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Donald L. Corbin, Justice.
The Arkansas Court of Appeals reversed the Workers’ Compensation Commission’s affirmance of the administrative law judge’s ruling that appellant was not entitled to recover workers’ compensation benefits. Farnsworth v. White County, 39 Ark. App. 98, 839 S.W.2d 229 (1992). We agree with the finding of the Court of Appeals that appellant, as a duly elected constable for Cypert Township, White County, Arkansas, is a county official and thus is entitled to workers’ compensation benefits. Therefore, we affirm the decision of the Court of Appeals.
Since we find it hard to improve on the Court of Appeals’ decision, we substantially adopt it herein. Appellant was acting as constable on September 13,1986, when he approached someone riding a three wheeler (ATV) on a county road to inform the individual that this was an unlawful act. The individual and appellant argued and a struggle ensued when appellant tried to arrest the individual. During the struggle, appellant sustained a gunshot wound to his abdomen. From this injury arose a workers’ compensation claim. Appellant argues he is entitled to workers’ compensation under Ark. Code Ann. § 14-26-101 (1987) which requires all counties “to provide workers’ compensation coverage for their officials, employees, and municipal volunteer fire fighters.” Appellees contend appellant does not qualify as a county official, employee or municipal volunteer fire fighter and is thus not entitled to compensation.
The Commission found that appellant did not fall within any of the three categories for whom the county is required to furnish workers’ compensation. It was also noted that the definition of “employee” cited by appellant in Ark. Code Ann. § 14-14-1202 (1987) and Ark. Code Ann. § 14-14-1206 (1987) did not relate to coverage for workers’ compensation purposes but rather involved personnel matters. We agree with the Commission that appellant was not an employee of the county as that term has been defined in section 14-14-1206 due to the fact he was not receiving a salary. However we disagree in regard to the finding that appellant was not an “official” of the county.
Title 14 of Arkansas Code Annotated is entitled “Local Government.” Subtitle 2 under Title 14 is entitled “County Government.” This subtitle is divided into Chapters 13 through 26. The provisions regarding workers’ compensation are found in Chapter 26, which provides workers’ compensation coverage,for all county “officials, employees and municipal volunteer fire fighters.” Ark. Code Ann. § 14-26-101 (emphasis added). The term “officials” is not defined in Chapter 26; however, Chapter 14, Subchapter 13 codified at Ark. Code Ann. §§ 14-14-1301 — 14-14-1313 (1987) is titled “Officers Generally.” Pertinent to this case is section 14-14-1301(b) which is entitled, “Quorum Court District and Township Officers,” and provides in pertinent part:
There shall be elected in each township, as preserved and continued in § 14-14-401, one (1) constable who shall have the qualifications and perform such duties as may be provided by law.
This section also includes other elected officials such as county judges, county clerks and sheriffs.
The first step in interpreting a statute is to construe it just as it reads by giving words their ordinary and usually accepted meaning. American Casualty Co. v. Mason, 312 Ark. 166, 847 S.W.2d 392 (1993). When interpreting an act, it is permissible to examine its title. Id. Parts of statutes relating to the same subject matter must be read in light of each other. City of Fort Smith v. Tate, 311 Ark. 405, 844 S.W.2d 356 (1993); Phillips v. City of Eureka Springs, 312 Ark. 57, 847 S.W.2d 21 (1993). The workers’ compensation chapter is within the same subtitle, County Government, as the chapter referring to “Officers Generally.” Constables are included within this designation. The election of officers, and the term of years a constable shall hold office are set out in Ark. Code Ann. § 14-14-1302. All of these statutes involve the same subject matter. Based on the plain meaning of the words, the titles of the sections and the subject matter involved we hold that appellant, as a constable, is an official of the county and thus covered by workers’ compensation. We therefore affirm the decision of the Court of Appeals.
Newbern, J., concurs.
The Commission also found that appellant was not entitled to temporary total disability benefits due to the fact he was not receiving any wages upon which an award could be based. This finding has not been challenged in this appeal; therefore, we express no opinion on the validity of this finding. | [
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Holt, J.
A jury found appellant guilty of larceny of a cow (Ark. Stats. 1947, § 41-3917,—Pope’s Digest, § 3140) and fixed his punishment at one year in the Penitentiary. Prom the judgment is this appeal.
For reversal, appellant contends that (1) the evidence was not sufficient to support the verdict and (2) that the court erred in giving the State’s requested instruction No. 2.
