dismissal of the cause.
Mr. Justice McFabdiN and Mr. Justice Millwee dissent.
Ed. F. McFaddiN, Justice (dissenting). The majority of this Court is holding that the Circuit Judge should have instructed a verdict for the defendant instead of submitting the case to the jury. I respectfully dissent; because, as I see it, a question was made for the jury under our holdings in Railway Company v. Hutchison, 79 Ark. 247, 96 8. W. 374, and Railway Company v. Chambliss, 54 Ark. 214, 15 S. W. 469.
In Railway Company v. Hutchison, supra, Mr. Justice Battle clearly stated the applicable rule:
“The plaintiff, W. E. Hutchison, proved that his horse was killed by the operation of the railway of the defendant, the St. Louis Southwestern Railway Company. This was sufficient to show that the killing was the result of the negligence of the defendant, unless evidence adduced proved the contrary. Plaintiff thereby cast upon the defendant the burden of excusing the killing. To do so it introduced two witnesses. But the testimony of each of these witnesses is inconsistent with and contradictory to itself. If the jury disbelieved their testimony on account of these inconsistencies and contradictions, the law warranted them in disregarding it, which they did, as shown by their verdict. Railway Company v. Chambliss, 54 Ark. 214.”
In Railway Company v. Chambliss, supra, Mr. Justice Hemingway said:
“The plaintiff proved that her horse was killed by the operation of defendant’s cars. She thereby cast upon it the burden of excusing the killing.
i‘If the jury had believed the testimony of the defendant’s engineer, its duty would have been plain to find a verdict for the defendant. Was it warranted in disbelieving his testimony?
“As we understand the law, it warrants a jury in disregarding the statements of a witness which it does not believe to be true, whenever such disbelief fairly arises — whether because the statements involve impossibilities, or what, according lo common observation and experience in reference to such matters, seems highly improbable, or because they are incoherent and iueon- sistent in themselves, or because they are inconsistent with the accepted testimony in the canse. Sellar v. Clelland, 2 Col. 539; French v. Millard, 2 O. St. 52; Evans v. Lipscomb, 31 Ga. 71.”
Prom the holdings of these two cases I understand the law to be that a jury question is made in a case like the one at bar, if the testimony offered by the Eailway Company is “inconsistent and contradictory,” or if “the statements involve impossibilities, or what, according to common observation and experience in reference to such matters, seems highly improbable.” Now with the above holdings before us, we turn to the evidence in. the case at bar; and here it is:
The “train,” a motor coach and baggage car, was traveling North at thirty-five miles per hour (which would be about fifty feet per second) on a straight track and in the daytime. When it was 150 feet South from the South end of a 166 foot trestle, the engineer saw two dogs get on the track at the North end of the trestle. Thus the dogs were 316 feet away from the train at the time the engineer saw them. He testified that the dogs proceeded South on the trestle, 30 feet towards the approaching train, as the train traveled towards the dogs, and 'that he blew the whistle four or five times. The trestle was only six feet above the ground.
To put it mildly, it seems to me “highly improbable” that two well trained hound dogs, in the daytime, with a train plainly visible, went 30 feet on a railway trestle towards an approaching train that sounded its whistle four or five times after the dogs got on the track, and finally, that in such a situatio'n the dogs refused to jump from the trestle to the ground which was only six feet below.
The Circuit Judge evidently thought the testimony offered by the Eailway Company was “highly improbable,” because he sent the case to the jury. I agree with the Circuit Judge; and I feel that the majority is substituting its judgment for that of the jury and is allowing the Railway Company to escape liability on testimony that is “highly improbable.”
To use Justice Battle’s words.
To use Justice Hemingway’s words.
That the dogs were well trained was established by two witnesses. | [
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Lyle Brown, Justice.
Appellant, along with his code-fendant, was convicted of robbery with a firearm and each was sentenced to serve fifteen years. After some delay in procedure an appeal was granted appellant. In the meantime, appellant having been committed to the penitentiary, asked for and was granted a Rule I hearing. The latter hearing was conducted, the Rule I petition was denied, and the trial court granted an appeal both from the judgment of conviction and from die adverse finding on the Rule I petition. Appellant advances three points for reversal, namely, (1) that his Rule I petition should have been granted and a new trial ordered, (2) that a motion for severance should have been made in his behalf, and (3) that instruction number seven was erroneous.
As to the Point I, we think the trial court did not err in refusing to grant a new trial. The point is based on the testimony of the codefendant at the Rule I hearing to the effect that appellant had nothing to do with the robbery. Appellant implicated himself at that hearing because he testified: “I was aiding and abetting is what I’d call it... that’s what my job was”. That was exactly the theory of the State at the trial — that the codefendant went inside the liquor store with the gun and that appellant was on the lookout just outside the store. That testimony corresponded with the testimony of the codefendant to the effect that appellant had on a halloween mask.
Appellant classified his codefendant’s testimony at the Rule I hearing as newly discovered evidence. His codefendant made an affidavit prior to the Rule I hearing which corresponded with the codefendant’s testimony at the hearing. That affidavit was executed some nineteen months after the original trial. In other words, notwithstanding these two men were in * the penitentiary together, the so-called newly discovered evidence did not come to surface for nearly two years and just prior to the Rule I hearing. Furthermore, even appellant concedes that the affidavit did not entirely exonerate him. In fact, the affidavit put appellant at the scene of the crime wearing a mask. Finally, it is hardly believable that the codefendant would have testified at the original trial in the same manner as he did at the Rule I hearing; his position at the time of trial was that he had nothing whatsoever to do with the crime.
Appellant’s second point — that a motion for severance should have been granted — is likewise without merit. Appellant contends that he asked his court-appointed attorney, just prior to the trial, to seek a severance from his codefendant. Appellant’s codefendant said he heard no such conversation. The trial court remarked that appellant’s attorney asked for a continuance and it was granted. The trial court further stated that no mention was made to him of a severance. The trial court apparently rejected the veracity of appellant on this point and we cannot say it was error. Additionally, just what advantage could have resulted in a severance is hardly perceivable under the state of the record.
Appellant’s insistence that instruction seven was erroneous is likewise without merit. The instruction told the jury that the defendants could not be convicted on the testimony of an accomplice; that in addition there must be substantial evidence to corroborate that testimony. (The court was referring to the testimony of a young woman who was arrested as an accomplice.) It is true the court did not define the term “accomplice” but on the other hand there was no request for such a definition. Additionally, there was no objection made to the instruction given.
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John I. Purtle, Justice.
Appellant was convicted by a jury in Fulton County and sentenced to forty years for rape and five years for burglary. On appeal he alleges the trial court erred in allowing the prosecuting attorney to improperly voir dire the jury. We do not find prejudicial error even though the conduct by the prosecuting attorney was out of line.
The only facts relevant to this opinion relate to voir dire of the jury by the state. Therefore, it will be necessary to set out part of the record as it occurred in the courtroom. The following is a part of the jury voir dire by the state:
State: Now, let me ask you this and let’s visit here just a minute. As His Honor has indicated to you, we’re dealing here with three separate charges in this, one of aggravated assault, one of burglary, and one of rape. Now, ladies and gentlemen, this is a series of serious crimes that have been committed right here in Salem, Arkansas, and I know that the first thing that runs across your mind is that when you sáy, well, that there has been a rape committed here in Salem, Arkansas, is that the same thing that runs across my mind or most people’s mind that live up here in the hills, you say, no, that just doesn’t happen here — (objection by defense)
Court: If you would, just get to your questions, Mr. Hively.
State: Yes, Sir, I’m just laying the foundation.
Court: Yeah. Well, go ahead.
State: And what I was getting at, ladies and gentlemen, is this. The people who enacted the laws of the State of Arkansas have said that, and I anticipate His Honor will so instruct you, that for the crime of rape, assuming that you find the defendant guilty — (objection by defense)
State: As I was saying, ladies and gentlemen of the jury, the people who enacted the laws of the State of Arkansas that we live by have said that a person’s home, the home that they live in, is their castle that they live in, and that if someone enters that home with the intention of committing a crime therein, that they should be charged for that and they said that is burglary, because you and me and everyone of us should be secure in our homes, and they said that the crime of burglary, if you find a defendant guilty of that, could carry a — (objection by defense)
Several such rambling discourses were made despite objections by the defense. They were not in the form of questions to the jury but were the type statements usually made in opening statements or closing arguments.
The purpose of voir dire examination is (1) to discover if there is any basis for challenge for cause, and (2) to gain knowledge for the intelligent exercise of peremptory challenges. A.R.Cr.P. Rule 32.2. The extent and scope of voir dire is generally within the sound discretion of the trial judge. Fauna v. State, 265 Ark. 934, 582 S.W.2d 18 (1979). Unless the trial court’s discretion is clearly abused it will not be reversed on appeal. Finch v. State, 262 Ark. 313, 556 S. W.2d 434 (1977). The parties cannot use voir dire solely for the purpose of getting acquainted with the jury, nor is voir dire an unlimited proceeding. Van Cleave v. State, 268 Ark. 514, 598 S.W.2d 65 (1980). The trial court, however, should not unduly limit the extent of voir dire. Fauna v. State, supra. Although the trial court permitted the prosecuting attorney to go beyond the purpose of voir dire, there was no motion for a mistrial or admonition, therefore, we do not find prejudicial error.
Affirmed. | [
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Smith, J.
Appellant is the widow of Sam Carson Johnston and is the beneficiary in a policy of insurance on his life issued by the Order of United Commercial Travelers of America, hereinafter referred to as the order. The insured was found dead in the municipal natatorium in the city of Monroe, Louisiana, on the morning of January 4, 1927, and this suit was brought soon thereafter when the order denied liability.
The constitution and by-laws of the order, which are made part of the insurance policy, provide that ‘‘ This order shall not be liable to any person for any benefit for any death * * # resulting from self-destruction (whether sane or insane) of the insured,” and, further, that: “This order shall not be liable to any person for any benefit for any death, * * * injuries (fatal or otherwise) intentionally inflicted by others (except where such injuries are inflicted for the sole purpose of burglary or robbery or by an insane person) the intention to commit burglary or robbery to be established by the claimant and the insanity to be established by a court having competent jurisdiction.”
There was a verdict for the defendant order, and a judgment accordingly, which the order insists should be affirmed, notwithstanding the assignments of error, for the reason that the undisputed testimony shows that deceased died by his own hand.
The insured had been an active business man, and had made money, but financial reverses came. He became a member of a partnership which attempted to put on the market a patented automobile grease gun, but he lost his investment. He borrowed money from his wife, which was also lost in the same investment. At the time of his death deceased and his wife were not living together, although there does not appear to have been a permanent estrangement. Insured borrowed $500 from a brother-in-law just before the holidays, and borrowed smaller sums from his friends with which he paid current expenses. He remarked to several of his friends that he had involved his wife, but that he “would square that 'by bumping off,” as he carried sufficient insurance for that purpose. He was not a dissipated man, yet he drank heavily during the week preceding his death, and was confined for two nights in the city calaboose on that account. A friend procured his release on Sunday, and he was found dead the following Tuesday.
On) thei morning the insured’s dead body was found, a street car motorman observed an automobile parked near the municipal natatorium with some letters lying on the seat. He reported that fact to the engineer at the power house, who, in turn, called L. V. Tarver, a city detective. Tarver testified that he went to the city park, where he found the car, with two letters on the seat. One was addressed to R. D. Swayze, and the other to Laza Caspari. Witness sent word to Swayze, and when the latter came the letter addressed to him was opened and read. Both Swayze and Caspari identified the letters addressed to them as having been written by the insured. The letter to Swayze reads as follows:
‘'‘Mr. R. D. Swayze.
“Dear Friend: I request that you and Mr. Caspari take charge. Be sure that preparations are inexpensive. Arrange to have my Shrine insurance transmitted to my dear little wife by wire, one of the very best and truest little mates that ever lived. Help and advise her.
“Sam C. Johnston.
“My bag and overcoat are in room 16 Bohemia Hotel. My lodge receipts are in my pocket book inside my bag. I owe 8 days’ room rent please pay and have my wife reimburse you. ’ ’
The other letter was of similar purport.
Tarver and Swayze went to the pool, where, about the middle of the north end, there ivas a derrick, framework that held up a shoot-the-shoot, and resting on one of the -cross-pieces supporting that framework they discovered the body about four feet under the water. The body was sixteen or eighteen feet from the north end of the pool.
Dr. C. P. Gray, the coroner, was notified, and upon his arrival the body was removed from the pool. Dr. Gray testified that he had been coroner of the parish for twenty years; that he was a practicing physician, and that he had made a special study of similar cases, and that, in his opinion, there was no question but that the deceased had committed suicide. The testimony of this witness was taken by deposition. Dr. Gray further testified that, when the body was taken out of the water, an open knife was found tightly clutched in the right hand. There were three -cuts in the neck, which began at the left ear and stopped just before reaching the mid-line of the neck in front. The wounds had cut through the skin and the larger blood vessels on the left side of the throat and the deceased had died from the loss of blood resulting from severing the larger blood vessels in the throat. There was a small amount of coagulated blood on the knife where the blade went into the handle, and the blade of the knife was protruding between the thumb and first finger of the right hand of the deceased when his body was removed from the water, the cutting edge of the knife being turned towards the body.
If the facts just detailed were admitted to be true, or were undisputed, we would not hesitate to hold that only one inference could be deduced from them, and that is, that insured committed suicide, in which event it would be unnecessary to review the record for error in the trial; but there is some dispute in the testimony, and we are unable to say that the undisputed facts are such as to compel all reasonable minds to reach the conclusion that the insured committed suicide.
Just here it may be said that there was some testimony to the effect that deceased had become much embittered at one of his business associates and another party, but there is no testimony warranting the submis sion of the question whether these men, or either of them, might have killed him. It would not help plaintiff’s case, however, if these men, or either of them, had killed the insured, for there is not even a suspicion that they did so for the purposes of burglary or robbery. The death of the insured at their hands, except for purposes of burglary or robbery, or unless they were insane, would have given no cause of action under the provisions of the policy set out above.
The application of deceased for the policy sued on was offered in evidence, and his signature thereto was sufficiently identified to use it as the basis of comparison with the signature to the letters in the deceased’s automobile, and the addressees in these letters both testified that they recognized the signatures as those of Mr. Johnston, the insured. But Mr. Johnston’s wife and stepdaughter both testified that the signatures were not those of Mr. Johnston, and this conflict in the testimony makes a question for the jury as to the genuineness of the signature. In addition, the stepdaughter testified that Mr. Johnston was left-handed and, in eating, held his knife in his left hand, whereas, when the body was found, the bloody knife was in the right hand. We cannot, therefore, say that the undisputed testimony shows a case of suicide, and, this being true, it cannot be said that no prejudicial error was committed at the trial.
In the depositions of Dr. Gray and some of the other witnesses the opinion was expressed that the case was one of suicide, and the deposition of Dr. Gray not -only expressed this opinion, but contains some cogent arguments in support of that opinion.
Opposing counsel have briefed the question of the admissibility of an expert opinion that the death in question resulted from wounds self-inflicted with suicidal intent, and there appears to be several authorities holding such testimony competent. Miller v. State, 9 Okla. Cr. 255, 131 Pac. 717, L. R. A. 1915A, 1088. We think, however, that the better rule excludes this expert testimony. This is the point in issue, the decisive fact in the case, the question which the jury was impaneled to decide, and is an inference which one person might draw as well as another. Of course, the trained physician and surgeon might know the depth and character and consequences of cuts and wounds and the manner in which they might have been inflicted, which the lay witness might not have, and testimony of this character may be given by the expert, but, when it has 'been given, the jury, and not the witness, should say with what intent the wounds were inflicted.
It was therefore error to permit witnesses to express the opinion that the deceased had committed suicide, and, as we have said that the undisputed testimony does not show death by suicide, we must hold this incompetent testimony prejudicial.
Complaint is made of several of the instructions; but we find no error prejudicial to appellant in this respect. The law of the subject has been declared in many opinions by this court, the most recent being that of Home Life Insurance Company v. Miller, ante p. 901. The instructions declared the law as favorable to appellant as she had the right to ask.
For the error in the admission of the incompetent opinion evidence the judgment must be reversed, and the cause will be-remanded for a new trial. | [
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Robert H. Dudley, Justice.
Appellant, Starla Jones, pleaded guilty to the offense of theft by deception, a Class C felony. At the time the offense was committed, in October 1986, the applicable statute authorized the trial court to sentence a defendant to a fine and suspend imposition of sentence as to imprisonment. Ark. Stat. Ann. § 41-803(4) (Supp. 1985) [Now codified at Ark. Code Ann. § 5-4-104 (Supp. 1987)]. The trial court ordered the appellant to pay a $750.00 fine and, in addition, withheld imposition of sentence as to imprisonment for five years. Restitution and costs were additionally ordered paid. The State later filed a petition asking that the appellant be required “to show cause why his suspended sentences should not now be set aside.” The trial court treated the petition as one to impose a sentence of imprisonment. A hearing was held and, seven (7) months after its original decree, the trial court ordered that the original suspended imposition of sentence as to imprisonment remain in effect and that appellant be sentenced to sixty (60) days in jail and the amount of restitution be increased. The appellant did not object below to the ruling and now appeals, arguing that the trial court acted beyond its authority in imposing the second sentence. The argument is well taken, and accordingly, we reverse.
Although appellant did not object in the trial court, she need not have done so. The trial court’s loss of jurisdiction over a defendant “is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by this court.” Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983); Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985).
The trial court fined the appellant $750.00 and suspended imposition of the sentence of imprisonment. After such a sentencing procedure the trial court correctly entered a judgment of conviction. See Ark. Code Ann. § 5-4-301(d)(l) (1987) [Formerly Ark. Stat. Ann. § 41-1201(3)(a) (Repl. 1977)]. The commentary following Ark. Stat. Ann. § 41-1201(3) effectively explains the legislative intent:
Subsection (3) excepts two situations from the general rule that a judgment of conviction is not to be entered when a court orders suspension or probation. The first is when the court fines the defendant and suspends or probates him only as to imprisonment. The court must enter a judgment of conviction if it is to have a basis for imposing a fine. Furthermore, the defendant who is found guilty of an offense and sentenced to pay a fine only has clearly been “convicted” of the offense. The result should not be different when the court fines the defendant and suspends imposition of sentence or places him on probation as to imprisonment.
Clearly, a plea of guilty, coupled with a fine and a suspension of imposition of sentence of imprisonment constitutes a conviction. David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985).
A trial court loses jurisdiction to modify or amend the original sentence, once a valid sentence is put into execution. Toney v. State, 294 Ark. 473, 743 S.W.2d 816 (1988); Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987). The issue then becomes, is a sentence by a circuit court to pay a valid fine put into execution when the judgment of conviction is entered? The obvious answer is yes. Unless the court directs payments by installment the whole fine is payable immediately. Ark. Code Ann. § 5-4-202(2)(b) (1987) [Formerly Ark. Stat. Ann. § 41-1102 (Repl. 1977)]. When the fine is adjudicated against the defendant in circuit court, the sheriff is to collect it. Ark. Code Ann. § 16-92-115 (Supp. 1987) [Formerly Ark. Stat. Ann. § 43-2503 (Repl. 1977)]. In addition, a judgment that a defendant pay a fine constitutes a lien on his real and personal property in the same manner as a judgment in a civil action. Ark. Code Ann. § 5-4-204(b) (1987) [Formerly Ark. Stat. Ann. § 41-1104(2) (Repl. 1977)]. Also, a defendant may be ordered to show cause why he should not be imprisoned for nonpayment. Ark. Code Ann. § 5-4-203 (1987) [Formerly Ark. Stat. Ann. § 41-1103 (Repl. 1977)]. The valid fine assessed in the original judgment of conviction in this case was put in execution long before the trial court attempted to modify the sentence. Thus, the attempted modification of the original order was erroneous.
The State argues that the trial court was following Ark. Code Ann. § 5-4-306(b) (1987) [Formerly Ark. Stat. Ann. § 41-1205 (Repl. 1977)], which authorizes modifying conditions imposed in an order suspending imposition of sentence. The short answer to that argument is that the original order only suspended imposition of sentence as to imprisonment. It did not suspend imposition of the fine.
The order modifying the original sentence is reversed.
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Ed. F. McFaddin, Justice.
This appeal involves the validity of several State tax deeds and also the effect of confirmation proceedings conducted under Act 119 of 1935
Appellant filed suit in the Chancery Court, claiming to be the owner of six tracts of land in Little River County, Arkansas, totaling 200 acres. The appellee held under deeds, issued to it in 1945 by the State Land Commissioner, based on forfeiture for taxes of previous years; appellant claimed that the tax forfeitures were void for various reasons; appellee not only asserted the validity of the tax forfeitures but also pleaded confirmation decrees under Act 119 of 1935 as curing all possible defects. There was no allegation in the complaint, or testimony in the record, as to any claim of actual possession by appellant. It was stated in the oral argument before this Court that the lands were timber lands.
Trial in the Chancery Court resulted in a decree for appellee for five of the tracts and a decree for appellant for one tract. By appeal and cross-appeal the entire controversy is before this Court. Because, in some instances, the questions presented on one tract are different from those on other tracts, we will discuss the tracts grouped according to the questions presented.
Tract No. 1 — EYz SEYé SEYé Sec. 25 and
Tract No. S — SWYé NWYé Sec. 36
As to Tract No. 1, the trial court dismissed appellant’s claim, because appellant failed to show any title in himself or any possession of the land, and therefore could not be heard to attack appellee’s tax title since one without title or possession cannot attack the title of another. See Jackson v. Gregory, 208 Ark. 768, 187 S. W. 2d 547, and cases there cited. Such holding of the trial court was in all things correct.
As to Tract No. 5, L. E. Spence was the common source of title. Pie conveyed to J. A. Denton in 1922, and J. A. Denton conveyed to Lillie P. Denton in 1932. There is no record title out of Lillie P. Denton. In July, 1947, J. A. Denton, Mrs. Mae Kennedy, and others, executed a quitclaim deed to appellant Bowles; but there is nothing in the deed or elsewhere in the evidence to show that these grantors had any title through or from Lillie P. Denton. Appellant was asked if he knew anything about the relationship of the parties; and he gave nega tive answers. There is no presumption that appellant’s grantors had any title, from Lillie P. Denton (see Ambs v. Chicago, Etc., Railway Company, 44 Minn. 266, 46 N. W. 321, and Turner v. Liebel, 185 Ky. 313, 215 S. W. 70; 19 C. J. 1156, and 28 C. J. S. 958). Thus appellant, has failed to show either a record title, or possession, and therefore has no standing to attack appellee’s tax deed issued by the State in 1945. As previously stated, one without title or possession cannot attack the title or another.
Tract No. 2 — Wy2 SEy^ SEy± Sec. 25
L. E. Spence, the common source of title, conveyed to Gunn in 1923, and Gunn conveyed to appellant in 1947. But the tract forfeited to the State in 1931 for the taxes of 1930; the State obtained a confirmation decree in 1937 under Act 119 of 1935; and the State conveyed to appellee in 1945.
Appellant claimed that the 1930 tax forfeiture was void and that the 19.37 confirmation decree could not, and did not, cure the defect. The Chancery Court held for the appellant; and appellee has appealed. The Chancery decree recites:
“. . . The testimony discloses that the clerk failed to certify the delinquent sale; failed to certify that the lands were advertised as required by law, and the court is of the opinion that the title claimed by the defendant, Dierks Lumber & Coal Company, based on said tax sale, is void; ...”
We hold that these two defects — i. e., failure of the Clerk to certify the list, and failure of the Clerk to certify that the lands were advertised, both as required by § 84-1103, Ark. Stats. — were irregularities that were cured by the confirmation decree, as neither defect went to the power to sell. Such is the effect of our holdings in Berry v. Davidson, 199 Ark. 276, 133 S. W. 2d 442; Faulkner v. Binns, 202 Ark. 457, 151 S. W. 2d 101; Stringer v. Fulton, 208 Ark. 894, 188 S. W. 2d 129; Billingsley v. Lipscomb, 211 Ark. 45, 200 S. W. 2d 510; and Hensley v. Phillips, 215 Ark. 543, 221 S. W. 2d 412. So we conclude that the Chancery Court was in error in awarding this tract to the appellant; and to that extent the decree is reversed on appellee V cross-appeal.
Tract No. 3 — SWy^ SEy4. Sec. 25
and
Tract No. 6 — NWy4 NWy± Sec. 36
L. E. Spence was the common source of title. In 1925 he conveyed one tract to G-unn and the other to Widdersheim; and each of these parties, by separate deed, conveyed to appellant Bowles in 1947. But in 1941 each of the tracts forfeited to the State for the nonpayment of 1940 taxes; and the State obtained a confirmation decree, under Act 119 of 1935, at the November 1944 term of the Little River Chancery Court. Thereafter (in March 1945) the State conveyed the tracts to the appellee. Appellant claimed that the tax forfeitures were void and that the confirmation decree could not cure the three defects on which appellant relied to defeat the tax sale. We mention these as (a), (b), and (c):
(a) — Appellant claimed that the levying of school taxes by the Quorum Court was void because the record failed to show the levy to have been in mills. The Quorum Court proceedings showed in this regard that the school taxes were levied “as voted by the voters of the several school districts at tlie regular school elections . . . in words and figures as follows:
Total Mills “School District Voted General Fund Building Fund
Dist. 12, 18 13 5 Winthrop
It will be observed that the word, “mills”, appears in the second column as “Total Mills Voted.” The case of Seligson v. Seegar, 211 Ark. 871, 202 S. W. 2d 970, involved a record in all respects similar to the one here; and under the authority of that case the appellant’s attack is without merit, and the Chancery Court was correct in so holding.
(b) — Appellant claims that the proceedings of the Quorum Court were not signed by the Clerk, and therefore the entire tax sale was void. This contention is also similar to one made in Seligson v. Seegar, supra, and for reasons there stated is likewise held to be without merit. Furthermore, we point out that the Quorum Court proceedings were duly entered of record, and such record— in the custody of the proper official — was presented to the trial court. The Chancery Court was correct in holding this claim of appellant to be without merit.
(c)' — The appellant contends that the Quorum Court levied the taxes before making the appropriations, whereas § 17-409, Ark. Stats., requires the reverse order of procedure. Sub-section 6, Division 8, of said section reads: “After the appropriations shall have been made, the court shall then levy the county (municipal) and school taxes for the current year . . .” In the case at bar the appropriations were made at the same session of the Quorum Court at which taxes were levied, but appear in the record to have been after the taxes had been levied. No contention is made that the taxes were not levied, but it is contended that the taxes were levied before, instead of after the appropriations were made. At most, such would be a mere irregularity in the order of business; and even if it could be urged to defeat a tax sale prior to a confirmation decree under Act 119 of 1935 (a point we do not decide), certainly such, irregularity would be cured by a confirmation decree under said act.
We are therefore brought to the validity and sufficiency of the confirmation decree which the State of Arkansas obtained at the November, 1944, term of' the Little River Chancery Court confirming the title of the State to the lands here involved. That was Case No. 50 in the Little River Chancery Court. A portion of the decree is in the transcript, and when the attorneys were discussing the decree in the trial of the present case, this occurred:
“Mr. Collins: The decree is at page 313 of the same volume.
“Court: All right. That was the November Term, 1944, Confirmation Suit of 1944. Confirming the taxes for what year?
“Mr. Collins: 1940. It was the 1940 tax suit. We desire to introduce this decree in evidence.
“Court: If there is no objection, let it be introduced.
“Mr. Quinn: No objection.”
While the Chancery Clerk was on the witness stand, he testified from the record: “. . . that 1940 suit is number 50. ’ ’
So it is clear that even though,the portion of the decree copied into the transcript fails to state — through apparent oversight- — that the decree confirmed the State’s title, because of the failure to pay the 1940 taxes, nevertheless, such fact is made clear from the above copied excerpts. The lands forfeited to the State for the non-payment of the 1940 taxes; and we hold — as did the Chancery Court — that the confirmation decree heretofore referred to cured the irregularity of the challenged Quorum Court proceedings. Such is the effect of our holdings in the cases of Fuller v. Wilkinson, 198 Ark. 102, 128 S. W. 2d 251; Faulkner v. Binns, 202 Ark. 457, 151 S. W. 2d 101; and Stringer v. Fulton, 208 Ark. 894, 188 S. W. 2d 129, and cases there cited.
Tract No. 4 — NEy^ NW% Sec. 36
L. E. Spence, the common source of title, conveyed to Iverson in 1922, and Iverson conveyed to appellant Bowles in 1947. But the tract forfeited to the State in 1941 for the taxes of 1940; the State obtained a confirmation decree at the November, 1944, term of the Chancery Court, under Act 119 of 1935, and the State sold the tract to appellee in 1945. The same three defects urged against Tracts Nos. 3 and 6 {supra) were urged regarding this tract; and our holdings on those questions apply here.
In addition, appellant also claimed this tract under a Road Improvement District deed: that is to say, this tract was in Road Improvement District No. 7 of Little River County, and the Road Improvement District obtained a decree of foreclosure in 1926 for the delinquent assessment of 1924. Then in 1933 the Road Improvement District obtained a deed when the land owner had not effected a redemption; and in 1947 the Commissioners of the Road Improvement District executed a deed to appellant Bowles. He now contends that during the time the title was in the Road Improvement District the land was not subject to forfeiture for State and County taxes. Therefore, he urges that the 1940 tax forfeiture was null and void, and seeks to rely on such cases as Hubble v. Grimes, 211 Ark. 49, 199 S. W. 2d 313; Little Red River Levee Dist. No. 2 v. Moore, 197 Ark. 945, 126 S. W. 2d 605; and Baiers v. Cammack, 207 Ark. 827, 182 S. W. 2d 938.
But the vice in the appellant’s argument is that in the said adjudicated cases the Districts involved were Levee Districts or Municipal Districts that had not been taken over by the State; whereas, in the case at bar, Road Improvement District No. 7 of Little River County was a beneficiary of Act 11 of 1927 and Act 153 of 1929, and was therefore taken over by the State. Because of the last mentioned fact the Road Improvement District deed, to Bowles in 1947, is a nullity. The reasons for this statement are fully given in the cases of Todd v. Denton, 188 Ark. 29, 64 S. W. 2d 331, and Tri-County Highway Dist. v. Taylor, 184 Ark. 675, 43 S. W. 2d 231. In Luebke v. Holtzendorff, 204 Ark. 502, 162 S. W. 2d 899, we said of these last two mentioned cases: “Those opinions were to the effect that since the passage of the Martineau Road Law of 1927 and Act 153 of the Acts of 1929 road improvement districts were without authority to sell lands for the non-payment of delinquent road taxes.” So we hold — as did the Chancery Court— that the appellant’s deed from the Road Improvement District is a nullity and does not give him any right to challenge appellee’s tax title.
To summarize: the decree of the Chancery Court is affirmed on direct appeal and is reversed on cross-appeal only as to Tract No. 2, and remanded with directions that such tract be awarded to appellee. This being an equity case, we are free to adjudge the costs as seem equitable: and we decree that the costs of this Court shall be equally paid by appellant and appellee, and that the division of costs made by the trial court be in all things approved.
This Act, as presently amended, is now § 84-1315, et seq.. Ark, Stats,
There is a statement in Cecil v. Tisher, 206 Ark. 962, 178 S. W. 2d 655, that reads: “We think the failure of the clerk to perform this duty, as required by § 13848 of Pope’s Digest, did avoid these sales, and was a jurisdictional defect.’’ In that case there had been no confirmation proceeding under Act 119 of 1935; and the words, “jurisdictional defect,” were used in that opinion as relating to a defect which could be urged prior to confirmation, and did not mean a defect relating to the power to sell which, of course, could not be cured by a confirmation proceeding. Likewise, Browning v. King, 214 Ark. 480, 216 S. W. 2d 803, was a case in which the defect was urged prior to a confirmation; and in Devore v. Beard, 208 Ark. 476, 187 S. W. 2d 173, the defect was urged before the confirmation decree became final.
In using the expression “cured by the confirmation decree,” we necessarily mean: (a) the rendition of the decree, and (b) the lapse of one year without challenge of the decree. See § 84-1325, Ark. Stats.
As to defects that go to the power to sell, see Lumsden v. Erstine, 205 Ark. 1004, 172 S. W. 2d 409.
In using the expression “cured by the confirmation decree,” we necessarily mean: (a) the rendition of the decree, and (b) the lapse of one year without challenge of the decree. See § 84-1325, Ark. Stats.
There was an effort by appellee to bring to this Court by certiorari certain papers that were not in fact before the trial court. Under our rules we have necessarily rejected all such papers. Also a typographical error, in some of the exhibits, was mentioned by this Court in the oral argument; and appellee initiated correspondence with appellant in an effort to clear up this error. We have rejected all such correspondence. The error was mentioned in the trial court and impliedly conceded on Pages 39, and following, of the transcript.
This District was created by Act 292 of 1919. | [
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Frank Holt, Justice.
Appellant was convicted by a jury of robbery and sentenced to eleven years under the penal provision of Ark. Stat. Ann. § 41-3602 (Repl. 1964), and the habitual offender act, Ark. Stat. Ann. § 43-2328 (Supp. 1971). Appellant was also sentenced to an additional five and one-half years for the use of a firearm in commission of the felony. § 43-2336.
Appellant first contends for reversal that the trial court’s continuance of “this case on its own morion because of uncertainty as to how a witness subpoenaed by the defendant would testify prejudiced the defendant’s ability to defend hiynself and violated his right to a speedy trial under the U. S. Constitution, Amendments 6 and 14, and the Constitution of the State of Arkansas, Article 2, Section 10.”
The granting of a postponement of a criminal trial may be made upon a showing of “sufficient cause.” Ark. Stat. Ann. § 43-1705 (Repl. 1964). The granting of a continuance by the trial court is a matter within the court’s sound discretion and will be upheld absent a showing of abuse of discretion. Nowlin v. State, 252 Ark. 870, 481 S.W. 2d 320 (1972), Randall v. State, 249 Ark. 258, 458 S.W. 2d 743 (1970). Several days before trial the court was informed that in accordance with appellant’s demand his attorney had subpoenaed a fellow prisoner as a witness for his defense. A local attorney was appointed to represent the prospective witness who appellant expected would admit to the robbery and exonerate appellant. The witness’ appointed attorney, however, was in the hospital on the day of appellant’s scheduled trial. The attorney requested the right to be present when his client testified in order to fully advise him of his constitutional rights as a witness. The trial court, on his own motion, reset the case for trial about two months later. Appellant objected and maintained the trial court should proceed even though the witness’ attorney was ill. We note that the witness, subpoenaed by appellant, testified at a later trial date and disclaimed any participation in the alleged offense. In the circumstances, we find no abuse of discretion in the court’s postponement of the rial.
Neither do we find merit in appellant’s contention that his right to a speedy trial was violated. Our speedy trial statute, Ark. Stat. Ann. § 43-1708 (Repl. 1964), would have required appellant’s trial within two terms of court from the time charged. Ark. Stat. Ann. § 22-310 (Repl. 1962) indicates that the terms of court in Sebastian County, Fort Smith District, commence on the first Monday in February, June and October. Appellant was arrested in the third term and tried in the first or succeeding term, therefore, meeting the two term requirement. See also Givens v. State, 243 Ark. 16, 418 S.W. 2d 629 (1967), Randall v. State, supra, Gardner v. State, 252 Ark. 828, 481 S.W. 2d 342 (1972).
Appellant’s second contention is that the court erred in allowing a pistol, seized in a warrantless search of his car, to be introduced into evidence. Warrantless car searches are permissible due to the mobility of the object to be searched where there exists probable cause to believe that the automobile contains articles the officer is entitled to seize. Carroll v. United States, 267 U.S. 132 (1924), Easley v. State, 255 Ark. 25, 498 S.W. 2d 664, and Cox v. State, 254 Ark. 1, 491 S.W. 2d 802 (1973). In. the instant case the deputy sheriff in Leflore County, Oklahoma, testified, based upon information about the robbery and a description of the appellant and his vehicle, that he and other officers found the appellant’s car parked and abandoned on the side of a highway. Appellant had run out of gas and left the car in search of a service station which, it appears, was unknown to the officer. The absence of the driver at the time of discovery of the car does not necessarily eliminate the mobility factor. There existed probable cause for the search. The officer had certain information which fit the description of the get away car. He testified that he saw the pistol when he shined his flashlight through the car window. Additionally, Okla. Stat. Ann. 21 § 1289.13 makes it unlawful to transport a loaded firearm over a public highway or roadway, subject to certain exceptions enumerated in 21 § 1289.6. Upon observing the weapon in the back seat of the car, the officer had probable cause to believe an offense had been committed and could validly seize the loaded pistol without a warrant under the standards of Carroll v. United States, supra.
Appellant’s third contention is that the trial court erred in denying appellant’s motion for a mistrial. When the deputy sheriff who seized the pistol was called to testify, the prosecuting attorney asked defendant ¿‘[H]ave you prior to this time testified in this court on a hearing on motion to suppress?” The question was never answered. Any possible prejudice was removed by the court admonishing the jury not to consider the question. Washington v. State, 227 Ark. 255, 297 S.W. 2d 930 (1957), and Howell v. State, 220 Ark. 278, 247 S.W. 2d 952 (1952).
Appellant next contends that the trial court erred in denying appellant’s motion for a directed verdict. Appellant’s only argument is that the testimony of a seventy-three year old woman, the victim of the robbery, was insufficient to sustain a verdict of guilty of robbery. This contention is absolutely meritless. The victim’s unequivocal identification of appellant constitutes ample substantial evidence to support the finding of the jury without detailing other corroborating evidence.
Appellant’s fifth contention is that the court erred in submitting the verdict forms to the jury. The jury was initially given three verdict forms: i.e., guilty of robbery, guilty of robbery with a firearm and not guilty. After finding the defendant guilty of robbery with a firearm, evidence was then introduced that defendant was previously convicted of other offenses or that he was a habitual offender. The jury was again instructed and sent out to deliberate with three verdict forms: (1) penalty verdict for robbery — no previous felony convictions (2) “Penalty Verdict For Robbery and Under Habitual Criminal Act” and (3) “Penalty Verdict For Use of Firearm.” The iury used the penalty verdict for robbery as a habitual criminal and imposed an eleven year sentence. On the separate penalty verdict form for the use of a firearm, the jury assessed an additional five and one-half years. Thus a total of sixteen and one-half years was imposed by both verdicts. Appellant contends that it was not the intention of the legislature that both statutes be applicable in the same case.
We perceive nothing contrary to legislative intent nor any violation of due process or double jeopardy in submitting both allegations: i.e., being a habitual offender (§ 43-2328) together with committing a felony with a firearm (§ 43-2336) to the jury. The former permits the jury to increase a minimum prescribed sentence when a previous conviction is properly shown. The latter provides an additional sentence of not to exceed seven years for one committing a felony by using a firearm. See also Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409 (1970). § 43-2337 provides that the period of confinement, if any, “shall be in addition to any fine or penalty provided by law as punishment for the felony itself, **** and shall run consecutively, and not concurrently, with any period of confinement imposed for conviction of the felony itself.” In the case at bar, the jury was permitted to consider evidence relating to the habitual offender act. As indicated, we find nothing inconsistent or unconstitutional in the jury separately considering and assessing the extra five and one-half years for committing the felony with a firearm. Based upon the separate verdicts, the court properly ordered the latter sentence to run consecutively to the first sentence as the legislature clearly directed.
Appellant next contends that the court erred in allowing the introduction of a South Carolina document to prove a previous felony conviction in that jurisdiction. § 43-2329 or our habitual criminal act provides that a properly authenticated certificate of conviction in another jurisdiction is admissible for purposes of increasing a minimum sentence in our state if that particular offense in the other jurisdiction would be punishable by imprisonment in the petitentiary in this state. Exhibit 2, which is in question, reads an “indictment for Larceny” to which appellant pled guilty and received eighteen months imprisonment in 1960 in South Carolina. The ambiguity about which appellant complains centers around whether appellant was indicted for grand or petit larceny. If the latter, then the conviction could not be used for habitual offender purposes in Arkansas. So. Car. Code § 15-352 (1962) provides that larceny of goods below $20 is a misdemeanor. The appropriate Arkansas statute [Ark. Stat. Ann. § 41-3907 (Repl. 1964)] breaks the felony misdemeanor distinction at $35.