(1)
The evidence as to appellant’s guilt was in the sharpest conflict. That on the part of appellant was to the effect that he, in good faith, purchased the cow in question from the owner, Mancel Robbins, the complaining witness, paid cash for her, and later sold the cow. The testimony on the part of the State was to the effect that Robbins owned the cow and never at any time-sold the cow to appellant. Whether appellant had bought the cow from Robbins, as he claimed, or was guilty of larceny of the cow, as the testimony on the part of the State tended to show, presented a fact question for the jury.
We have reached the conclusion, however, that appellant’s second contention, that the court erred in giving the State’s instruction No. 2, must be sustained.
Instruction No. 2 provides: “You are instructed if you find from the evidence in this ease beyond a reasonable doubt that the defendant, Oscar Holcomb, was in possession of a cow recently stolen from Mancel A. Robbins, and that possession is not explained to the satisfaction of the jury, such possession is sufficient to sustain a conviction of larceny. ’ ’
Appellant’s objection was as follows: “The defendant objects and excepts to the giving to the jury of State’s requested Instruction Number 2 generally and specifically; generally, on the grounds that the instruction is not the law, and specifically, on the grounds that the instruction is vague, indefinite, general and uncertain; and, second, that it tells the jury that the defendant was in possession of a cow recently stolen from Mancel A. Robbins, when the evidence shows that possession of the cow was in possession of a man named Gregory at Mor- rilton, Arkansas; and the defense further objects to said instruction on the grounds that it inferentially tells the jury that the cow was stolen, when that is one of the points in issue in the case.”
We hold that the instruction was inherently wrong since, in effect, it was on the weight of the evidence and an invasion of the province of the jury.
In Sons v. State, 116 Ark. 357, 172 S. W. 1029, we said: “We have held in repeated decisions that unexplained possession of property recently stolen constitutes evidence legally sufficient to warrant a conviction of larceny or of the crime of knowingly receiving stolen property; hut that an instruction that such evidence is sufficient to sustain a conviction amounts to an instruction on the weight of the evidence and is, for that reason, an invasion of the province of the jury.
“In Duckworth v. State, 83 Ark. 192, 103 S. W. 601, the instruction told the jury that ‘the possession of property, recently stolen, unexplained, is evidence of the defendant’s guilt,’ and that if such unexplained possession is corroborated by other evidence tending to connect the accused with the larceny, ‘then you will find them guilty.’
“In Thomas v. State, 85 Ark. 138, 107 S. W. 390, the court charged the jury that ‘the possession of property recently stolen, unexplained, * * * would be sufficient under this indictment to sustain a conviction. ’
“In each of these cases, we held that the instructions given were erroneous for the reason that they were on the weight of the evidence.”
In Mays v. State, 163 Ark. 232, 259 S. W. 398, we said: “The court gave, over appellant’s objection, an instruction numbered 3, which advised the jury that the finding of stolen property in the possession of another, shortly after the said property had been stolen, raises a presumption of guilt as against the person in whose possession the same is found, but that this presumption is a rebuttable one, and that, if this possession is explained to the satisfaction of the jury, the presumption is over come, and should not be considered as any evidence against the accused. After so announcing the law, the court proceeded in the same instruction to say that the finding of the property in the possession of the defendant was not itself sufficient to warrant a conviction, but was merely a circumstance to be considered by the jury in passing on defendant’s guilt or innocence, and that he should not be convicted unless they were convinced, beyond a reasonable doubt, that defendant knew the dresses were stolen when he received them.
We have here an instruction which contains the error which has been frequently condemned by this court as prejudicial. A recent case is that of Pearrow v. State, 146 Ark. 182, 225 S. W. 311, where it was said: “The court erred in telling the jury ‘that the possession of property recently stolen and unexplained by the defendant affords presumptive evidence of his guilt. ’ This language was an instruction on the weight of the evidence, which was condemned by this court as erroneous and prejudicial in the quite recent case of Long v. State, 140 Ark. 413, when we said: ‘ The rule is that the unexplained possession of recently stolen property is a fact from which an inference of guilt may be drawn.’ It is wholly within the province of the jury to draw or not to draw such inference, and it is an invasion of the province of the jury to tell them, as a matter of law, that the unexplained possession of recently stolen property raises a presumption of guilt. Other cases holding to this effect are cited in Long v. State, supra. The latter part of the instruction is a correct statement of the law, but it did not cure the vice of the language of the first part, just quoted.”