Appellant was obviously charged under South Carolina’s grand larceny statute since he received eighteen months as punishment in the penitentiary. The South Carolina petit larceny statute contains a maximum imprisonment provision of thirty days in the county jail. However, it is impossible to determine from the indictment whether the crime appellant committed there would have been punishable by imprisonment in the Arkansas penitentiary. The South Carolina indictment does not reveal the value of the property stolen. For example, had appellant stolen property valued at $30, the crime would have been grand larceny in South Carolina and petit larceny in Arkansas. Therefore, since our statue is penal in nature and subject to a strict construction, the state did not meet its burden of adducing sufficient evidence that the South Carolina conviction would be punishable by imprisonment in the Arkansas penitentiary as our statute so clearly requires. We do not construe, as the state contends, that appellant did not sufficiently object to the admissibility of exhibit 2. Therefore, its introduction into evidence was manifestly prejudicial to appellant’s rights even though the jury in a colloquy with the court advised it had considered onlv exhibit 5 as constituting a felony, which appellant had admitted when he testified as to the correctness of the document. We cannot say with confidence and without speculation that áppellant’s eleven year sentence, based upon being a habitual criminal, and his additional sentence of five and one-half years for the use of a firearm were not enhanced or increased by the jury in its deliberations due to exhibit 2, which was inadmissible. We accordingly reduce both verdicts to a total of four years (three years minimum for robbery, plus one year for the admitted felony conviction) to remove all possibility of any prejudicial effect to the appellant. Should the state, through the attorney general, elect to accept this reduction within seventeen calendar days, the judgment is affirmed. Otherwise, it is reversed and the cause remanded. Richards v. State, 254 Ark. 760, 498 S.W. 2d 1.
We deem appellant’s objection as to exhibits 5 and 6 as being waived since the appellant does not favor us with a discussion of them in his argument.
Appellant next contends that the trial court erred in denying appellant’s motion for credit for approximately five months he was in jail awaiting trial. The appellant is an indigent and was unable to make bail. We deem it unnecessary to reach this issue in the case at bar inasmuch as by our per curiam order on November 13, 1973, we permitted this sole issue to be presented on two separate petitions pursuant to Criminal Procedure Rule No. 1. Should the appellant desire, he is permitted to file an amicus curiae brief on this issue. In the event we determine pre-trial incarceration credit is constituionally required for indigents, then he will be so entitled.
Affirmed upon acceptance of modification of judgment; otherwise, reversed and remanded. | [
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Darrell Hickman, Justice.
Harris was convicted of attempted capital murder and sentenced to twenty-five years. On appeal we remanded the case for the trial court to make a specific finding of whether Harris’ confession was voluntary. Harris v. State, 271 Ark. 568, 609 S.W.2d 48 (1980). The trial court heard additional testimony and held that the statement was voluntary and admissible.
We did not review the totality of the circumstances surrounding Harris’ statement on his first appeal and must do so now. The test we apply is whether, considering the totality of the circumstances, we can say that the trial court’s decision that the statement was voluntary is clearly erroneous. Dillard v. State, 275 Ark. 320, 629 S.W.2d 291 (1982); Tucker v. State, 261 Ark. 505, 549 S.W.2d 285 (1977).
Harris was certainly acting in a strange and bizarre manner the day he attempted to shoot a police officer. He had been spraying a mixture of orange juice and milk on a neighbor’s yard and she called the police. Harris shot at a police officer who tried to apprehend him. After a gun battle, Harris ran and hid in his house, surrendering two hours later.
Hariris was immediately taken to the police station and advised of his rights. He waived those rights in writing and thirty-five minutes later signed a short statement admitting that he tried to shoot the officer.
After entering a plea of not guilty and not guilty by reason of insanity, Harris was admitted to the Arkansas State Hospital. Thereafter Dr. W. R. Oglesby, Director of Forensic Psychiatry Services, wrote the trial judge that Harris was unable to stand trial because of his mental state; that he suffered from a mental disease or defect to the degree that he could not cooperate in his own defense and that he did not understand the criminality of his conduct. Harris was kept at the hospital and treated and a few months later was found competent to stand trial.
Dr. Oglesby and two psychiatrists who treated Harris all gave testimony at Harris’ trial and hearings that it was their unanimous conclusion that Harris was a psychotic paranoid schizophrenic and was so at the time of his arrest. Harris’ mother and brother testified that Harris had been ill for several years and described some of his bizarre behavior. Harris had never in the past been treated for a mental disorder, however.
Both of the officers who weré with Harris when he made his statement, and another officer who was present at Harris’ arrest, testified that Harris’ behavior was not unusual considering the circumstances; that he calmly acknowledged his rights, signed a waiver and answered their questions clearly and coherently. The officers said that they had been told Harris had a hearing defect, but that, otherwise, they knew of no physical or mental disorder and that he had not exhibited any signs of one. Police officers routinely deal with people who act in a bizarre manner but who are not necessarily insane.
The officers’ testimony directly contradicted the medical testimony that Harris was probably not lucid enough to knowingly waive his rights and make a voluntary statement and that Harris could not rationally follow a chain of questions without incoherent or rambling answers.
There is no evidence that the officers used any force, physical or otherwise. Harris’ statement was routinely transcribed and was completed within thirty-five minutes after Harris acknowledged and waived his rights.
Can we say as a matter of law that one diagnosed as a paranoid schizophrenic could not six weeks earlier have made a voluntary statement? Must we say that lay witnesses’ testimony that a person seemed normal and clearly seemed to understand questions has to be disregarded when it conflicts with medical testimony? We would have to answer both questions “yes” to reverse the trial court. Furthermore, there are few absolutes in the diagnoses of such individuals or the certainty of their condition on given days, and the medical witnesses in this case could not say more than what Harris’ condition probably was the day that he was ques-. tioned. Additionally, we cannot just ignore the trial court’s findings. Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974).
This case is easily distinguishable from Blackburn v. Alabama, 361 U.S. 199 (1960), where the United States Supreme Court overturned a conviction because the appellant, a former mental patient, had confessed after being interrogated nine hours by three officers in a tiny room.
We cannot say that the evidence in this case compels a finding that the trial court’s decision was clearly wrong.
Affirmed.
Purtle and Hays, JJ., dissent. | [
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Butler, J.
W. W. White and J. I. Wilkerson are farmers, each owning forty acres of land adjoining and separated by a partnership fence. Wilkerson had a small com field in a corner next to the division fence into which hogs entered and destroyed a quantity of corn. He brought suit against White alleging that the hogs causing the damag-e to his corn belonged to White and that they had gained entrance through the cross-fence which White had negligently failed to maintain so as to prevent hogs from breaking through.
It appears from the evidence that on or about the tenth of October, White and Wilkerson had a settlement for damage to Wilkerson’s corn prior to that date. It seems that Wilkerson had killed one of White’s hogs in his field, and he settled with White for this by paying the difference between the value of the hog killed and the value of the crop destroyed. Because of this settlement the court limited the jury to a consideration of the alleged damage accruing after that date.
The evidence was in dispute regarding the condition of the fence around Wilkerson’s forty and particularly as to the condition of the partition fence and as to the ownership of the hogs which destroyed the com. There was testimony to the effect that the condition of the fence was such as to permit hogs to break through from the outside, and there is some testimony that a very notorious* hog in that community was one of the principal offenders. This old sow was not the property of White, but belonged to Grandma White who lived on a different tract of land. There is nothing to show that this sow was not ordinarily a very quiet and well-conditioned old animal, but she had one bad habit and bore a very 'bad reputation in that community for breaking’ into farms, and it was said that she could go through almost any fence and did, in fact, depredate on Wilkerson’s property. The evidence is in conflict as to what was done to repair the partition fence, White testifying that he had fixed the fence sufficiently, while other witnesses testified that White admitted having overlooked one hole through which hogs might go and having failed to stop the same.
The character of the corn crop and its value was also a matter of dispute. Some testified that it was a good crop—would make from fifteen to twenty bushels per acre, and that about three acres were destroyed— and others testified that it was planted in raw new ground where green trees were still standing and had but little value.
In submitting the case, the court, at the request of the plaintiff, instructed the jury that if they should find from a preponderance of the evidence that the defendant negligently and carelessly left an opening in his fence, and that hogs of the defendant entered through the same and destroyed the crop of the plaintiff, it would be their duty to find for the plaintiff for the amount which the evidence showed he was damaged. The jury returned a verdict for the defendant, and Wilkerson appeals here and urges as error the action of the court in admitting certain testimony and misconduct on the part of the jury.
The abstract of the record furnished us by the appellant fails to show where any objection was made to the introduction of evidence or any exceptions saved to the ruling of the court. Therefore, we cannot consider any here. •
One of the grounds for reversal set up in the motion •for a new trial and here argued was that the jury wholly' disregarded the law given by the court, and that several members of the jury, while considering the case, stated that they had been justices of the peace and knew the law, and that, as the plaintiff did not have a lawful fence, he was not entitled to recover, and offered the affidavit of one Garner, who was in attendance upon the court and a member of the regular panel of petit jurors, to establish the above allegation. It is well settled that the verdict of the jury cannot be impeached by evidence of statements made by the jury, or any one of them, after the trial. Griffith v. Moseley, 70 Ark. 244, 67 S. W. 309 ; Barnett v. Western Assitrance Co., 126 Ark. 562, 191 S. W. 226 ; Arnold v. State, 150 Ark. 27, 233 S. W. 818. The reasons for this rule are stated in the cases cited and are so manifest that a re-statement is unnecessary. In our opinion the instructions of the court were more favorable to the appellant than he was entitled to. It was no more White’s duty to maintain the partition fence so as to prevent animals from passing through than it was the duty of Wilkerson. In the absence of any agreement, the obligation to maintain the fence was mutual and equally operative upon both (§ 4654, C. & M. Digest), and Wilkerson, finding that hogs were getting into his field, should have looked for the holes and stopped them himself.
The judgment of the trial court is correct, and it is therefore affirmed. | [
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Robert H. Dudley, Justice.
Appellant, Mary C. Jones, filed a petition seeking a declaration of her right of survivorship in a checking account. Appellees asserted their rights to the funds in the account as beneficiaries and representatives of an estate. The trial court held that appellant had failed to establish that the account was held jointly with right of survivorship. The appeal is here on certification from the Court of Appeals. We affirm.
On October 2,1973, Avis Lindsey and her husband, Claude, opened a joint checking account with right of survivorship. On October 19,1974, Claude Lindsey died and Avis Lindsey became the sole owner of the account. On December 11, 1974, Avis Lindsey and her niece, appellant Mary Jones, went to the bank. Avis Lindsey had her niece sign the same account card which she and her husband had signed on October 2,1973. Appellant signed on the same line on which Claude Lindsey had signed; however, Avis Lindsey did not sign the card again. Her earlier executed signature remained on the card, and no other changes were made. The account card clearly designates that it establishes a joint account with right of survivorship.
On January 22, 1979, Avis Lindsey executed her will. Paragraph thirteen (13) of the will provides that after the payment of debts, expenses, and specific bequests of $1,000 to Stoney Point Cemetery and $200 to Shiloah Cemetery, two of the appellees in this case, the balance of funds in her checking account was to go to her great-niece, appellee Robin Garner. The checking account named in the will is the same account for which appellant Jones signed the account card.
The question presented is whether the actions taken by appellant and the decedent were sufficient to establish a joint checking account with right of survivorship. The answer is that they were not.
Ark. Stat. Ann. § 67-552 (Repl. 1980) was in effect at the time the account was originally established in 1973, and also when appellant Jones’s name was added in 1974. Consequently, it governs the outcome of this case. See Martin v. First Security Bank, 279 Ark. 273, 651 S.W.2d 70 (1983). That statute provides in pertinent part:
67-552. Accounts and certificates of deposit in two or more names. — Checking accounts . . . may be opened ... by any banking institution with the names of two (2) or more persons, either minor or adult, or a combination of minor and adult, and such checking accounts, . . .maybe held:
(a) If the person opening such account, . . . designates in writing to the banking institution that the account or the certificate of deposit is to be held in “joint tenancy” or in “joint tenancy with right of survivorship,” or that the account shall be payable to the survivor or survivors of the persons named in such account or certificate of deposit, then such account. . . and all additions thereto shall be the property of such persons as joint tenants with right of survivorship. . . . The opening of the account... in such form shall be conclusive evidence in any action or proceeding to which either the association or surviving party or parties is a party, of the intention of all of the parties to the account... to vest title to such account . . . and the additions thereto in such survivor or survivors.
We have often held, that there must be substantial compliance with the designation in writing requirement of the statute in order to create a joint tenancy with right of survivorship. Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570 (1969).
When Claude Lindsey died, Avis Lindsey became the sole owner of the account. In order for her to create a new joint tenancy with someone else, it would have been necessary for her to demonstrate that intention in compliance with § 67-552. Even though the account card clearly states that it establishes a joint account with right of survivorship, the only person who signed the card on December 11, 1974 was appellant Jones. The decedent, Avis Lindsey, did not. Her signature was essential at that time in order to create the new joint tenancy relationship. As we have said many times, a survivorship deposit is closely akin to a will. Requiring all of the formalities associated with the execution of a will is necessary to safeguard the will’s validity. Consequently, it is also necessary that there be substantial compliance with the requirements of Ark. Stat. Ann. § 67-552 (Repl. 1980) in order to safeguard the validity of survivorship accounts that were established while it was in effect.
Appellant cites the case of Penn v. Penn, 284 Ark. 562, 683 S.W.2d 930 (1985) in support of her position that it was not necessary for Avis Lindsey to re-sign the account card, nor for her to sign a new card in establishing the joint tenancy. Penn, however, is distinguishable from the facts of the instant case. In Penn, the issue before this Court was whether there was a sufficient designation in writing to comply with Ark. Stat. Ann. § 67-1838 (Repl. 1980) so that certificates of deposit belonged to the survivor, rather than to the estate of the decedent. Ark. Stat. Ann. § 67-1838 (Repl. 1980) contained a “designate in writing” requirement almost identical to that in Ark. Stat. Ann. § 67-552 (Repl. 1980). Guthrie Penn had purchased two (2) $30,000 CD’s from a savings and loan association. The CD’s were issued to Guthrie Penn or Patricia Penn, his daughter-in-law, and they both signed a signature card relative to each CD stating that the account was held in joint tenancy with right of survivorship. As the CD’s matured, Patricia Penn would surrender the old CD’s. New CD’s would be issued to Guthrie Penn or Patricia Penn to replace the matured CD’s. No new signature cards were signed. The existing signature cards were simply altered with a white substance obliterating the old numbers and dates with new numbers and dates typed in. Gutherie Penn did not come to the savings and loan office on the occasions when the CD’s were surrendered and reissued. We held there was substantial compliance with the designation in writing requirement.
The distinguishing feature of Penn is that both parties signed the account card at the time the tenancy relationship was established. That relationship never changed even though the CD’s matured and were surrendered and replaced through the years. In the instant case, the decedent signed the card at the time a joint tenancy relationship was established with Claude Lindsey; however, that joint tenancy relationship ended with his death. She never signed the card to establish a joint tenancy with appellant. Consequently, the designation in writing requirement of Ark. Stat. Ann. § 67-552 (Repl. 1980) was not met.
Although there was testimony that the decedent, Avis Lindsey, had intended for the funds in the checking account to go to appellant when she died, there was not substantial compliance with the statutory requirements to effectuate that intention. Accordingly, the funds in the checking account became a part of Avis Lindsey’s estate and must pass in accordance with the terms of her will.
Affirmed.
Hickman, Purtle, and Glaze, JJ., dissent. | [
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George Rose Smith, J.
Tbis is a proceeding instituted by tbe executor of tbe will of Dr. J. W. Pennington, to obtain a construction of tbe residuary clause. Tbis clause reads: “Tbe Bal. to be divided equally between all of our nephews and nieces on my wife’s side and my niece, Natbalee Pennington, of Lawrenceburg, Tennessee.” Tbe trial court construed tbe will as giving balf tbe residuary estate to tbe appellee, Natbalee Pennington. Tbe twenty-two appellants, who are tbe testator’s nephews and nieces on bis wife’s side, contend that tbe property should be distributed equally among all tbe beneficiaries, so that tbe appellee would receive a twenty-third instead of a balf.
We agree with tbe trial court’s conclusion. To begin with, tbe testator used tbe word “between,” which in its literal sense applies to only two objects, as “between Scylla and Cbarybdis. ’ ’ If tbe reference is to more than two tbe preposition should be “among.” Webster’s New International Dictionary. In several cases tbe courts have stressed tbis distinction in bolding that language such as that now before us contemplates a division of tbe legatees into two classes. In re Moore's Estate, 157 Pa. Super. 296, 43 A. 2d 359; Roelf’s Cousins v. White, 75 Ore. 549, 147 P. 753.
It is probably true, however, that most people do not habitually observe the distinction between the two words. For that reason we do not rest our decision on this point alone but prefer to treat this as a case of ambiguity. We may therefore look to the state of the testator’s feelings toward the various beneficiaries as an aid in arriving at his intention. Rufty v. Brantly, 204 Ark. 32, 161 S. W. 2d 11. There was testimony showing that Dr. Pennington had a warm affection for Nathalee. The two wrote to each other often, and he had visited in her home in Tennessee. Dr. Pennington had sent Nathalee various gifts, including a fountain pen, a $500 United States bond, and $10 a month when she was ill for five months. At the trial Nathalee described herself as her uncle’s favorite niece.
This evidence confirms our belief that Dr. Pennington meant for half of his residuary estate to go to Natha-lee and for the other half to be divided among the appellants. It is not without significance that Dr. Pennington described the appellants merely as a class, apparently not caring whether the class increased or decreased in number before his own death. Nathalee, on the other hand, was singled out for individual mention. This different treatment may well have been due to the fact that Dr. Pennington did not entertain for each of the twenty-two appellants the same close affection that he had for Nathalee.
Finally, a per capita distribution among all twenty-three litigants would be a somewhat unnatural division of the estate. Many men feel that property acquired during marriage belongs jointly to the husband and wife, no matter which one holds the legal title. Consequently it is not at all unusual for a childless widower to divide his estate equally between his own family and that of his wife. We think it much more likely that Dr. Pennington intended such a division than that he meant to give twenty-two twenty-thirds to his wife’s relatives and only one twenty-third to Ms own kin. Thus the literal meaning of the language, the state of the testator’s affections, and a natural distribution of the estate all point to the construction adopted by the trial court.
Affirmed.
Holt and Dunaway, JJ., dissent. | [
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Conley Byrd, Justice.
In April, 1971, Earl Eugene Murphy, the appellant herein, entered a plea of guilty to a charge of robbery and was sentenced to 18 years. At the time of this sentence a charge of assault with intent to kill was pending against appellant. Following his incarceration for robbery, appellant’s motion for a speedy trial on the assault with intent to kill charge was granted. Appellant was tried before a jury and found guilty of this charge which grew out of the appellant’s shooting of the operator of the service station which he had robbed. The jury set appellant’s punishment at 21 years, and the court entered judgment ordering this latter sentence to run consecutively with the previous one.
No appeal was taken from this conviction, but appellant petitioned for post conviction relief under our Rule One procedures and was granted a hearing. The trial court denied all relief on the Rule One.
For reversal appellant contends that he should be granted a trial on the robbery charge to which he pleaded guilty. Appellant bases this contention on the allegation that he was under the influence of drugs at the time of the hearing at which he changed his plea from not guilty to guilty. Therefore, appellant argues, his plea was involuntary and should not have been accepted by the trial court.
Appellant testified at the Rule One hearing that he had concealed several capsules of “RJS”, a drug that “lifts your spirits”, on his body at the time of his arrest by taping them under his arm pit. He testified that he took the last one of these capsules the night before he went to court and changed his plea to guilty. He further testified that, as a result of the effects of this drug, at the time of entering his plea of guilty he did not know what he was doing and was not himself. Appellant in his brief argues that there is no showing that his plea of guilty was freely and understanding^ entered, and it therefore must be taken to have been involuntarily made.
We find no merit in this contention. The record of the Rule One hearing indicates that appellant recalled that the judge before whom the plea was entered had asked him if he was under the influence of alcohol or drugs, and appellant’s response was that he was not. Appellant was represented by court appointed counsel at the time of the plea. Counsel testified at the Rule One hearing that he had thoroughly discussed the nature and consequences of a plea of guilty with appellant prior to the entry of the plea, and that on the day of the plea appellant appeared normal and never indicated in any manner that he was under the influence of drugs.
It should be noted that there is nothing in the record which tends to inpugn the voluntariness of the guilty plea other than appellant’s own testimony at the Rule One hearing. See Parker v. State, 254 Ark. 878, 496 S.W. 2d 450 (1975). The balance of the record relative to this point indicates that the plea was voluntarily and understanding^ entered, and that the judge before whom the plea was entered made thorough inquiries as to the vol-untariness of the change in plea.
Appellant’s other point for reversal concerns the voluntariness of a confession introduced at the trial of the assault with intent to kill charge. Appellant argues that the trial court made no specific finding that the confession was voluntary. We find no merit in this contention. In the first place the record does not reveal any request by the appellant that the trial court make a specific finding on the voluntariness of the confession. Ballew v. State, 249 Ark. 480, 459 S.W. 2d 577 (1975). Furthermore, appellant did not raise the issue in his Rule One Hearing from which this appeal was taken. Bailey v. State, 254 Ark. 628, 495 S.W. 2d 150 (1975).
In any event the record reveals that an in-chambers hearing was held prior to the introduction of evidence of the confession. This hearing was held after the jury was sworn and prior to any testimony being taken, and the record shows that its purpose was to determine whether appellant had been advised of his rights prior to making statements to the sheriff and the deputy prosecutor subsequent to his arrest. At this in-chambers hearing the deputy prosecuting attorney and the sheriff testified that prior to making any incriminating statements the appellant had been advised of his right to have an attorney of his choice present or to have an attorney appointed for him. At the end of this hearing the trial judge said:
“The court holds that the defendant was appraised of his rights, that he understood them — that he intelligently understood them — and that he waived them.’’
Even if the appellant had properly raised the issue of the voluntariness of the confession in his Rule One petition, the in-chambers hearing conducted by the trial court was sufficient to satisfy the requirements of Ark. Stat. Ann. § 43-2105 (Supp. 1971), which provides for procedures to insure compliance with the constitutional requirement of a Denno hearing. Furthermore, the witnesses called by appellant at his trial testified to confessions he had made without objection.
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J. Fred Jones, Justice.
George D. Marr, a member of the Fort Smith Fire Department, was suspended from duty for a period of fifteen days without pay for violation of chapter 10, §§ 16 and 30, paragraph J, of the fire department rules and regulations. On appeal to the Civil Service Commission the suspension was approved for violation of § 16 of the rules, and on appeal to the circuit court the decision of the Commission was affirmed. On this appeal from the circuit court judgment, Mr. Marr contends that he did not violate the rules and regulations of the fire department and also contends that the rule he is alleged to have violated is unconstitutional as applied to his actions in violation of his First Amendment rights. We shall not discuss the substantiality of the evidence pertaining to the alleged violation because we agree with Mr. Marr as to his second contention.
Sectión 16 of chapter 10 of the fire department rules and regulations reads as follows:
“Members that have any matter that pertains to the Fire Department and to be taken up with any City Official shall first submit the same to his superior officer and the matter shall be handled thereafter through the chain of responsibility.”
As background for Mr. Marr’s alleged rule violation, it appears that the board of directors of the City of Fort Smith had passed an ordinance pertaining to overtime pay and optional “equalization” pay in lieu of legal holidays, and it appears there was considerable difference of opinion among the firemen, as well as others, as to the method to be employed in calculating the equalization pay for firemen under the provision of the ordinance. It appears that Mr. Marr was dissatisfied with the results of the method being employed under the provisions of the ordinance and so advised two of the city directors by telephone, as well as his Congressman in Washington and the Governor of the state by letters, without first submitting the matter to his superior officer in the fire department, so that the matter could be handled thereafter through the chain of responsibility under the provisions of § 16 of chapter 10, supra.
None of the witnesses seemed to know what Mr. Marr said in his telephone conversations with the city directors or in his letters to the Governor and Congressman. Mr. Marr admitted that he expressed his dissatisfaction with the ordinance when interviewed on television, but there is no evidence that any city official, or anyone else except Mr. Marr, saw the interview when it was placed on the air. The only evidence as to what Mr. Marr did say is contained in a letter from Director Stocks to City Administrator Keheley, a portion of which was read into the record as follows:
” ’Dear Mr. Keheley: By telephone conversation at home, Mr. Marr advised me that he was a member of the Fort Smith Fire Department and inquired if I was familiar with the Memorandum sent to the Fire Department personnel concerning the recent action of the Board of Directors in authorizing equalization pay for firemen, pursuant to State Law and advice of counsel. He stated that he had written letters to his Congressman and to his Governor and that he is completely dissatisfied with the fact that the result is only one-half time for overtime pay and presumes that the matter will have to be presented to the voters in view of our recent action in increasing the firemen’s pay of 10% and authorizing an additional increase as a result of the written demand for the attorney representing seventy-six firemen. I now request the full self study of the Fire Department, including the basis and the need for the number of firemen employed, the Fire Underwriters requirements, and further request that I be advised of the number of Fort Smith firemen who are gainfully employed elsewhere. The study should also include the number of hours that each fireman averages working during the year, the number of days off, the number of fire calls and the number of fires actually covered, the result which are —.’ ”
It is obviously apparent that § 16 of chapter 10 of the rules, supra, is vague and indefinite as to what constitutes the “matter” it refers to, but we are of the opinion that it could have no application to personal complaints made to city directors concerning municipal legislation pertaining to firemen’s pay or vacation rights. It is evident from the testimony in the record that Mr. Marr’s superiors in the “chain of responsibility” would have been first, his Captain, Sherman Ross; then next the Assistant Fire Chief, Petway; and finally Superior Fire Chief Bevel. The record is not clear as to the nature of the matters, or as to method of handling them, through “the chain of responsibility” after the same has been submitted to a superior officer under the rule. It is not clear from the record whether Mr. Marr’s grievances, complaints or opinions were to have been conveyed to the intended city official through the chain of responsibility after being submitted to his captain, or whether the rule simply re quired him to first obtain permission from his superiors before discussing the matters he did discuss with Directors Stocks and Crompton. The phrase “shall be handled thereafter” would indicate that the entire “matter” would be heard, considered and determined, or disposed of, within or through, the “chain of responsibility.”
It would appear that § 16 of chapter 10, supra, might have been designed or intended for such matters as interdepartmental rules, orders and regulations promulgated by the officers of the fire department, but as § 16 is now written, we are of the opinion it is unconstitutional as applied to Mr. Marr’s actions as reflected by the record in this case.
Because of the vagueness of the term “matter” re-, ferred to in the rule, we have encountered difficulty in finding precedent one way or the other on the subject. In the Iowa case of Klein v. Civil Service Comm’n of Cedar Rapids, 152 N.W. 2d 195, the Supreme Court of Iowa had on appeal by certiorari, the action of the Civil Service Commission sustaining the suspension of a fireman for disobedience of orders and violation of the rules of his fire department. The specific rules, 23 and 24, in that case were set out in the opinion as follows:
“Rule 23 provides: ‘All matters pertaining to or affecting the Department proposed or contemplated by members must be submitted to the Chief for approval and action.’
Rule 34 provides: ‘No member of the Department shall give out any information relative to the Department, its operations, equipment and so forth unless permission by the Chief has been granted.’ ”
The violation in that case consisted of the fireman giving news releases without first clearing such releases with his chief. The Supreme Court of Iowa held that in the absence of proof that the releases impaired public service, the suspension was improper. The court in Klein then reviewed a number of decisions from other jurisdictions pertaining to the constitutionality of such rules and regulations and concluded as follows:
. . the news release of August 5, 1964, by plaintiffs represented nothing more than an exercise of their constitutionally protected right of free speech regarding a labor dispute for which, in the absence of a showing of impairment of public service, they should not have been punished.
To the extent rules 23 and 34 authorize such punishment they are too broad, rigid and unreasonable. Under the fact their enforcement was arbitrary and capricious and therefore illegal.”
See also In re Gioglio, 248 A. 2d 570.
We conclude, therefore, that § 16 of chapter 10, supra, as written, and as it now stands, is unconstitutional as applied to Mr. Marr’s conduct as set out in the record in this case, and that the judgment of the trial court should be reversed.
The judgment is reversed.
Fogleman, J., concurs. | [
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John A. Fogleman, Justice.
Appellee has raised a question about the timeliness of the notice of appeal in this case, which we must first consider because it goes to the jurisdiction of this court. Davis v. Ralston Purina Company, 248 Ark. 14, 449 S.W.2d 709. The jury verdict was rendered on November 29, 1972. Judgment was filed on December 13, 1972. Thereafter, on December 15, 1972, appellant filed a motion for new trial. A response thereto was filed by appellee on December 21, 1972. The motion was taken under advisement by the circuit judge on January 10, 1973, and denied on February 6, 1973. Notice of appeal was filed on February 7, 1973.
Notice of appeal must be filed within 30 days from the date of the judgment. Ark. Stat. Ann. § 27-2106.1 (Repl. 1962). This time may be extended, however, by the timely filing and disposition of a motion for new trial. Ark. Stat. Ann. §§ 27-2106.3 and 2106.4 (Supp. 1971). Motion for new trial must be filed within 15 days after the verdict, unless that time expires after adjournment or expiration of the term, in which event, it must be presented to the trial judge within 30 days after the verdict was rendered. Ark. Stat. Ann. § 27-1904 (Repl. 1962). It is clear that the time runs from the date of the verdict and not the date of the judgment. Henderson v. Skerczak, 247 Ark. 446, 446 S.W.2d 243.
It can be readily seen that the motion was filed more than 15 days after the verdict and was not presented to the circuit judge until more than 30 days had elapsed. The term of court continued without adjournment until the first Monday in March, 1973. Ark. Stat. Ann. §§ 22-310, 312 (Repl. 1962). Consequently, presentation of the motion was not required within 30 days after the verdict was returned, if the motion was timely filed. This was not the case unless the taking of the motion under advisement had the effect of extending the time for filing of the motion. We have held that the circuit judge has the authority to extend the time for filing of such a motion. Peterson v. Brown, 216 Ark. 709, 227 S.W.2d 142; Metropolitan Life Ins. Co. v. Thompson, 203 Ark. 1103, 160 S.W.2d 852. If the circuit judge considers a tardily filed motion for new trial, we presume, in the absence of a showing to the contrary, that it was filed with permission of the court, and that the considerations for permitting the late filing were legally sufficient, at least when the motion is filed and considered and acted upon within the term of court during which the verdict was rendered. Hill v. Wilson, 216 Ark. 179, 224 S.W.2d 797; Marshall Bank v. Turney, 105 Ark. 116, 150 S.W. 693; Fitzhugh v. Norwood, 153 Ark. 412, 241 S.W. 8; Fordyce v. Hardin, 54 Ark. 554, 16 S.W. 576. Here the verdict was rendered and the motion filed, considered and overruled during the same term of court. Not only is there a failure to show that the court did not permit the late filing or that there were no legally sufficient grounds for doing so, but appellee filed a response to the motion without any mention of its late filing.
Since we must presume that the motion was timely filed, insofar as the requirements of Ark. Stat. Ann. § 27-1904 are concerned, the provisions of Ark. Stat. Ann. §§ 27-2106.3, 2106.4 and 2106.5 (Supp. 1971) come into play. The motion was filed within two days after the entry of the judgment, so the requirements of Ark. Stat. Ann. § 27-2106.3 were met. The circuit judge took the motion under advisement within 30 days after it was filed, so the requirements of § 27-2106.4 were met. The notice of appeal was filed one day after the motion was denied, so the requirements of § 27-2106.5 were met. Since the notice of appeal was given within the time allowed, we consider the appeal on its merits.
We reverse this judgment in favor of a real estate purchaser and against the seller’s real estate agent for want of substantial evidence, bypassing other points asserted by appellant, because appellee has correctly pointed out that the pleadings, motion to dismiss, motion for a directed verdict and other pleadings and orders are not sufficiently abstracted. Viewing the evidence (which does appear to have been adequately abstracted) in the light most favorable to the judgment, the facts are as follows:
Peek is a licensed real estate broker. He had a listing from Douglas E. and Marjorie K. McGriff of Hartford, Iowa, for the sale of a tract of land near Mountainburg on which a motel, service station, cafe and other buildings were located. Hoyt Mea-dors, then a resident of California, observed, while visiting in the community, that the property, of which he had known for many years, was for sale. After his return to California, he authorized his cousin O. D. Meadors to enter into negotiations on his behalf to purchase the property. O. D. Meadors went to view the property with Peek and asked about various items.. When they came to a locked garage building on the premises, both looked through cracks in the door and saw various tools. O. D. Meadors then asked Peek if the items he observed were included in the sale and Peek replied that they were, and that everything on the place went. Peek said that for some reason he did not understand he had the keys to all the buildings except this one, but that he would break the lock on it if necessary. O. D. Meadors replied that it was not, and later signed an “offer and acceptance” on a printed form on which the description of the property was filled in as “LAKE-ENTRANCE-CAFE-MOTEL WITH-ALL-EQUIPMENT - IN-BLDGS.” On the next day the McGriffs signed an acceptance of this offer. Before the final closing, Hoyt Meadors revealed to Peek that he was the actual purchaser of the property and asked that he be permitted to personally view the property before the sale was completed. Peek and Hoyt Meadors went to the property and inspected it. Upon coming to the locked garage building, Hoyt Meadors asked particularly if they could enter it and see what was in it. Peek did not have a key, so he got a sledge hammer from his automobile parked nearby, and Hoyt Meadors obtained a claw hammer. Hoyt Meadors broke the lock off the door at the direction of Peek, entered the building and observed a 10-inch table saw, a cement finisher, various hand tools, three gallons of paint and a square of rubber roofing. Hoyt Meadors specifically asked Peek if these items were included in the sale. Peek replied that they were, saying that he did not know where they came from or why they were there, “but they all go, everything you see goes with the deal.” Peek never specifically asked the McGriffs whether these items, shown to have a value of about $600, were a part of the property being offered for sale. After the sale was closed, these items were reclaimed by Don Valliquette, who had stored them in the building with approval of McGriff. There is no evidence that Peek had any actual knowledge about the real ownership of the items about which the controversy arose. At the closing of the sale, which took place the day following the visit of the premises by Hoyt Meadors and Peek, no mention was made of the questioned items. Meadors did not ask McGriff about them because he relied on Peek’s representations.
Peek testified, over appellee’s objection, that he was authorized to sell all the equipment in all the buildings. Although this testimony of appellant could not be taken as uncontradicted, it is corroborated by the inescapable inference that he was so authorized, arising from the written acceptance of the Meadors offer by the sellers, with the express description of the property including “all equipment in buildings.”
The principal, and not the agent, is liable upon the contract, where the agent is duly constituted, names his principal, contracts in the principal’s name and does not exceed his authority. Brown v. Maryland Casualty Company, 246 Ark. 1074, 442 S.W.2d 187. As a basis for liability of the agent, appellee relies upon the doctrine of constructive fraud set out in Lane v. Rachel, 239 Ark. 400, 389 S.W.2d 621, wherein we held, as we have in other cases, that one, not knowing the truth, who makes a representation which is false, may be liable to one to whom he owes a legal or equitable duty, even though there is a complete absence of any moral wrong or evil intention. The misrepresentation generally involves a mere mistake of fact. Kersh Lake Drainage District v. Johnson, 203 Ark. 315, 157 S.W.2d 39. Ah though an agent might well be liable to a third person for legal or constructive fraud, we' do not think that the evidence in this case supports such a liability. In Brooks v. Smith, 215 Ark. 421, 22 S.W.2d 801, we held that an agent was not liable to a third party where his representation to the buyer was only a repetition, in good faith, of a statement authorized by his principal. There is no evidence from which a lack of good faith or the existence of a deceitful intent on Peek’s part could be inferred. As we have pointed out, the evidence shows that Peek’s authority was to sell all equipment in the buildings on the premises, and he was relying upon that authority in making the statements relied upon by the purchaser. Under these circumstances, the rule stated in Brown v. Maryland Casualty Company, supra, applies, and the judgment lacks substantial evidentiary support.
Accordingly, the judgment is reversed and the cause remanded. | [
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Richard B. Adkisson, Chief Justice.
The Pope County Circuit Court held on motion for summary judgment that appellant, Farmers Mutual Insurance Company, hereinafter Company, was liable to appellees, Albert and Carolyn Lane, for a statutory 12% penalty and attorneys’ fees pursuant to Ark. Stat. Ann. § 66-3238 (Repl. 1980). The trial court held the Company had failed to make timely payment, after demand, according to the terms of a fire insurance policy in which the appellees were the named insured. On appeal, we affirm.
Although appellees were the insureds under the policy, a Mrs. Wesley Smith was named in a mortgage clause of the policy as a loss payee. This clause stated that even if the policy were cancelled, it would remain in effect as to Mrs. Smith for ten days after notice to her of any cancellation.
Mrs. Smith was a previous owner of the insured property. She had sold the property to Eddie and Joyce Snyder who in turn sold it to appellees. Both transfers were by escrow agreement with Mrs. Smith as the record titleholder of the property until the payments under the escrow agreement were completed.
The insured property was damaged by fire on September 19, 1979, and appellees demanded payment pursuant to the policy. The Company refused, contending that the policy had lapsed because of nonpayment of the premiums. Three months later appellees filed suit against the Company to force payment, naming Mrs. Smith as a defendant and requesting her rights under the policy be declared. On October 31, 1980, defendant Smith filed a cross-complaint against the Company alleging that the policy was in effect as to her interest and demanding payment in full.
In February of 1981, appellant paid Mrs. Smith the full amount of the policy plus interest. However, Mrs. Smith did not collect the 12% penalty and attorneys’ fees because she had agreed with appellees that they, as the insureds under the policy, were entitled to that amount.
Appellees base their right to 12% penalty plus attorneys’ fees on Ark. Stat. Ann. § 66-3238 (Repl. 1980) which provides:
In all cases where loss occurs and the cargo, fire, marine, casualty, fidelity, surety, cyclone, tornado, life, health, accident, medical, hospital, or surgical benefit insurance company and fraternal benefit society or farmers’ mutual aid association liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such person, firm, corporation and/or association shall be liable to pay the holder of such policy or his assigns, in addition to the amount of such loss, twelve percent (12%) damages upon the amount of such loss, together with all reasonable attorneys’ fees for the prosecution and collection of said loss; . . .
The plain wording of the statute makes the Company liable to the “holder” of such policy, the appellees herein, for 12% penalty and reasonable attorneys’ fees in addition to the amount due under the policy where, as here, payment is not timely after demand is made.
Appellant argues, however, that the insureds should not have been awarded the penalty and attorneys’ fees under this statute because they were no longer insured under the policy. We do not agree. The appellees were the named insureds under the policy and, as such, were entitled to have the Company make payment to the loss payee, Mrs. Smith, in accordance with the terms of the policy. This is so even though appellees’ rights may have lapsed as to some other provisions of the policy. Only one policy exists in exchange for the premiums paid by the insured. It does not matter whether the actual payment under the policy is made to the insured or to the loss payee in order for the insureds to be entitled to the statutory penalty and attorneys’ fees when payment by the Company is late. Farm Bureau Mutual Ins. Co. v. Shaw, 269 Ark. 757, 600 S.W.2d 432 (Ark. App. 1980).
Appellant argues that appellees are not entitled to the statutory penalty and attorneys’ fees because the loss payee never “demanded” payment as required by the statute. This argument fails because the insureds made the necessary demand, and we know of no reason why the loss payee must also demand payment. In any event there was no offer to pay the loss payee prior to suit; the Company actually denied liability to everyone under the policy until less than three weeks before trial when it paid the loss payee the full amount of the policy. Cf. Valley Forge Ins. Co. v. Carner, 277 Ark. 447, 642 S.W.2d 317 (1982). Here, the demand by the insureds was sufficient to put appellant on notice that it should pay in accordance with the terms of the policy.
Appellant also argues that the insureds are not entitled to the penalty and attorneys’ fees because there is an insufficient relationship between Mrs. Smith, who received the insurance proceeds, and the insureds. This argument ignores the express terms of the insurance contract between the Company and the insureds whereby Mrs. Smith was named as a loss payee.
Lastly, appellant argues that the trial court erred in reconsidering appellees’ motion for summary judgment after overruling it at an earlier date. The record reflects the trial court reversed himself on the motion for summary judgment after hearing argument of counsel. We find no error.
Appellees’ request for allowance of $900 attorneys’ fees on appeal is granted.
Affirmed.
Purtle, J., dissents. | [
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Mehaffy, J.
This suit was begun by John Wegman, a nephew of Conrad Wegman, deceased, to have the will of Conrad Wegman construed and to have that part of said will which attempted to create a trust, declared void. Earl S. Witten, the appellant, is a nephew of Ettie Wegman, deceased, and claims the property mentioned in said will as the heir at law of said Ettie Wegman. Earl 5. Witten was made a party defendant and filed answer and cross-complaint and prayed that the title to the property be declared to be in him and that the complaint of plaintiff and cross-complaint of William Wegman be dismissed. The other defendants answered, and defendant William Wegman, who was the brother of Conrad Wegman and the owner of an undivided one-half interest in the property, filed answer and cross-complaint and prayed that the property be partitioned. Plaintiff filed a demurrer to the answer and cross-complaint of Earl S. Witten. Numerous pleadings and amendments were filed 'by the parties, but it is not necessary to set them out, as the only question involved is the right of appellant to the property in question. Appellant states, “The construction of the third paragraph of Conrad Wegman’s will determines appellant’s right to the property in question. The trust void, in whom did title to the property vest upon testator’s death?”