Appellee relies strongly on the case of Shoop v. State, 209 Ark. 498, 190 S. W. 2d 988. That case, however, is clearly distinguishable. It reaffirms the general rule announced in Sons v. State, above, in this language: “This court has long followed the rule that the possession of recently stolen property, if unexplained to the satisfaction of the jury, is (evidence legally) sufficient to sustain a conviction either of larceny or receiving stolen property,” but as pointed out in the Sons case above, “an instruction that such evidence is sufficient to sustain a conviction amounts to an instruction on the weight of the evidence and is, for .that reason, an invasion of the province of the jury.”
Such we hold to be the effect, as indicated, of instruction No. 2, above.
There was no instruction such as we have here involved in the Shoop case.
For the error in giving instruction No. 2, the judgment is reversed and the cause remanded for a new trial. | [
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Leflar, J.
Appellee Chapman brought this action to recover á $1,000 down payment which he had made to appellants on an oral contract for the purchase of a farm and equipment for a total price of $16,500. Appellants gave testimony tending to show that they were at all times willing to convey the land to appellee had he produced “cash on the barrel-head” for payment of the balance agreed upon, which they say appellee never offered them. Appellee claimed that he did offer to pay cash, in the form of a check that would have been honored, but that appellants refused to go on with the deal and he finally took back his check on the theory that appellants had refused to perform the oral contract. Contradictory evidence was presented to the jury on the issue thus formed, and a verdict for plaintiff for $1,000 resulted. Judgment was duly entered according to the verdict, and defendant appeals.
The contract for sale of land being oral, it was unenforceable under the Statute of Frauds. Ark. Stats., § 38-101. It is well established, however, that a defendant who refuses to perforin a contract unenforceable because of the Statute of Frauds, the plaintiff being willing to perform, must repay to the plaintiff any amounts in good faith paid to the withdrawing defendant. Benton v. Marshall, 47 Ark. 241, 1 S. W. 201; Littell v. Jones, 56 Ark. 139, 19 S. W. 497; Keener, Quasi-Contracts, 277; Woodward, Quasi-Contracts, 147. “. . . when one who has given his performance in return for a promise of a specific exchange does not receive that exchange, there is failure of consideration on the one side and unjust enrichment on the other; and his knowledge beforehand that he may not receive that exchange does not alter the case. It would be as unfortunate in law as in morals if one who had paid a thousand dollars for an absolute promise of a piece of land believing that the vendor’s word was as good as his bond, though knowing the oral agreement was legally unenforceable, should be without remedy if the vendor or his representatives failed to perform. In fact, without regard to the plaintiff’s knowledge, or lack of knowledge, of the invalidity of the oral contract, he is allowed to recover the fair value of what he has given when the defendant fails or refuses to perform on his part. It is immaterial whether the plaintiff has parted with money, property, or services.” 2 Williston, Contracts (Rev. Ed., 1936) § 534.
Appellant asserted that a second oral contract was made for sale of the same property to appellee for $15,000, but evidence to support this allegation is wholly lacking. The $15,000 figure was arrived at merely by deducting from the agreed $16,500 figure (a) the $1,000 ■which appellee had already paid, and (b) $500 which ap-pellee had originally agreed to pay to the real estate man, Smith, who brought appellant and appellee together, Smith having in the meantime decided that he would not collect the $500 because he had no realtor’s license at the time of the transaction. See Ark. Stats., § 71-1311.
Appellant Gilton himself testified: “I told him he could have the place for $15,000. Q. Why did you deduct $1500 from the purchase price of the place? A. I con sidered lie bad paid $1000.00 on it; after Smith gave liim his commission, and ho said that he gave it to him, that cut it down to $16,000. I gave him credit for the $1000.” Grilton’s testimony makes it very clear that the $15,000 represented nothing more than a recalculation of the amount then payable under the earlier oral contract. The talk between the parties about a $15,000 payment was merely a part of the conversation about their oral contract, conversation which preceded the final break when one party or the other backed out of the contract.