We agree with appellant in this statement. By the second paragraph of the will, Conrad Wegman gave to his wife, Ettie Wegman all of his personal property. The third paragraph of the will is as follows: “My brother, William Wegman, and myself are the owners of lot No. seventeen, south side of Garrison Avenue, Fort Smith, Arkansas, and the 'building thereon and also a fractional lot in the rear of lot seventeen, inherited from our parents, and it is my will that my half interest in the said real estate shall go to my said wife, and it is hereby bequeathed to her for and during her natural life, out of which she is to enjoy the rents and profits during her lifetime; and in the event she should agree with my said brother to. sell the same, it is my desire that the proceeds of the sale be put in, a trust fund, out of which fund my said wife shall receive the interest during her natural life, and at her death it is my will that the property mentioned in this paragraph shall gn toward building a home for old and dependent women in the city of Fort Smith, Arkansas, named for and in honor of my sainted mother, Mary Wegman.” The special trustee filed pleading and prayed that the complaint be dismissed, and that said will in all respects be upheld.' He alleged that the trust created by the will was a legal, valid and subsisting trust and capable of being carried into effect. He did not appeal from the decision against him. The chancellor held that all the right, title and interest of Ettie Wegman in the property terminated upon her death, and that the provisions of said will whereby the testator áttempted to create a trust are insufficient to create a trust and are null and void; that upon the death of Conrad Wegman the title to the property involved vested in the heirs-at-law of the said 'Conrad Wegman. The third paragraph of the will provides that upon the death of Ettie Wegman, “It is my will that the property mentioned in this paragraph shall go toward building a home for old and dependent woman in the city of Fort Smith. ’ ’ It will be observed that no one was appointed or authorized to be appointed to direct how and according to what plans the home should be built or to accept it when built. The property was not bequeathed or devised to anyone. The beneficiaries were not named. The devise for the home is too vague, indefinite and uncertain to be capable of enforcement. Ingram v. Sutherland, 89 Ark. 596, 117 S. W. 748 ; Wallace v. Wallace, 179 Ark. 30, 13 S. W. (2d) 810 ; Booe v. Vinson, 104 Ark. 439, 149 S. W. 524.
The provision attempting to create a trust being void, in whom did title to property vest upon testator’s death? Appellant cites and relies on Booe v. Vinson, 104 Ark. 439, 149 S. W. 524. In that case the court said: “It was his evident purpose to provide at least such income for the maintenance of the legatees for the time specified, for the last of the sentence shows that at their death ‘what is left, if anything, be used for charitable purposes, ’ indicating a desire only that what remained of the estate, after the distribution to appellees, if anything there was, should be diverted to another purpose.” The language of the will in the Booe case was: “All my estate, real, personal and mixed, I give and bequeath to my aunt, Mrs. Carrie Vinson, and her daughter Bennie Vinson, subject to the following conditions and bequests.” That is, he gave the legatees named his entire estate subject to the conditions named. He did not undertake to limit it to their natural lives. Again it is said in the Booe case: “'Nowhere is there anything expressed in the will to indicate that, if it had been known to the testator that the gift of charity would fail, he would not have been willing for appellees to have absolute control and ownership of all the property given them.” Moreover, the legatees in the will construed in the Booe case were the sole and only heirs at law of said testator. In the instant case the property was bequeathed to Ettie Wegman for and during her natural life. It was clearly the intention to bequeath a life estate only.
The case of Stewart v. Jones, 219 Mo. 614, 118 S. W. 1, 131 Am. St. Rep. 595, and the case of Provenchere’s Appeal, 67 Pa. St. 463, relied on by appellant, announce the doctrine that the object in construing wills is to ascertain the intention of the testator. This is the rule in this State. We said in the case of Booe v. Vinson, supra: “The purpose of construction of a will is to ascertain the intention of the testator from the language used as it appears from consideration of the entire instrument, and, when such intention is ascertained, it must prevail if not contrary to some rule of law, the court placing itself as near as may be in the position of the testator when making the will. ’ ’
The next authority relied on by appellant is 40 Oyc. 1410. It is there said: “The presumption against partial intestacy, however, arises only where an intention to pass the whole estate is expressed in some form, and it cannot avail where the language used by the' testator is plain and unambiguous; and hence the presumption may be rebutted and intestacy upheld as to part of the estate where it is clearly apparent from the will that the testator did not intend to dispose of all his estate by will.”
It is also said in 40 Cyc. 1412: “Where any ambiguity exists in a will, unless there is a manifest intention to the contrary, the presumption that the testator intended that his property should go in accordance with the laws of descent and distribution will be applied as an aid in construing the will; hence such a construction should be given the will as favors the heirs at law, or next of kin, in preference to disinheritance, or to strangers, or persons not so closely related to the testator, and heirs at law will not be disinherited by mere conjecture, but only by express words in the will or by necessary implication arising therefrom.” In the will here involved it is clearly stated that the wife shall have a life estate, and it would be unreasonable to hold that the testator intended, if the trust failed, that strangers rather than his next of kin should take his property. In the absence of provision to the contrary, the property included in a trust will pass to the heir or next of kin of the testator rather than to strangers. 40 Cyc. 1818 ; 26 R. C. L. 1216.
The testator gave his wife a life estate only, and when the trust failed, his property, at the death of the life tenant, goes to his heirs. The decree of the chancery court is affirmed. | [
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Darrell Hickman, Justice.
This is a simple battery case. The parties were both truck drivers for Arkansas Best Freight, and during a layover in Dallas, Texas, they had an altercation in a bar. Actually, only one blow was struck; Whitlock hit Smith in the face with his fist. The blow fractured Smith’s cheekbone, requiring two surgeries. Smith lost twelve or thirteen weeks of work as a result of the injuries and resulting complications.
Whitlock did not deny striking Smith, but he contended that the blow was struck in self-defense. Another truck driver, Larry Bradbury, was an eyewitness, and his version of the events in Dallas could have been taken by the jury to support Smith’s account, that the blow was unprovoked. The jury believed Smith’s version and awarded him $24,414.00.
The appeal presents three legal questions. We conclude that the judgment should be affirmed.
First, the appellant’s lawyer, an experienced trial advocate, questioned the judge’s interruption of his examination of the eyewitness Bradbury. It is argued that the trial judge commented on the evidence, violating Ark. Const, art. 7, § 23 (1874).
During a critical part of Bradbury’s testimony involving Smith’s actions when Whitlock had left his seat to approach Smith, the following exchange took place before the jury:
[Defense counsel]
Q. Was he [Smith] straddling the chair?
A. Yes.
Q. He stood from the straddle position?
A. Yes, sir.
The Court: I gather you didn’t know if he was headed for the door or not?
A. I didn’t know what was going on.
The Court: This man [Whitlock] asked him to leave?
A. Yes, sir.
The Court: You didn’t know if he was leaving or not?
A. No. sir. But at that point by him asking that and standing —
At that point Whitlock’s lawyer asked for a mistrial. While the judge perhaps should have let the lawyer finish his examination and try his case, we cannot say the questions asked amount to a comment on the evidence in violation of the constitution; nor can we say the conduct of the judge clearly prejudiced the jury. The trial court has some discretion in examining witnesses to clarify their testimony, and when no prejudice appears, there is no abuse of that discretion. Miller v. State, 250 Ark. 199, 464 S.W.2d 594 (1971); Clubb v. State, 230 Ark. 688, 326 S.W.2d 816 (1959). The judge made no further remarks or asked any other questions and Bradbury testified at length as to what he saw.
The second question concerns an instruction. The suit was for battery, but the appellee amended his complaint before trial to allege negligence. The trial judge instructed the jury on battery and refused to give an instruction offered by the appellant on comparative fault. It is argued that this was error. It is the duty of the judge to review the evidence presented, decide what the applicable law is, and instruct the jury. Life and Casualty Ins. Co. of Tenn. v. Gilkey, 255 Ark. 1060, 505 S.W.2d 200 (1974). This was a battery case, pure and simple, not a negligence case, and the judge correctly refused to give the instruction on comparative fault.
Finally, it is argued that the jury rendered a verdict by lot, which would be error. Scheptmann v. Thorn, 272 Ark. 70, 612 S.W.2d 291 (1981). The appellant contends that the verdict form had twelve numerical figures on it. Arkansas Supreme Court Rule 9(d) prevents us from reviewing this argument because the form was not abstracted. See Zini v. Perciful, 289 Ark. 343, 711 S.W.2d 477 (1986).
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Per Curiam.
The petitioner Phillip Michael Wheat was found guilty by a jury in a bifurcated trial of three counts of aggravated robbery and theft of property arising out of the robbery at gunpoint of a pharmacy. He was determined to be an habitual offender with eight prior felony convictions and was sentenced to two consecutive prison terms of forty years on counts I and II of aggravated robbery and concurrent terms of forty years on Count III of aggravated robbery and ten years for theft of property for a total term of eighty years imprisonment. He has now filed a petition for post-conviction relief pursuant to Criminal Procedure Rule 37 in which he alleges that he was not afforded effective assistance of counsel.
Petitioner first contends that his attorney should have argued at trial that there was only one course of conduct and thus only one aggravated robbery. He argues that it was a violation of the provisions against double jeopardy to convict him of a separate offense against each of the three persons present in the pharmacy.
The evidence adduced at trial showed that petitioner who was armed with a pistol entered the pharmacy and forced the two clerks to lie on the floor while the pharmacist gathered the money and narcotics into a bag. Only the property of the pharmacy was taken and there was no effort made to take any personal property belonging to the pharmacist and clerks. Although the focus of the crime of aggravated robbery is threat of physical harm to the victim, see Mitchell v. State, 281 Ark. 112, 661 S.W.2d 390 (1983), the question is whether under the statute it was proper to charge the petitioner with a separate count of aggravated robbery for each person he threatened in the course of the robbery even though he neither took nor manifested any intention of taking property individually from each of them. We conclude that the robbery was a single transaction, the intention of which was to commit theft of the pharmacy property and not three separate offenses. As we find merit to the argument that there was only one aggravated robbery under the facts of this case, the three convictions for aggravated robbery must merge, leaving petitioner to serve concurrent terms of forty years for aggravated robbery and ten years for theft of property.
The facts of this case are distinguishable from Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988), where the appellant who had held seven employees of a trucking company at gunpoint while waiting for his paycheck to be prepared was found guilty of seven counts of terroristic threatening and seven counts of false imprisonment. We held in that case that separate offenses were committed against each of the seven persons since each was threatened and wrongfully imprisoned. There can be no doubt that if each of the two clerks had been forced to give over some property belonging to her, separate offenses of aggravated robbery would have been committed with respect to each clerk. See Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977).
We note that other courts have reached the same results in similar situations where the defendant threatened the use of force against several persons to commit one act of theft. See State v. Faatea, 65 Haw. 156, 648 P.2d 197 (1982) (holding that the threatening of five persons to effect the theft of a hotel’s receipts constituted one robbery, notwithstanding a phrase in the statute that robbery is committed if, in the course of committing a theft, the person “threatens the imminent use of force against the person of anyone who is present”); State v. Potter, 285 N.C. 238, 204 S.E.2d 649 (1974) (holding that when the lives of all employees of a store were threatened and endangered by the use or threatened use of a firearm incident to the theft of their employer’s money or property, a single robbery is committed); People v. Nicks, 23 Ill. App. 3d 435, 319 N.E.2d 531 (1974) (holding that where a defendant robbed a store owner and two cashiers, separately, but all in one transaction, he could only be convicted of one count of armed robbery).
Petitioner’s remaining allegations of ineffective assistance of counsel do not merit post-conviction relief. To prevail on a claim of ineffective assistance of counsel, the 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. 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 adversary process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conducts falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder 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. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668 (1984).
Petitioner alleges that counsel relieved the state of its burden of proof by conceding in his opening statement that a robbery had been committed. The contention fails in light of the overwhelming evidence that the pharmacy was indeed robbed by someone. Counsel did not concede that the petitioner was the robber and attempted throughout trial to establish that the witnesses misidentified him.
Petitioner also argues that counsel should have submitted jury instructions so that the jury could have considered a lesser included offense. Again, the evidence was overwhelming that an aggravated robbery had occurred. Petitioner has not shown that there was any rational basis for an instruction on a lesser included offense. See Roberts v. State, 281 Ark. 218, 663 S.W.2d 178 (1984).
Finally, petitioner makes the statement that counsel failed to “investigate regarding [his] claims to prepare for trial.” As petitioner does not explain what specific action counsel should have taken to investigate and why the action was needed to prepare for trial, he has not demonstrated that the defense suffered any prejudice.
Petition granted in part and denied in part. | [
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Leflar, J.
This is an action brought by W. I. Stout, minority stockholder in the Southern Mattress Co., an Arkansas corporation, to compel J. Carl Oates, Elsie P. Oates, and Sam C. Oates, officers and majority stockholders, to repay to the corporation certain sums received by them as “salaries” during the years 1941-48. The Chancellor found for the defendants and dismissed Stout’s complaint. He appeals.
The Southern Mattress Co. was dominated by J. D. Oates, its president, until his death in 1941. Of the I,000 shares of its stock, J. D. Oates owned 608 shares; his son J. Carl Oates owned 25 (of which 9 were later transferred to J. Carl’s wife, Elsie P. Oates); Sam C. Oates (not a relative of J. D. Oates) owned 167 shares; and the remaining 200 shares were owned by H. S. Nixon (100), J. F. Walker (50), and W. I. Stout (50). Shortly before the present suit was filed W. I. Stout purchased the stock held by Nixon and Walker, thus becoming the owner of 200 shares. After the death of J. D. Oates his 608 shares were technically owned by his estate, of which J. Carl Oates was administrator and principal beneficiary.
After his father’s death J. Carl Oates was elected president of the corporation and actively administered its affairs until he became ill with tuberculosis in 1947 and went to the Sanitarium at Booneville, at which time his wife Elsie P. Oates was elected vice-president and thereafter shared the work with him. This work involved not only the management of the mattress factory operated by the corporation but also the handling of all purchases of materials and the making of all sales. In their capacities as officers of the corporation Mr. and Mrs. Oates made many trips to “call on the trade.” No other salesmen were employed. Sam 0. Oates was secretary of the corporation, and from 1919 on through the period of this litigation he was bookkeeper, payroll clerk and general office manager at the factory. During the later years he was also consulted frequently on matters involving administration of the business, particularly after J. Carl Oates became ill in 1947.
The system used in paying salaries to the corporate officers was one whereby they each received $150 a month throughout the fiscal year, which was the same as the calendar year, then at the end of the year when corporate profits were known they (the officers) themselves determined what additional salary payments for the past year were justified by the business done and profits made. Prior to his death in 1941, J. D. Oates made these determinations by himself for all the officers. After 1941, J. Carl Oates had the principal voice in making the determinations, though he was assisted by Sam 0. Oates and, from 1947 on, by Elsie P. Oates. The corporation made a profit on its operations, after salaries were paid, each year during the entire period in question, and substantial dividends were paid for each year up to but not including 1948.
For many years annual meetings of the corporate directors and of the stockholders were held soon after the first bf January. It seems that these were regularly attended by all or almost all of the stockholders as well as the directors. At these meetings Sam 0. Oates, the secretary, regularly handed out to each director and stockholder copies of a “financial statement” listing the assets and liabilities of the corporation and summarizing by items the income and outgo from the year’s operations. The minutes of the meetings do not show that there were formal approvals of these financial statements or of the transactions summarized by them, but it is undisputed that there was never any question raised concerning them.
Tlie last of these annual meetings was held on Feb. 22, 3947, at which the 1946 financial statement was circulated, a board of directors consisting of all the stockholders was elected, and officers were named as already-indicated. No meetings were held in 1948 and 1949, but financial statements were sent to all stockholders in the same form as for previous years.
The total amounts paid by the corporation to the various officers for the years in question are as follows :
President Vice-president Secretary
Year J. Carl Oates Elsie P. Oates Sam C. Oates Total
1941 $3,000.00 ¡53,000.00
1942 6,382.50 4,017.50 $10,400.00
1943 6,778.12 4,121.88 10,900.00
1944 6,778.12 4,121.88 10,900.00
1945 6,778.12 4,121.88 10,900.00
1946 12,000.00 4,800.00 16,800.00
1947 6,600.00 $4,800.00 5,400.00 16,800.00
1948 4,250.00 4,250.00 5,100.00 13,600.00
The annual financial statements, under the head of ‘ ‘ Salaries ’ ’, gave total figures only, and not the amounts paid each officer. Actually, the amounts shown under the head of “Salaries” each year were larger than the total sums paid to the officers, the figure given for 1948, for example, being $14,216.50, instead of the $13,600.00 shown above, and for 1947 $17,234.00 instead of the $16,800.00 shown above, the difference being apparently attributable to salaries paid to temporary employees. Amounts paid to hired workmen, however, were shown under the separate heading of “Payrolls”. There is no showing in the evidence that any of the directors or stockholders ever doubted that the “Salary” figures set out therein represented payments made primarily to tire officers of the corporation, J. Carl, Elsie P., and Sam C. Oates. In fact, it cannot be denied that they knew this.
The records of the corporation, however, show that not all of the payments made to the corporation’s offi cers were in fact paid as salaries. The corporation’s books, kept by Sam 0. Oates, designate a part of the payments made during the four years 1942-45 as “stock bonuses”, and it appears to us that these so-called “stock bonuses” were not salary payments but were preferential dividends paid to the officers as majority stockholders, and not paid to the minority stockholders. Here are the figures:
J. Carl Oates Sam C. Oates
Year Salary Bonus Total Salary Bonus Total
1942 $4,800.00 1,582.50 6,382.50 3,600.00 417.50 4,017.50
1943 4,800.00 1,978.12 6,778.12 3,600.00 521.88 4,121.88
1944 4,800.00 1,978.12 6,778.12 3,600.00 521.88 4,121.88
1945 4,800.00 1,978.12 6,778.12 3,600.00 521.88 4,121.88
It will be seen at a glance that in each year the basic salaries are fixed in round numbers, just as they were in every other year in question, but the inclusion of the bonuses makes the total payments end in odd cents. The amount of these bonuses can be arrived at to the penny by giving these men a 10% dividend on their respective stock holdings in 1942 and a 12% % dividend in the other three years.
These amounts were included in the salary totals tabulated above, and in the salary reports on the annual financial statements handed to all stockholders and directors. The secretary testified that the recording of this part of the salaries in this form was for bookkeeping purposes only, and did not represent any effort to pay a special dividend to a preferred group of stockholders. In explaining the “stock bonus” form of entry in the corporate books, he said, “I did that of my own accord. No one else but myself knew that I made that .entry. ’ ’
Despite this testimony, it is impossible to believe that these were just bookkeeping entries that nobody else knew about, or that the total “Salary” figures were independently arrived at in advance and the book entries were nothing more than the secretary’s special method of making a record. It is of course admitted that both J. Carl and Sam C. Oates participated in fixing the amount of these /‘Salaries”, and certainly they both, knew that the total amounts were determined by adding to the basic salary a percentage of stock ownership.
It is argued that these two men, with no thought of stock ownership, in good faith concluded that in 1943 the fair value of J. Carl Oates’ services was exactly $6,778.12, the value of Sam C. Oates’ services was exactly $4,121.88, and so on for the other years. Then, by what is now attributed to coincidence, it was discovered that in every one of these four years the odd salary figures corresponded precisely with a given basic salary, plus a percentage of stock holdings and a “stock bonus” entry was made on the books accordingly, for the secretary’s private reasons. That contention falls of its own weight; it is contrary to the obvious facts.
There was also some suggestion in the testimony that these stock bonuses were merely a device adopted for income tax purposes. This notion is equally untenable. As to the officers, the sums they received would be subject to the same taxation whether called salaries or dividends. And as to the corporation this device actually increased the corporate tax, since salaries are deductible from the company’s gross income but dividends are not. Thus there is no reasonable basis for treating these .bonuses as anything except what they were — preferential dividends.
In the annual financial statements these bonuses were concealed under a g’eneral heading, “Salaries”; so the minority stockholders were not told what was being done and could not have ratified the payments. The total figures given in the annual statements under the head of “Salaries” admittedly included amounts paid to others than the officers. There was no breakdown of figures whereby the stockholders could tell what amount was being paid to any particular officer. The only ratification which these figures could support would be to the effect that a salary payment in the totals indicated was not out of line for the business. But this would not include a ratification of preferential dividends paid to the majority stockholders without the knowledge of the minority.
It is of course unlawful for one group of stockholders to pay themselves a dividend that is not shared by all stockholders. In the absence of specific approval by all stockholders, preferential dividends are invalid, and it makes no difference that those receiving the dividends, and therefore presumably approving them, constitute a majority of the stockholders. Fletcher, Corporations, § 5352; Thompson, Corporations, § 5277. And see Railway Company v. Martin, 57 Ark. 355, 21 S. W. 465; Jones Lbr. Co. v. Wisarhana Lbr. Co., 125 Ark. 65, 187 S. W. 1068. Minority stockholders may always attack such preferential dividends, and this is true whether they are formally labeled dividends or not. They are inherently bad.
Nor is the right of minority stockholders to attack these preferential dividends barred by the statute of limitations. Defendants were officers and directors of the corporation, and therefore held these preferential payments as trustees for the corporation and all its stockholders. Red Bud Realty Co. v. South, 96 Ark. 281, 131 S. W. 340; Jones Lbr. Co. v. Wisarhana Lbr. Co., 125 Ark. 65, 187 S. W. 1068. Though the trust was not express, it was the kind of constructive trust as to which the statute of limitations does not begin to run until the concealed right is or should be discovered. Hardy v. Hardy, 198 Ark. 1021, 132 S. W. 2d 365; Bovay v. Byllesby, 27 Del. Ch. 381, 38 Atl. 2d 808, 174 A. L. R. 1201; Ventress v. Wallace, 111 Miss. 357, 71 So. 636, L. R. A. 1917A, 971; Fletcher Corporations, § 5886. Compare Board of Education v. Morgan, 182 Ark. 1110; 34 S. W. 2d 1063. There is no showing in the evidence that any of the minority stockholders knew or had any ready opportunity to know, before the bringing of the present action, about these preferential dividends the existence of which was concealed by the form of the annual financial statements furnished to them by the officers. We therefore conclude that the plaintiff, as a minority stockholder suing on behalf of the corporation, is entitled to judgment against J. Carl Oates and Sam C. Oates for the amounts received by them under the so-called ‘ ‘ stock bonuses ’ ’ which were in fact preferential dividends.
As to the other amounts received by defendants, however, the situation is different. The Chancellor found that the total amounts received by the respective defendants were no more than reasonable compensation for the services rendered by them, for which they were without question entitled to be paid. The whole history of the corporation’s operations shows that the stockholders did not expect the officers to work for nothing, to give their whole time to the corporate business without compensation. They were to be paid, and the only question now is whether they were paid too much. In the absence of agreement or contract as to the amount of salary payable, the test seems to be the reasonable value of the services rendered. Fletcher, Corporations, § 2133; Thompson, Corporations, § 1849.
The highest salaries were paid in 1946 and 1947. In 1946 the salary paid to President J. Carl Oates was $12,000, and that paid to Sam C. Cates as secretary, bookkeeper and office manager was $4,800. The total was $16,800. The total profit for the year, before salaries were paid,' was $24,501.52, and the net profit, after salaries, was $7,700.52, or 30.80208 per cent of the $25,000 capital stock of the corporation. This was earned from gross sales of the company’s product totaling $158,026.12 for the year, for most of which the officers of the corporation were personally responsible.
In 1947 President J. Carl Oates received a salary totaling $6,600, Elsie P. Oates as vice-president received $4,800, and Sam C. Oates as secretary, bookkeeper and office manager received $5,400, for a total salary roll of $16,800. For that year, before salaries were paid, the business showed a gross profit of $21,646.75. After salaries were paid, the net profit was $4,846.75, or 39.387 per cent of the $25,000 capital stock. This was earned from gross sales of $143,362.36 for the year.
Por 1948 both profits and salaries went down. The president was paid $4,250, the vice-president $4,250, and the secretary, bookkeeper and office manager $5,100, a total of $13,600. The gross profit for the year was $15,511.50, leaving a net profit after salaries of $1,911.50, or 7.646 per cent on the capital stock, based on total sales of $123,001.80.
Salaries paid for the preceding years, as already set ont, were much lower, particularly after the amounts paid as “stock bonuses” are deducted, but sales and profits were correspondingly high. All the evidence indicates that both J. Carl Oates and Sam C. Oates worked hard, performed many of the tasks for which in other corporations additional employees might have been hired, and managed the business wisely and well.
There is much other evidence in the record indicating the amount and type of work done by defendants as managers of the corporate business, as well as the testimony of several officials of similar small manufacturing and sales companies to the effect that comparable or higher salaries are being paid in their organizations. In view of this testimony, we cannot say that the preponderance of the evidence is contrary to the Chancellor’s finding as to the propriety of the amounts paid to defendants for their services.
Except as to the amounts paid as “stock bonuses”'— the illegal preferential dividends — the decree of the Chancery Court is affirmed. As to the “stock bonuses”, the case is remanded with directions; to enter a decree in accordance with this opinion.
Numerous cases to this effect are cited in 18 C. J. S. 1113, 13 Am. Jur. 681, and 66 A. L. R. 66. | [
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J. Fred Jones, Justice.
This is an appeal by Equipment Supply Company from an adverse judgment entered on a jury verdict in a suit filed by Equipment Supply against Claud Austin Smith, d/b/a Smith Tire Company, and McCreary Tire and Rubber Company. Smith cross-complained against McCreary and made Friend Tire Service, Inc. a third party defendant.
Equipment Supply Company was a domestic corporation with headquarters in Springdale, Arkansas, and T. J. Neff was its president and general manager. Equipment Supply owned and operated several motor tractor-trailer rigs in hauling produce interstate. Claud Austin Smith did business as Smith Tire Company in Spring-dale, and sold truck tires including McCreary brand tires. McCreary Tire and Rubber Company was a corporation domiciled in Pennsylvania and manufactured McCreary tires at its plant in that state. It distributed its tires through wholesale outlets in the various states but had no distributor in Arkansas. Friend Tire Service was domiciled in Missouri. It distributed the McCreary tires through its store in that state and Smith purchased Mc-Creary tires from Friend.
In October, 1969, Equipment Supply purchased ten McCreary tires from Smith and mounted two of them on the front, or steering axle, wheels of one of its trucks. On September 11, 1970, after the truck had been driven approximately 70,000 miles, the right front tire blew out causing the truck to leave the highway and resulting in considerable damage to the truck and trailer as well as to its cargo of frozen fish.
Equipment Supply filed suit against Smith and Mc-Creary on express and implied warranties alleging that Smith had expressly warranted the tires as being suitable for over the road use on trucks and trailers, and impliedly warranted that they were of merchantable quality and fit for the ordinary purpose for which they were sold. Equipment Supply further alleged that Smith and McCreary knew the purpose for which the tires were to be used and that Equipment Supply relied upon their skill and judgment in furnishing suitable tires for the known purpose.
By answers, counterclaims, cross-complaints and answers thereto, the issues were finally joined with Equipment Supply praying damages against Smith and Mc-Creary; with Smith praying judgment against McCreary for any amount adjudged against Smith; with McCreary praying judgment against Smith for contribution on any amount adjudged against McCreary; with Smith praying judgment against Friend for any amount adjudged against Smith on implied warranty, and with Friend praying judgment over against McCreary for any amount adjudged against Friend in favor of Smith.
The trial court granted summary judgments for Smith and Friend as to the alleged express warranties but denied their motions for summary judgments as to implied warranties, and the case proceeded to trial on implied warranties. At the close of the plaintiff’s evidence, the trial court granted motions by Smith and Friend for directed verdicts and the cause against Mc-Creary was submitted to the jury. The jury rendered its verdict in favor of McCreary and judgment was entered thereon. On appeal to this court Equipment Supply designated the points it relies on for reversal as follows:
“The trial court erred in directing a verdict for the defendant and cross-appellant, Claud Austin Smith, d/b/a Smith Tire Company.
A. Implied Warranty of Merchantability.
B. Implied Warranty of Fitness for a Particular Purpose.
The trial court erred in limiting the proof of consequential damages pertaining to lost profits to the sum of $3,500.00.
The trial court erred in submitting a special interrogatory to the jury requiring a finding that the defendant McCreary Tire and Rubber Company defectively manufactured the tire in question.”
Equipment Supply’s first assignment has given us the most difficulty but having resolved that point in favor of Smith, it follows that under the facts and the evidence of record, the trial court did not commit reversible error on the other two points designated. The express warranties alleged in the original complaint filed by Equipment Supply were disposed of on summary judgment and there is no appeal from that disposition. Implied warranties are controlled by the Uniform Commercial Code on Sales, Ark. Stat. Ann. §§ 85-2-101, et seq., and in so far as it applies to the case at bar, §§ 85-2-314 — 85-2-315 (Add. 1961) provides as follows:
Ҥ 85-2-314-(l) Unless excluded or modified ... a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. * * *
(2) Goods to be merchantable must be at least such as
(a) pass without objection in the trade under the contract description; and
(b) in the case of fungible goods, are of fair average quality within the description; and
(c) are fit for the ordinary purposes for which such goods are used; * * *
(3) Unless excluded or modified . . . other implied warranties may arise from course of dealing or usage of trade.
§ 85-2-315 Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such pulpóse.”
In Smith’s cross-complaint against McCreary and in McCreary’s answer and counterclaim against Smith, they both alleged that if they were liable in damages, it would be caused by the defalcation or the negligence of the other.
Equipment Supply propounded to McCreary 28 interrogatories pertaining to the degree of care exercised in the manufacture of McCreary tires.
Mr. Smith was first called by Equipment Supply as an adverse witness. In regard to the tire in question, he testified that Mr. Neff called him and inquired as to what he had in 1000 x 22 tires. He said he told Mr. Neff he had some General and McCreary tires, and after he quoted the price on the two brands, Mr. Neff said he had previously used McCreary tires which had given satisfactory service and he would take the McCreary tires. He said that the tires purchased by Mr. Neff (as distinguished from lug type drive wheel tires) were designed for use on the front end of the vehicle or wherever Neff would want to use them. He said he was familiar with Mr. Neff’s operation in using his trucks on long hauls and knew, in this particular instance, that Mr. Neff intended to use the tires on the front or steering axle wheels of his trucks. He said the normal mileage one could reasonably expect from a 1000 x 22 truck tire, when used on the front or steering axle of the vehicle, would vary between drivers and with the condition of the highway and equipment, but when properly cared for, such tire should run on the steering axle wheels from 30 to 70 or 75,000 miles. He said that in the trucking industry, after tires are used on the front, or steering axle, wheels, they are usually transferred to the dual wheels on the trailer where considerably more mileage can be expected from them. Mr. Smith estimated that more than 50% of the tread had been worn from the tire when he examined it following the accident. He said that any normal tire would be subject to failure after having been driven on the steering axle 70 or 75,000 miles. Mr. Smith said he purchased the McCreary tires from Friend Tire Company and that he dealt with Friend like Neff dealt with him; that he simply asked for the tire by brand name and had no literature, pamphlets or anything else from Friend or McCreary. He said that the particular tire involved in this case was not a specifically designed tire for any particular purpose, but was simply a common highway type truck tire that could be used anywhere.
Mr. Neff, the president and general manager of Equipment Supply, next testified in support of his company’s complaint. He testified that he is engaged in trucking commodities interstate and intrastate and has been involved in the trucking industry as driver, manager or lessee for a period of 24 to 25 years. He said he had been buying tires from Smith for some time and quite often, when he would need tires, he would call Smith and indicate what type of tire he needed, whether for steer axle or drive axle and Mr. Smith would tell him what he had available and what price they would be. He said that on this particular occasion when he purchased the McCreary tires, he was quite sure Mr. Smith referred to the McCreary and possibly to the General tires as the two brands he had in stock, and that Smith told him what the prices on the two brands would be. He then said:
“I didn’t make note of what the Generals could have been at that particular time but it was my election, then, that he had these available and I had probably ten others in service. They would suit our need.”
Mr. Neff testified that if a truck was driving perfectly, a tire could be used on the front or sterring axle until the tread was worn to seven or eight, thirty-seconds of tread depth. He said the tread depth on the tire involved would have been twenty-two, thirty-seconds when it was new and that when he measured the tread depth after the accident, in the only possible area left for measurement, it measured twelve, thirty-seconds. Mr. Neff testified that he would expect to get at least 150,000 miles out of a tire and on this point he testified as follows:
“Q. Mr. Neff, what was your practice in regard to steer axle tires?
A. We would pull those tires at sometime near half-worn — anywhere from eight, thirty-seconds up, depending on the condition of the tire, and move it to the trailer.
Q. And then what would you do?
A. The tire would run on out, then, and until it had in the area of two to four, thirty-seconds tread depth on it, and then we’d send it down and have it recapped.
Q. All right, sir.
A. And expect then another fifty to sixty thousand miles after recap.”
Mr. Neff testified on recall that prior to the purchase of the ten tires from Mr. Smith, he had used 20 or 30 McCreary tires on his trucks. He said he simply purchased the tires from Mr. Smith and installed them on the wheels himself. He then testified that Mr. Smith had nothing to do with the transaction other than to sell him the tires. He said the ten tires he purchased from Smith were the highway type of tires he ordered and were the type tires for the use he intended to put them. He then testified as follows:
"Q. Now, I take it from your testimony here, as well as your counsel’s, Mr. Bassett’s opening statement that your position in this lawsuit is that there was a defect in this particular tire that was caused during the manufacture of the tire; is that right?
A. Yes.
Q. So it was nothing that Mr. Smith did or did not do in connection with the tire, as far as you know?
A. That’s correct.”
Mr. Neff said he purchased the ten tires from Smith in October, 1969; that his inventory and records reflect he placed the specific tire involved on his truck in March, 1970, and drove the unit with the tire on the front axle some 70,000 miles plus, up until the accident which occurred in September, 1970.
Mr. H. E. Maxey, a chemist, testified as an expert for Equipment Supply. He said he examined the remainder of the tire after the accident and the pertinent portion of his testimony appears in the record as follows:
“Q. Now, Mr. Maxey, following your inspection and investigation of this tire failure, did you arrive at an opinion as to what had happened?
A. Yes, sir.
Q. What is that opinion; tell the Court and jury.
A. Well, it is my opinion that the tread on this tire (pointing to Plaintiff’s Exhibit No. 3 to Smith) came loose in this area and as it rolled on the truck and as it flexed, ... in the normal use of it. . . . You had friction set up between the tire, the carcass, and this tread. . . . and it generated sufficient heat to break down the nylon and also to break down the rubber. ... it blew out at that place.
Q. All right, sir. ... do you have an opinion as to what caused the friction, the heat between the tread and the carcass, as you have described for the jury? . . .
A. Yes.
Q. And what is that opinion?
A. The tread came loose from the carcass because it wasn’t put on the carcass properly or substantially, and the rubbing started and it disintegrated.
# # *
A. . . . Now, when this tread is put on . . . the carcass is built, the tread is put on the carcass through heat and pressure. Now, if this carcass has a little dust on it — if it has a little moisture on it, if it has any impurity on it that would interfere with the rubber on the carcass or interfere with the bonding, then you are going to have a weak spot in the bonding of the tread to the carcass, much like patching the old innertube many years ago. You had to clean the tube very well in order to get the patch to stick on it, and if the carcass has a dirty spot on it or anything to interfere, you are not going to get a good bond with the tread. In my opinion, that is probably what happened here. * * *
It’s my opinion that the tread was not properly bonded or substantially bonded to the carcass at the time of manufacture.”
The substance of expert testimony offered by Mc-Creary was to the effect that the tire was properly manufactured and the blowout occurred because of wear and road damage to the tire. Mr. Lee Mason, who drove the truck approximately 7 or 8,000 miles on the last two trips immediately before the tire blew out, testified that he knew of no road damage to the tire and that he had no prior knowledge of any defect in the tire or the steering mechanism on the truck until the tire blew out.
Instruction No. IB, given by the court, pertained to the form of verdict and was as follows:
“The form of the verdict in this case is by Interrogatories, as follows:
Do you find by a preponderance of the evidence that McCreary Tire and Rubber Company, Inc. defectively manufactured Tire No. KY0112 which proximately caused the damage to plaintiff.
Answer ‘yes’ or ‘no.’
Sign (blank) as foreman.
If your answer is ‘no,’ you have decided the case. If your answer is ‘yes,’ then answer this Interrogatory:
What do you find by a preponderance of the evidence the plaintiff should recover for the following elements of damages:
1. Damage to Tractor $-.
2. Damage to Lufkin Trailer $-.
3. Damage to Fish Cargo $-.
4. Loss of Profits During Period Tractor was Down Being Repaired $-
5. All Other Incidental Expense Reasonably Resulting from Collision $-.
Signed (blank) as foreman.”
There was no objection to the form of the verdict, although there were objections to other instructions given. After all of the instructions were given, the trial court inquired as to whether there were any further objections and Equipment Supply’s attorney answered in the negative.
In his argument to the jury, Equipment Supply’s attorney stated:
“I told you at the beginning that this is not a suit against the McCreary Tire and Rubber Company for negligence, whereby we have alleged fault and re sponsibility. This suit, Ladies and Gentlemen, is a suit for a breach of implied warranty.
# # #
Now, we have the burden of proof — proving what caused it to fail. Our testimony shows in this particular case, expert testimony and other testimony, that this tire failed because of an improper bonding at the manufacturing source. In other words, there was a defect in the manufacturing.”
It is apparent from the overall evidence in the record that the implied warranties both as to merchantability and fitness for purpose were met in this case, and certainly there is no substantial evidence that they were not. The evidence is clear, both from the testimony of Mr. Neff and Mr. Smith, that the tire was purchased by Neff and sold by Smith by brand name, and that Mr. Neff relied on his own judgment and not on that of Mr. Smith or McCreary in purchasing the tire. The testimony of both Mr. Neff and Mr. Smith was to the effect that the McCreary tire involved in this case was simply an ordinary truck tire manufactured for road use either on the front or steering axle of the truck or on the truck trailer. Mr. Smith admitted that he knew Mr. Neff intended to u&e the tires on the front, or steering axle, wheels in this particular instance but, assuming that these tires were specifically designed and sold for use on the steering axle wheels of the truck, there is no substantial evidence in this case that the tire did not fully comply with such intended use. Both Mr. Neff and Mr. Smith testified that when approximately one-half of the tread was worn from steering axle tires, they would be subject to failure and should be switched to a dual wheel position on the trailer. It was also their testimony that a front or steer axle tire would ordinarily reach this point of wear after approximately 70,000 miles. According to Mr. Smith the tread was more than half worn from the tire and according to Mr. Neff the tire had run more than 70,000 miles and, according to his measurement of the remaining tread on the shoulder of the tire, the tread lacked only one thirty-second of being half worn away. We conclude, therefore, that there was no substantial evidence that implied warranties of merchantability or use for intended purpose were breached in this case.
In support of its assignment of error under its first point, Equipment Supply argues that if the tire was defective from any cause, Smith sold a defective tire and his motion for a directed verdict should not have been granted. Equipment Supply did only allege breach of warranties, but Smith’s cross-complaint also alleged negligence and the case throughout was tried on the theory that McCreary failed to properly bond the tread of the tire to the carcass in manufacturing the tire. As already pointed out, the implied warranties of merchantability and fitness for a particular purpose (use on the steering axle) had been fulfilled at the time the tire failed and there was no evidence that Equipment Supply relied on the skill and judgment of Smith or McCreary in the selection or furnishing of the tire. Consequently, it would only follow that McCreary as well as Smith might have been entitled to a directed verdict on implied warranties, had it not been for the evidence of McCreary’s failure to properly manufacture the tire. There was no suggestion in the evidence that Smith was negligent in any respect or that he had anything to do with the manufacture of the tire. The case, however, was submitted to the jury against McCreary on implied warranties as well as negligence in the manufacture of the tire, and the jury found for McCreary on both counts. We are of the opinion, therefore, that under the facts and evidence in this case, the court did not commit reversible error in directing a verdict in favor of Smith.
In Smith v. Goble, 248 Ark. 415, 452 S.W. 2d 336, an automobile driven by Goble crossed the center line of the highway and collided with one driven by Smith. Smith sued Goble on negligence and Goble interpleaded White County Motor Company as seller and Ford Motor Company as manufacturer on alleged breaches of warranties. Smith amended his pleadings also asking damages against White Motor Company and Ford. The trial court directed a verdict in favor of White Motor Company and the jury found in favor of Ford but returned a verdict for Smith against Goble. Smith appealed on the grounds, among others, that the court erred in not instructing a verdict against Ford on the existence of a breach of warranty, and in directing a verdict for White County Motor Company. The evidence was to the effect that it would require a complete disassembly of the brake system to determine the exact cause of brake failure, and in affirming the trial court we said:
“Any error the court may have committed in dismissing White County Motor Company is now harmless and does not constitute reversible error. The evidence, above, is not sufficient to show any negligence on the part of White County Motor Company. See 8 Am. Jur. 2d Automobiles § 650 and 60 C.J.S. Motor Vehicles § 165(5). Furthermore, since the jury has exonerated Ford Motor Company for an alleged manufacturing defect that appellant’s expert witness admits was latent and could not have been discovered without a complete disassembly of the right front wheel brake, appellant is now estopped to complain against White County Motor Company on a derivative liability upon the theory of an implied warranty. See Davis v. Perryman, 225 Ark. 963, 286 S.W. 2d 944 (1956).”
Appellants cite the case of Mack Trucks v. Jet Asphalt, Et Al., 246 Ark. 101, 437 S.W. 2d 459. In that case Jet Asphalt obtained judgment for $5,000 against Mack Trucks for breach of implied warranty of fitness on two diesel truck engines. The appeal was based on the question of venue, lack of privity and limitations on express warranties. The judgment was based on implied warranties and we affirmed. The distinction between that case and the case at bar is that in Mack Trucks the purchase was made on special order after the purchaser had specified the work to be performed by the trucks in the operation of a gravel and asphalt plant. Diesel engines were specifically required by the purchaser. The trucks were built and diesel engines were installed by the manufacturer after the order for them had been given by the purchaser. It was necessary for the purchaser to discard the diesel engines furnished with the trucks and have new engines installed.
The appellants rely on our decision in DeLamar Motor Co. v. White, 249 Ark. 708, 460 S.W. 2d 802. In that case White brought suit in chancery to cancel a contract under which he had purchased a Chevrolet diesel truck from DeLamar Motor Company. White relied upon breach of warranty that the vehicle was fit for the purpose for which it was to be used. The contract was canceled by the chancellor and on appeal we affirmed. The evidence in that case was that the engine vibrated excessively and the brakes did not function properly. DeLamar contended that the defect complained of was the fault of the manufacturer and that the seller was not responsible, but we rejected this argument under the provisions of § 85-2-315, supra. The distinguishing facts in the DeLamar Motor Co. case are stated in that opinion as follows:
“At the time of the sale White told the seller that he intended to use the truck to pull a gasoline transport and to pull a lowboy. He also stated that Mr. De-Lamar ‘said it would do the job, and I had no reason to doubt it.’ On cross examination White admitted that when he bought the truck he thought that it would do the job he wanted it to do. That belief, however, did not negate the warranty. Any purchaser ordinarily expects the article being bought to serve its purpose, else he would not buy it. It does not follow, however, that the purchaser may not also be relying upon the seller’s judgment in the matter. Here White testified that he had not previously owned a Chevrolet diesel truck.”
We found from the record in that case that the chancellor was justified in finding that White did rely upon DeLa-mar to select a vehicle capable of doing the job White had in mind for it, and we found that the chancellor’s decision was not against the weight of the evidence.
As to- the appellants’ second point, the trial court’s limitation of proof of consequential damages in lost profits to the sum of $3,500, arose in connection with an argument between the parties pertaining to insurance Equipment Supply collected in connection with the loss, and the assigned error becomes moot in the light of the decision we have reached that the case should be affirmed.
As to the third point relied on by Equipment Supply, there was no substantial evidence that implied warranties had been violated in this case; consequently, there was nothing left to go to the jury except the evidence on which the entire case was primarily tried; that is, whether Mc-Creary Tire and Rubber Company defectively manufactured the tire in question. We conclude, therefore, that the trial court did not err in submitting the special interrogatories to the jury on this point. As already stated, however, Equipment Supply did not object to this action of the trial court even after the court specifically inquired whether or not there were additional objections.
The judgment is affirmed. | [
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Steele Hays, Justice.
By this appeal we are urged as a matter of first impression to adopt a rule of strict liability based on trespass, in place of liability based on fault, against one who has damaged an underground utility line. We decline, because it would be inappropriate to apply strict liability to the facts in this case.
Central Utility Constructors, Inc., appellee and defendant below, was awarded a contract to install a sanitary sewer system within the boundaries of Sewer Improvement District No. 144. Arkla and other utilities were consulted in the preparation of the construction plans to learn where utility lines were located within the district. Some of the information obtained from Arkla was inaccurate, but the plans accurately reflected where the lines were thought to be. During construction a number of breaks occurred in the gas lines and eventually Arkla sued Central, alleging some nineteen separate incidents of damage to its lines by reason of Central’s negligence. The complaint was later amended to add that Central committed trespass in violation of Arkla’s property rights in the lands occupied by its gas mains and therefore Central was liable irrespective of negligence.
The trial court declined to submit the issue of trespass to the jury, but did submit twelve of the nineteen counts (seven were non-suited) on the issue of negligence. The jury found that in six instances Central did not damage the lines and in four that Arkla’s negligence was equal to Central’s in causing the breaks. On the remaining two counts, the jury apportioned the negligence at 60% to Central and 40% to Arkla, returning a verdict of $439.20.
On appeal, Arkla contends the trial court erred in denying Arkla the right to try its case on the theory of trespass, arguing that although Central was not a trespasser to the easement, it committed a trespass to the chattels when it intentionally interfered with Arkla’s gas lines. To illustrate the argument, Arkla points to one of the instances of damage, this one occurring on April 19, 1979 at 4611 Foster Street in Little Rock. At that location Central encountered a two-inch cast-iron gas main running perpedicularly to the path of the sewer line. The plans showed the gas line to be in another location. Central employees called Arkla and were told “they didn’t have time to fool with it.” Central’s crew then stripped dirt from the gas line for some distance, attempting to gain enough slack to raise the line about six inches to permit the sewer to pass underneath. In so doing, the gas line snapped and damage resulted.
Arkla cites the Restatement of Torts, Second, § 217, and Cover v. Phillips Pipeline Co., 454 S.W.2d 507, 512 (Mo. 1970), for the rule that one who commits trespass to a chattel is subject to liability if the chattel is impaired as to its condition, quality or value. Other cases are cited supporting the same view, that liability for trespass to another’s property, both real and personal, exists irrespective of negligence: New York Steam Co. v. Foundation Co., 195 N.Y. 43, 87 N.E. 765 (1909); United Electric Light Co. v. Deliso Construction Co., 315 Mass. 313, 52 N.E.2d 553, 556 (1943); Mountain States Telephone and Telegraph Co. v. Vowell Construction Co., 161 Tex. 432, 341 S.W.2d 148 (1960); Wisconsin Telephone Co. v. Reynolds, 2 Wis.2d 649, 87 N.W.2d 285 (1958); Illinois Bell Telephone Co. v. Chas. Ind. Co., 3 Ill. App. 2d 258, 121 N.E.2d 600 (1954).
We readily concede the existence of the rule áppellant relies on and its support by respectable authority. Although it has ancient origins in the common law, in specific application it is the minority view, as a decided majority of jurisdictions hinge the right of recovery on negligence rather than on strict liability. Of the cases compiled at 73 ALR 3d 987, six jurisdictions apply the rule of strict liability for trespass, while at least twelve require fault as a basis of recovery.
In a fitting context, there is something to be said for both views, and we decline to commit to either position in this case because we find it unnecessary to do so. Whether we will want to apply strict liability arising from trespass in an appropriate case, we leave open, as there are distinguishing factual differences between the case before us and those relied upon in appellant’s brief where strict liability has been imposed.
Appellant leans heavily on Mountain States Telephone and Telegraph Co. v. Vowell Construction Co., supra. There, the Texas Supreme Court reversed the Court of Appeals and affirmed the trial court, where the telephone company had recovered a judgment against Vowell Construction Company for damaging its underground cable. The telephone company had buried its cable in the streets of El Paso under a franchise from the city which specified no particular depth. Some years later the city contracted, indirectly, with Vowell to pave and curb portions of the streets and in so doing Vowell’s scraper snagged and severed the cable. The Court held that molesting the cable was a violation of a property right which gave rise to a cause of action regardless of negligence. In supporting its position (and in contrast to the case before us) the Supreme Court made due note of the fact that neither the city nor Vowell made any request of the telephone company to check its lines and, if necessary, remove and relay them.
In Wisconsin Telephone Company v. Reynolds, supra, also relied on, the telephone company had installed its cable under an easement on private property and later received notice from the owner that he intended to have the grade of the land lowered. After the notice the telephone company had stakes placed on the land to indicate the location and depth of its cable. The defendant was engaged to perform the grading and the telephone company asked the shovel operator to notify it when the grading operation reached within ten feet of the cable — saying it would then send its crew to assist in the excavation and relocation of the cable. When the grading company reached the designated depth the telephone company was called and responded by saying its crew would be on hand shortly, instructing the grader not to go any closer to the cable. The shovel operator continued to remove earth in the vicinity of the cable and finally broke it. Relying on Restatement, 1 Torts, pp. 555 and 556, § 218, the Court applied strict liability for trespass, at the same time discussing elements of negligence by the operator, but noting that the telephone company’s request to the con tractor to be notified when grading reached a certain level was reasonable under the circumstances. Obviously, there are material differences between the Reynolds case and the case before us. Accepting Central’s version of the facts, unlike Reynolds, Arkla declined to involve itself in the problem at 4611 Foster Street. We don’t suggest that that gave Central a right to deliberately damage the gas line, but we do believe that forced to choose between the rigid rule of strict liability and the more flexible rule of negligence the trial court was correct in permitting the jury to decide what was reasonable under the circumstances.
Similarly, in New York Steam Co. v. Foundation Co., supra; Illinois Telephone and Telegraph Co. v. Chas. Ind. Co., supra; Cover v. Phillips Pipeline Co., supra; and United Electric Light Co. v. Deliso Construction Co., supra, the utility company had no notice of the work, and consequently no opportunity to prevent the occurrence.
Appellant cites Pioneer Natural Gas Co. v. K & M Paving Co., 374 S.W.2d 214, 219 (Tex. 1963) and Southwestern Bell Telephone Co. v. Davis, 247 Ark. 381, 445 S.W.2d 505 (1969), but those cases have little value here, as they involve suits by contractors against utility companies for personal injury and damage to the contractors’ operator and machinery resulting from contact with buried utility lines.
We have drawn a careful distinction between the cases cited and the case before us because we prefer to leave open the question of liability for trespass. There may be cases where liability without negligence is appropriate, cases where a utility company bears no part of the responsibility for damage inflicted on its system by the work of someone else (Deliso and New York Steam are fitting examples.) But we believe the trial court was correct on the evidence here in submitting the case to the jury on the appropriate negligence instructions. It is significant that the jury found Arkla’s negligence to equal Central’s in four instances and to be 40% of the total negligence in two others. It would, we think, be entirely unfitting to adopt a rule of strict liability here.
The judgment is affirmed. | [
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McHaney, J.
This is a suit by appellee against R. R. Rice, Mary Margaret Rice, his wife, Medora S. Rice, and appellant to secure a judgment against R. R. Rice and to foreclose a mortgage on eighteen acres of land in Lincoln County, same ’being a deed absolute in form, given by the Rices as security for R. R. Rice’s note. The case was-tried upon an agreed statement of facts as follows:
. “On November 1, 1926, defendant, R. R. Rice, was indebted to the People’s Savings Bank in the sum of three thousand one hundred forty-four dollars and thirty-five cents ($3,144.35) for borrowed money, and evidenced said indebtedness by his promissory note in that amount, due-one year after date, with interest from date until maturity at the rate of eight per cent, per annum, and after maturity until paid at ten per cent, per annum, and indorsed by plaintiff, a copy of said note being attached to the complaint, and marked “Exhibit A,” and made a part hereof. And on February 10, 1927, as security for said note, defendants, R. R. Rice, Mary Margaret Rice, his wife, and Medora S. Rice, executed and delivered to said People’s Savings Bank a deed absolute in form conveying the following described land situated in Lincoln County, Arkansas, to-wit:
“All that part of northeast quarter of section six (6), township eight (8) south, range five (5) west, lying east of the center of the old railroad dump; a copy of said deed being attached to the complaint, marked “Exhibit B” and made a part hereof.
“The said note not having been paid when due on November 9, 19:27, plaintiff paid the amount owing thereon to the People’s Savings Bank, in consideration of an assignment to him by People’s Savings Bank of said note and land, said conveyance being in form absolute, a copy thereof being’ attached to the complaint, marked “Exhibit C” and made a part hereof. The said deed to the People’s 'Savings Bank was duly recorded in the office of the recorder for Lincoln County on February 15, 1927, and the said deed from the People’s Savings Bank to plaintiff was recorded in the same records on March 27, 1928.
“On the 3d day of August, 1926, defendant, Mrs. Kirby Rose, instituted in this court a foreclosure suit on a mortgage held by her executed by defendant, R. R. Rice, and covering '224- acres of land in Lincoln County other than the lands hereinbefore described. On the 18th day of October, 1926, a foreclosure decree was duly entered therein, ordering a sale of said land under said mortgage, in which judgment was rendered in favor of plaintiff for $11,800. At said foreclosure sale defendant, Mrs. Kirby Rose, bought in said land described in her mortgage for the sum of $2,750, and retained a deficiency judgment against R. R. Rice in the sum of $9,050.
“On February 15, 1927, after the said deed to People’s Savings Bank was recorded, defendant, Mrs. Kirby Rose, caused to be issued an execution on her said judgment, and caused said execution to be levied on the said 18-acre tract conveyed to plaintiff, hereinbefore described; and on April 16,1927, the said 18-acre tract was sold under said execution, and defendant Mrs. Kirby Rose became the purchaser at said execution sale, bidding therefor the sum of one hundred dollars ($100).
“On March '27,1928, defendant R. R. Rice and plaintiff redeemed from said execution sale,-plaintiff paying for such redemption the sum of one hundred dollars ($100) with interest and costs, amounting in all to one hundred thirty-three dollars and forty cents ($133.40). Such redemption was effected without question by either the officers or the defendant Mrs. Kirby Rose, and entry of redemption was made on the margin of the execution as required by law, and certificate thereof was duly issued by the clerk of this court, copy of said certificate being attached to the complaint as “Exhibit D” and made a part hereof.
“Mrs. Kirby Rose did not agree to the redemption, and had no knowledge of it until it had been made, and she had received the amount paid to redeem the land, which she received in March, 1927, and still retains.
“Mrs. Kirby Rose had another execution issued on her said judgment on April 2, 1928, and levied on* said land, and the officer in charge of said execution caused the said land to be sold thereunder on July 24, 1928, and at such sale the said Mrs. Kirby Rose became the purchaser, bidding therefor the sum of $400, by crediting that amount on her said judgment against R. R. Rice, and proposes to obtain a deed under said execution, and asserts that her rights are superior to the rights of the plaintiff therein as herein described.”
The court found for appellee against R. R. Rice in the sum sued for, about which there is no dispute, and that appellee “as the vendee or mortgagee of the said R. R. Rice had a right to redeem the land in the manner in which it was redeemed; that upon said redemption he took title thereto free from any incumbrance or lien of the judgment of said Mrs. Kirby Rose, and the execution and sale by said defendant Mrs. Kirby Rose on July 24, 19'28, is void, and same should be canceled and set aside. Decree was entered accordingly.
On behalf of appellant it is argued that appellee had no right to redeem; that he was only a mortgagee; and that under the'statute, § 4329, C. & M. Digest, only the debtor could redeem, the right of redemption being purely statutory. It is further argued that if appellant can be said to have permitted appellee to redeem, “he would be considered as having redeemed for Mr. Rice, and the land would again become Mr. Rice’s property, subject to the balance of Mrs. Rose’s judgment, which she had a right to enforce by another execution.” We cannot agree with appellant in these contentions. The statute reads: “When any real estate, or any interest therein, is sold under execution, the same may be re deemed by the debtor from tbe purchaser, or his vendees, or the personal representatives of either, within twelve months -thereafter.” This court has several times held that others than'the “debtor” might redeem from execution sales. In Dalton v. Brown, 130 Ark. 200, 197 S. W. 32, it was held that a purchaser at an execution sale under the junior lien might redeem the land from a purchaser at an execution sale under the senior lien. In Turner v. Watkins, 31 Ark. 429, it was held that the “purchaser at execution sale of the equity of redemption in real estate succeeds to all the rights of the mortgagor, among which is the equitable right of redemption by paying the mortgage debt.” This case was cited in Dalton v. Brown, supra. In Tate v. Dinsmore, 117 Ark. 412, 175 S. W. 528, it was held that the mortgagor and Ms successors in interest have the right to redeem within one year from a sale under the power contained in the mortgage, although the statute (§ 7404, C. & M. Digest) provides only that the real property “may be redeemed by the mortgagor.” In the recent case of Arkansas National Bank v. Price, 179 Ark. 259, 15 S. W. (2d) 396, a case directly in point, it was held, quoting the third syllabus, that: “Judgment debtors and their grantees, purchasing property subject to a judgment lien, were entitled to redeem it from a subsequent execution sale, under C. & M. Digest, §§ 4329, 4330.”
So it will be seen that this court has already decided this question, that is, the right of the grantee of a judgment debtor to redeem from a subsequent' execution sale on a prior judgment lien, adversely to appellant. We do not feel called upon to overrule these cases. They have become rules of property. The redemption statute now under consideration is a remedial statute, and should be liberally construed to accomplish its beneficent purpose. The judgment creditor always has it in his power to make the land sold under execution of his judgment bring its real value, so that if a redemption is effected he cannot be hurt. Here appellee was a grantee of Mr. Rice, the judgment debtor, whether his deed be con sidered a mortgage or a deed absolute, which it was in form, and had the right to redeem from the execution sale under appellant’s judgment.
As to the contention that appellee should be considered as having redeemed the land for Mr. Rice, and that the land then again belonged to him subject to the lien of appellant’s judgment which she could enforce by another execution, we are of the opinion that the holding in Ark. Natl. Bank v. Rice, supra, is conclusive against appellant. It was there held, to quote the 5th syllabus, that “Purchasers of land subject to a judgment lien were entitled to redeem such lands from execution sale thereunder free from the judgment lien, which, so far as the lands were concerned, was satisfied by the execution sale.” This seems to be decisive of the point and would require no other citation, but see also the opinion of this court, by Mr. Justice Riddick, in Fields v. Danenhower, 65 Ark. 392, 46 S. W. 938, 43 L. R. A. 519. We do not think the case of Allen v. McGaughey, 31 Ark. 260, relied on by appellant, is decisive of the questions here considered.
Affirmed. | [
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Tom Glaze, Justice.
This is an appeal from the trial court’s dismissal with prejudice of the appellant’s cause of action. The trial court granted the appellee’s motion to dismiss based on the finding that the appellant’s complaint stated a tort cause of action for fraud or deceit, which was barred by the three year statute of limitations. On appeal, the appellant argues the following three reasons why the trial court erred in dismissing the cause: (1) his complaint states a cause of action on a writing under seal and therefore a five year statute of limitations is applicable; (2) even if his cause of action only stated a cause of action in torts, the statute of limitations was tolled because of appellee’s fraudulent concealment; and (3) the complaint on its face states a cause of action for breach of warranty of sales controlled by the Uniform Commercial Code and therefore a four year statute of limitations is applicable. We find no merit in appellant’s arguments and therefore affirm.
We summarily dismiss appellant’s second and third arguments by stating that these arguments were not made below, and we are unable to address them for the first time on appeal. See, e.g., Reed v. Alcoholic Beverage Control Div., 295 Ark. 9, 746 S.W.2d 368 (1988). In addition, it is undisputed that a cause of action for deceit or fraud is subject to a three year statute of limitations as set out in Ark. Code Ann. § 16-56-105 (1987). Therefore the sole question before the court is whether the appellant’s complaint also stated a cause of action based upon a writing under seal so that the five year statute of limitations for such actions under Ark. Code Ann. § 16-56-111 (b) (1987) would apply.
In making this determination, the court must look to the complaint itself. Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361 (1984). If this court finds that two or more statutes of limitations apply to a cause of action, generally the statute with the longest limitations will be applied. See Ballheimer v. Service Finance Corp., 292 Ark. 92, 728 S.W.2d 178 (1987). However, we look to the gist of the action to determine which statute of limitations to apply. See Andrews v. McDougal, 292 Ark. 590, 731 S.W.2d 779 (1987).
Appellant’s cause of action arises out of the purchase of a used Clark log skidder from the appellee on May 3, 1984. Apparently, the appellant was told he was buying a 1978 model. The log skidder was destroyed by fire. The appellant had purchased insurance on the equipment based on its fair market value of $18,000. When settling the claim, the insurance company determined that the log skidder was a 1973 model, and the appellant could only recover its fair market value of $10,000. Because of this loss and expenses of repairs on the older log skidder, the appellant filed suit against the appellee on May 18, 1987, more than three years after the cause of action accrued.
In his complaint, the appellant alleged that due to the misrepresentation, negligence and/or fraud perpetrated by the appellee in selling him a skidder some five years older than what had been represented and what had been contracted for, he claimed damages in the amount of $15,000 for loss of the fair market value of the skidder and loss of wages and income. The notarized bill of sale was attached to the complaint. The bill of sale contains a warranty of title to a 1978 Clark skidder and that the title is free of any and all encumbrances, against the lawful claims of any and all persons.
Most of the appellant’s brief presents arguments not heard below, such as breach of warranty of sales and fraudulent concealment of the cause of action. In the part of his argument we do address, the appellant relies on the bill of sale when arguing he alleged a contract action, which is covered by a five year statute of limitations. However, attachment of the bill of sale to the complaint is not enough to transform his action into one for breach of contract. As noted earlier, we look to the complaint to determine which statute of limitations to apply, and therefore the language of that complaint must show that the cause of action was based upon that writing, in this case the bill of sale.
While the complaint mentions the bill of sale, the allegations made in the complaint do not state a cause of action for its breach. For example, there is no statement that the appellee breached the bill of sale for failure to deliver title to the described property. Instead, throughout the appellant’s complaint, allegations are made of misrepresentation and fraud, reliance on that misrepresentation and fraud, and damages suffered because of that reliance. An action for misrepresentation and fraud lies in tort, and we agree with the lower court that this is the only cause of action pled in the appellant’s complaint.
Further, we note the appellant’s reliance on this court’s holding in Booth v. Mason, 241 Ark. 144, 406 S.W.2d 715 (1966). In Booth, this court held that part of a complaint relating to a property description contained in the warranty deed was controlled by the five year statute of limitations for written instruments and therefore not barred. However, in doing so, the court stated that the Booths’ complaint contained an alternative prayer based upon breach of warranty, which concerned certain acreage the Booths contended had been properly made a part of the property described in the warranty deed given them. In the present case, the appellant’s complaint is void of any alternative prayer based upon the bill of sale, and instead, appellant concludes his complaint by stating that he is entitled to adequate compensation from the appellee for losses, which resulted from the appellee’s misrepresentation, fraud and negligence — which is consistent with the allegations of misrepresentation he made throughout his complaint.
In sum, the gist of appellant’s complaint clearly sounds in tort, and we simply are unable to construe it to include another type action so as to permit the application of a longer statute of limitations. Thus, we affirm the trial court’s holding that the appellant’s cause of action was barred by the three year statute of limitations for torts.
The cause of action was also dismissed as to Calvin Horn, since the appellant’s complaint did not state that Horn was acting in an individual capacity. Because this point is not argued on appeal, we do not address it and will refer to Horn Lumber Company as the only appellee. | [
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Minor W. Millwee, Justice.
Appellant, R. L. Houck, owns and operates a large farm near Luxora in Mississippi County, Arkansas. He is a stockholder and director in Planters Cooperative, Inc., a cooperative organized under Act 153 of 1939 (Ark. Stats. §§ 77-1001 — 77-1025). The cooperative operates a cotton gin about 4% miles from the farm owned by appellant.
Appellees are six croppers who made cotton crops on the shares for appellant in 1946 and 1947. All of the appellees made crops in 1946 and three of them also made crops in 1947.
Under the several oral crop agreements appellant was to furnish the land, equipment, tools and seed and each of the appellees was to do the work of planting, cultivating and gathering the cotton crop for which he was to receive one-half of the proceeds of the crop. As the cotton was gathered each year it was hauled to the cooperative gin by appellant, and appellees were charged $1.50 per bale in 1946 and $2.00 per bale in 1947 for their share of the hauling expense. There’ were other gins closer to the lands farmed by appellees, but the original charge for ginning and price paid for cottonseed by Planters Cooperative compared favorably with that charged and paid by other gins in the community.
The articles of incorporation of Planters Cooperative provide that its net income or profits, after payment of a certain dividend on preferred stock, shall be paid or credited to “patrons, members and non-members alike on a patronage basis, including such amounts as may be set aside in reserves by the vote of the directors, ’ ’ as prescribed in the by-laws or ordered by the board of directors. The by-laws provide that non-member patrons shall be treated the same as members and shall participate in the distribution of the earnings on the same basis. The amount, or percentage, of said patronage payments is determined by the proportion that each patron’s business bears to the total business of the cooperative. In other words, if the cooperative ginned 1,000 bales of cotton in a season at a net profit of $1,000, then each patron, whether a member of the association or an outsider, would be entitled to a patronage payment of $1.00 for each bale of cotton which he delivered for ginning.
Although no formal resolution to that effect was introduced, appellant testified that at the stockholders’ and directors’ meeting held at the end of each ginning season in 1946 and 1947, it was decided that “patrons” would include “landlords who rented their land for part of the crop as rent, renters who rented from their landlords for cash, and renters who rented from their landlords for part of the crop,” but would not include share croppers. Planters Cooperative made patronage payments to appellant for the full amount of all cotton harvested by appellees in 1946 and 1947. Appellees brought this suit against appellant and Planters Cooperative seeking recovery of one-half of said patronage payments.
Trial resulted in a decree awarding judgment in favor of each of the appellees against appellant for one-half of the several amounts of the patronage payments made to appellant for cotton produced by appellees, the total of said judgments amounting to $737.65. Since the cooperative had paid over to appellant the respective amounts found due, the complaint against it was dismissed.
The question for decision is whether the chancellor correctly held that appellees were entitled to share in the patronage payments made to appellant.
Appellant points out the legal distinction between a tenant and a share cropper under our decisions and insists that appellees had no interest in the crop which they could control; and that their 50% share of the proceeds of the crop does not include any part of the patronage payments. We do not agree with appellant in this contention. It is true, we have held that a tenant is one who pays the landlord cash or a share of the crop, or both, for the use of the land, while a cropper is one who receives a share of the crop from his employer as payment for his labor, and is merely an employee. Barnhardt v. State, 169 Ark. 567, 275 S. W. 909. In Hardeman v. Arthurs, 144 Ark. 289, 222 S. W. 20, the court quoted with approval from Tinsley v. Craige, 54 Ark. 346, 15 S. W. 897, 16 S. W. 570, where it was said: “Ordinarily when the parties occupy the relation of landlord and tenant, the title to the crop is in the tenant, and he pays the landlord rent in kind or otherwise; and in general where they occupy the relation of landlord and cropper on shares, the title to the crop is in the landlord, and he delivers a part of it to the cropper in payment of his services.”
Appellees had no title to the crops until their respective one-half shares were set apart to them. Hammock v. Creekmore, 48 Ark. 264, 3 S. W. 180. Nevertheless, appellant was under a duty to divide the crops, or the proceeds thereof, with appellees. Fenton v. Price, 145 Ark. 116, 223 S. W. 364. Where a share cropper gathers the crop and turns it over to the employer-landlord to be sold, he has a cause of action against the latter for his share of the proceeds of the crop. Hemphill v. Lewis, 174 Ark. 224, 294 S. W. 1010.
A share cropper also has a contingent interest in the crop which he may mortgage. Beard v. State, 43 Ark. 284. The Laborers Lien Statute (Ark. Stats. § 51-301) has been construed to give croppers a lien on the crop grown for their labor which is superior to a mortgage on the'crop given tlie employer even, where the mortgage is prior in point of time. Carraway v. Phipps, 191 Ark. 326, 86 S. W. 2d 12.
The nature of the cropper’s right in the crops, or the proceeds thereof, depends upon the intent of the parties as ascertained from their contract. It is undisputed that under the contractual relationship existing' between appellant and appellees, the latter were entitled to receive for their services 50% of the proceeds of the crops which they produced. The question here is not one of title to crops but is whether the net proceeds of said crops include the patronage payments. If appellees had contracted for one-half the crops for their services and a division of the cotton had been made when it was gathered, and prior to ginning, appellees certainly would have been entitled to the patronage payments which are made to patrons of the gin regardless of whether they are stockholders or members of the cooperative. The mere fact that appellant hauled the cotton to the gin and made a division of the proceeds of the sale of the cotton should not work a forfeiture of appellees’ right to receive their share of the patronage payments. Such payments are in reality refunds or rebates which reduce the cost of ginning to both the appellant and the appel-lees and thereby increase the net proceeds of the sale of the cotton.
In Uniform Printing & Supply Co. v. Commissioner of Internal Revenue (C. C. A. 7th), 88 Fed. 2d 75, 109 A. L. R. 966, a corporation was organized by a group of insurance companies to do their printing. A by-law of the corporation directed that its surplus earnings should be returned to its customers in the proportion that the gross amount of business furnished by any customer bore to the gross amount of business done by the corporation. The court held such patronage payment to be a refund, or rebate, to customers rather than a dividend' and, therefore, not a part of its taxable income, saying: “Had the taxpayer given a customer (whether stockholder or outsider) a discount promptly after filling the order, no one would call it a dividend. If a rebate were given promptly upon the customer’s business reach ing a certain volume, the same conclusion as to its character would follow. To make cost estimates and adjust them at or near the end of each year returning the excess payment to the customer should not change the reasoning which leads to this conclusion. Nor should the fact that the customer is a stockholder materially affect the result. ’ ’ The court pointed out that the amount returned to each stockholding customer was based on the business transacted and not on stock ownership.
The same conclusion was reached by the Montana court in the case of Gallatin Farmers Co. v. Shannon, 109 Mont. 155, 93 Pac. 2d 953. In that cáse a cooperative association distributed its net profits in the form of “patronage dividends” in a manner similar to the payments made in the case at bar. The court held that the patronage dividend payments constituted a rebate, or refund, to patrons which was a necessary expense of the cooperative within the meaning of a state income tax statute and, therefore, deductible from gross receipts in determining net income. In regard to such payments the court said: “They are in no sense profits of the corporation that redound to the benefit of its stockholders. Patronage dividends are not distributed on the basis of stock ownership, but to patrons on the basis of patronage. Though the patrons be also stockholders, the allocation or distribution is not made on the basis of stock ownership but on the amount of patronage given to the corporation.” See, also, Anamosa Farmers Creamery Co. v. Commissioner of Internal Revenue, 13 B. T. A. 907; Midland Cooperative Wholesale v. Commissioner of Infernal Revenue, 44 B. T. A. 824; U. S. Cooperatives, Inc. v. Commissioner of Internal Revenue, 4 T. C. 93.
The Planters Cooperative pays no income tax because of the manner of distribution of its net earnings to customers in the form of patronage payments. These payments are not dividends similar to income 'from ordinary stock investments, but are refunds, or rebates, due all customers of the cooperative regardless of stock ownership. The making of such payments results in a refixing and reduction of the original charge for gin- liiug and a. correvspondiiig increase in the not proceeds derived from the wale of the cotton. The fact that the legal title to the cotton was in appellant does not lessen his obligation to pay over to appellees one-half of such net proceeds under the terms of their contract. In the absence of a stipulation in the contract to the contrary, appellees were, therefore, entitled to share equally with appellant in the patronage payments, and the chancellor correctly so held.
Affirmed.
McFaddin, J., dissents. | [
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Conley Byrd, Justice.
At issue here is the constitutional validity of Ark. Stat. Ann. § .31-501 (Repl. 1962), in so far as it authorizes a pre-judgment garnishment without notice. The trial court, relying upon Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969), held the statute void in so far as it authorized the issuance of a garnishment by a clerk without notice and prior to judgment. For reversal appellant, G.A.C. Trans-World Acceptance Corporation, points out that the garnishment here involved is against certain accounts receivable due to appellee, Jaynes Enterprises, Inc., a business corporation and contends that the holding in Sniadach v. Family Finance Corp., supra, is limited to wages.
In making its argument appellant recognizes that the United States Supreme Court in Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972), has construed the Sniadach case contrary to its contentions. However, it says that since the Fuentes case is only a four to three decision with two justices not participating, there is a question as to its effectiveness as a precedent. Cases from other jurisdictions have gone both ways upon the contentions made. Roofing Wholesale Co., Inc. v. Palmer, 108 Ariz. 508, 502 P. 2d 1327 (1973), would support appellant’s position. Etheredge v. Bradley, 502 P. 2d 146 (Alas. 1972), supports the trial court’s position. There are some dissenting opinions in both cases.
For a number of reasons, we are inclined and do accept the interpretation of the Sniadach ruling as set forth in the Fuentes case until such time as the United States Supreme Court rules to the contrary. Some of such reasons are:
1. Other decisions of the United States Supreme Court such as Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1969), and Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1970), have extended the same Due Process principle of notice and a fair hearing to welfare rights and the suspension of a driver’s license;
2. It is most illogical to say that the Due Process Clause of the Fourteenth Amendment requires notice and an opportunity to be heard only when dealing with wages, welfare rights and drivers licenses but that no such notice and an opportunity to be heard are prerequisites to depriving a citizen of any other property or rights that he may possess;
3. The statute in question is admittedly void as to wages and is not necessarily severable so as to remain valid to other assets; and
4. The General Assembly, following the Fuentes case, has by Act 144 of 1973, enacted a rather practical procedure for giving of notice to defendants against whom a writ of replevin is sought — inferentially it would not be impossible to make a similar provision with respect to garnishment proceedings.
Finally appellant argues that the appellees, Jaynes Enterprises Inc., d/b/a, Jaynes Mobile Homes, Bill Jaynes and Violet Jaynes, waived any right to a prejudgment hearing by signing a guaranty giving the appellant, in case of default, the right to take possession of contract rights and/or accounts or proceeds of the sale thereof wherever found and giving it the right to enter for such purposes without legal process. We find no merit to this contention. (1) The waiver contention under a somewhat similar contract was held not to preclude a preseizure hearing in the Fuentes case, supra. (2) This issue was not raised in the trial court and cannot be raised for the first time on appeal. (3) Furthermore, appellant did not rely upon the provision of its contract but invoked the aid of the court under the garnishment statute.
Affirmed.
George Rose Smith, Brown and Fogleman, JJ., concur. | [
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George Rose Smith, Justice.
The petitioner seeks a review of the decision of the Court of Appeals on the ground that the case involves the interpretation of the United States Constitution and of the Arkansas Constitution (the right of a person to be confronted with the witnesses against him). We do not agree. When the language of the federal and state constitution is identical, as in the instance of the confrontation clause, the due process clause, and several others, and there is no reason for us to construe our constitution other than in the same way as the federal constitution has been construed, we take the view that the case presents a federal question, not a state one under Rule 29 (1) (a). Here, for example, the main Arkansas case cited in the petition for certiorari merely followed decisions elsewhere with respect to the confrontation clause. Smith v. State, 200 Ark. 1152, 143 S.W.2d 190(1940).
Since the case does not involve an interpretation of our constitution, there was no reason for the appeal to have been filed here or to have been transferred by the Court of Appeals. The petition for review must therefore be denied. Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979). As indicated by the Moose case, our denial of the petition for review does not imply that we approve or disapprove of the decision of the Court of Appeals.
Writ denied. | [
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Mehaeey, J.
The grand jury of Sebastian County returned an indictment against the appellant charging him with ¡manufacturing intoxicating liquor. A change of venue was granted by the court to Scott County upon application of the appellant. There were three indictments against the appellant, one for manufacturing intoxicating liquor, another for possessing a still, and another for possessing mash. The jury found the appellant not guilty of the crime of possessing a still and also found him not guilty of the crime of possessing mash, but he was convicted of the crime of manufacturing intoxicating liquor and sentenced to a year in the penitentiary. He prosecutes this appeal to reverse the judgment of conviction.
The officers who made the arrest testified to facts which, if believed by the jury, justified it in finding defendant guilty. The evidence offered on the part of appellant was in direct conflict with the evidence of the State, but, under the well-established rule, if there was any substantial evidence to support the verdict of guilty, such verdict will not be disturbed by this court on account of the insufficiency of the evidence. The appellant himself says that, if the witnesses who testified on behalf of the State are to be believed, the appellant is guilty. It is therefore unnecessary to set out the evidence.
It is earnestly contended however by the appellant that the court arbitrarily excluded appellant’s witnesses and ordered the State’s witnesses to remain in the court room, and that the court erred in declaring counsel for defendant to be guilty of improper conduct in commenting upon the fact that the State’s witnesses were permitted to remain in the court room. Section 4191 of C. & M. Digest, provides: “If either party require it, the judge may exclude from the court room any witnesses of the adverse party not at the time under examination so that he may not hear the testimony of the other witnesses.” It is insisted that when the trial began the defendant moved the court to exclude all witnesses from the court room. The record does not show this. What the record does show is that the court refused to exclude the State’s witnesses who were officers of Sebastian County, and that appellant objected and excepted to this action of the court. It may perhaps be inferred from this that there had been a request of the court that the witnesses be excluded, but the record does not otherwise show it. It simply shows that the court refused to exclude the officers of Sebastian County, who were witnesses in the case. Whether any other witnesses were excluded is not shown by the record; however, assuming that the request was made to exclude all witnesses, and assuming that the court excluded all except the officers of Sebastian County, this was a matter within the discretion of the trial court. “The question as to whether any witness or all of the witnesses shall be put under the rule is one that addresses itself to the sound discretion of the court, and that discretion was not abused in permitting Duty to testify.” Oakes v. State, 135 Ark. 221, 205 S. W. 305. Duty was one of the attorneys employed in the prosecution, and had not been put under the rule as other witnesses had. The excluding of witnesses from the court room when not under examination is within the discretion of the court. St. L. I. M. & S. R. Co. v. Pate, 90 Ark. 135, 118 S. W. 260 ; Hlass v. Fulford, 77 Ark. 603, 92 S. W. 862. It does not appear that the court abused its discretion in refusing to exclude the State’s witnesses from the court room. The appellant gave no reason for objecting to the action oif the court; he did not at that time claim that any prejudice would result; he simply contented himself with objection to the action of the court in not excluding the State’s witnesses from the room. As we have already said, however, the record does not show except inferentially that any witnesses were excluded.
The appellant insists that the court erred in not permitting counsel for appellant to argue that the State had obtained an unfair advantage over the defendant by reason of the State’s witnesses being allowed to remain in the court room to hear each other testify and to hear defendant’s witnesses testify. The court, of its own motion, interrupted defendant’s attorney and would not permit him to make this argument; the attorney attempted several times to argue that the State had obtained an nnfair advantage over the defendant. The court instructed the jury not to consider this argument and admonished the attorney not to persist in this argument. There is nothing in the record to show that an unfair advantage was obtained by the court’s refusal to exclude the State’s witnesses from the court room, and the question of excluding witnesses as well as other questions of procedure during the trial are within the sound discretion of the trial court, and a judgment will not be reversed because of the court’s action unless it appears that the court’s discretion was abused. Brooks v. Perry, 23 Ark. 32 ; Dobbins v. Oswald, 20 Ark. 624 ; Tuttle v. State, 83 Ark. 379, 104 S. W. 135 ; Midland Valley Railroad Co. v. Hamilton, 84 Ark. 81, 104 S. W. 540 ; United Order of Good Samaritans v. Lomax, 172 Ark. 350, 288 S. W. 709.
It does not appear that the court abused its discretion in this case. The counsel'for appellant, of course, had the right to call attention to the fact that the State’s witnesses heard each other testify and heard the witnesses for defendant testify and had a right to argue from that the credibility of the witnesses, but it was improper to state to the jury that the ruling of the court had given the State an unfair advantage, and to persist in that argument after he had been admonished by the conrt that it was improper. There is nothing to indicate that the trial court abused its discretion, and the judgment of the circuit court is therefore affirmed. | [
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Robert H. Dudley, Justice.
Carl Widmer again appeals from an adverse decision in yet another suit against his brother, Raymond Widmer. See Widmer v. Widmer, 293 Ark. 296, 737 S.W.2d 457 (1987); Widmer v. Widmer, 292 Ark. 486, 731 S.W.2d 209 (1987); Widmer v. Widmer, 292 Ark. 384, 729 S.W.2d 422 (1987); Widmer v. Widmer, 288 Ark. 381, 705 S.W.2d 878 (1986); Widmer v. Widmer, 479 U.S. 849 (1986); Widmer v. Widmer, No. CA-85-217 (Ark. App. Feb. 26, 1986) (unpublished opinion). Also, he once again joined one of the lawyers for his brother in the suit. See Widmer v. Taylor, et al., 296 Ark. 337, 756 S.W.2d 903 (1988). This time he sued his brother and John T. Touhey, alleging that throughout their attorney-client relationship they conspired against Walter Widmer, Carl and Raymond’s father. Raymond Widmer moved for dismissal of the complaint against him. The motion was granted. As far as we can discern from the record, Touhey remains a defendant in the case below. ARCP Rule 54(b) allows a trial court to direct the entry of a final judgment as to one or more but fewer than all of the parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. “In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, . . . .” Ark. R. App. P. 2. The order appealed from had no such determination and direction. Accordingly, it is not a final appeal-able order. We are obliged to raise the point because it is a jurisdictional requirement. Kilcrease v. Butler, 291 Ark. 275, 724 S.W.2d 169 (1987); Ark. R. App. P. 2.
Appeal dismissed.
Glaze, J., concurs. | [
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