The testimony at the trial was in sharp conflict as to whether appellee had or could immediately procure enough cash to complete the payment called for by the oral contract, whether he made to appellant a tender of payment conditioned only on delivery of a good deed to the land, and whether appellant refused to perform the contract after such tender. The trial court submitted these issues to the jury under instructions which correctly stated the law, and the jury found for the plaintiff appellee. We have concluded that there was sufficient evidence before the jury to sustain its verdict. There was testimony by the plaintiff, supported by corroborating testimony of other witnesses, that he had secured the money so that the check he posted with a third party would have been honored, and that appellants nevertheless refused to proceed with delivery of the deed unless other conditions clearly not included in the original contract were also complied with by plaintiff. In view of this evidence we are not free to supersede the jury’s verdict.
The judgment of the Circuit Court is affirmed.
(xRiKETN Smith, C. J., not participating.
Plaintiff Chapman also sought $500 damages for inconvenience and expense allegedly incident to the loss of the deal, but the jury made no award on this part of the complaint, and the claim may be deemed to have passed out of the case on appeal, | [
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Ed. F. McFaddin, Justice.
This appeal-stems from the efforts of two School Districts to consolidate and thereby avoid the effects of Initiated Act No. 1 of 1948, since, united, the two Districts would have had more than 350 pupils. The Districts, both in Columbia County, were Atlanta School District No. 9 (hereinafter called “Atlanta”), and Calhoun District No. 3 (hereinafter called ‘ ‘ Calhoun ”).
On November 30, 1948, a petition was filed with the Columbia County Board of Education, purporting to contain the signatures of a majority of the qualified electors of the Atlanta District, and praying that Atlanta be dissolved and its territory annexed to Calhoun, whose School Board had duly certified consent to such annexa- tioii. This proceeding was unde]- Ark. Stats. § 80-408, as modified by $ 80-418. The Comity Board duly advertised that the date of the hearing on the petition wonld he January 20, 1949; and at the meeting on that date, a number of the petition signers, by written demand, had their names removed from the petition, as provided by said § 80-408. With such names removed, the County Board found that the names remaining were less than a majority of the qualified electors of the Atlanta District; and, accordingly, the County Board dismissed the petition.
Appellants then appealed to the Circuit Court where there was a lengthy trial on the question of whether the names remaining on the petition constituted a majority of the qualified electors of the Atlanta District. The Circuit Court found that there were 138 qualified electors in the Atlanta District; and that the petition contained the names of only 68 qualified electors. Accordingly, the Circuit Court dismissed the petition. Appellants bring the case to this Court and claim that the Circuit Court was in error: (I) in holding certain persons to be qualified electors; (II) in refusing to allow certain names to be restored to the original petition; and (III) in holding-other names properly stricken from the original petition. We consider these contentions:
I. Holding Certain Persons to Be Qualified Electors. Section 80-408 Ark. Stats, says that the number of qualified electors “ . . . shall be determined as of the date said petition is considered by said county board of education, . . . ” The County Tax Collector produced the list of all persons who had paid poll tax in the Atlanta District from October 2, 1947, to October 1, 1948. The Court then proceeded to add the names of others shown to be qualified electors, and to strike from the poll tax list the names of some shown to have abandoned residence.
A. “Maiden Voters.” To the list of qualified electors, the Court added three “maiden voters” — i. e., those who recently became of age. They were: T. C. Ware, who became twenty-one years of age on December 8, 1948; Thurston Ware, who became twenty-one years of age on May 21, 1948; and Curtis Lee Wyrick, who became twenty-one years of age on December 22, 1948. We hold that the Circuit Court was correct in holding each to be a qualified elector. Amendment No. 8 to our Constitution says: “ . . . persons who make satisfactory proof that they have attained the age of twenty-one years since the time of assessing taxes next preceding said election, and who possess the other necessary qualifications, shall be permitted to vote.” Under § 84-414, et seq., Ark. Stats., the “ . . . time for assessing taxes next preceding . . . ” January 20, 1949, expired on April 10, 1948. Each of these three young men became twenty-one years of age after April 10, 1948, so under the constitutional provision they were qualified to vote upon making-proof of such fact and possessing the other necessary qualifications. Such proof was made. The fact that Act 220 of 1947 abolished the requirement of assessing poll tax does not change the plain constitutional language, as above quoted. In short, any person being otherwise qualified and becoming twenty-one years of age after April 10, 1948, would be entitled to vote without poll tax until October 2, 1949.
B. School Patrons Who Had Transferred Out of the District. Wade Jennany and six other residents of the Atlanta District had transferred their children to other School Districts; and appellants claim that because of such transfers these seven persons were not qualified electors in the Atlanta School District. Jones v. Floyd, 129 Ark. 185, 195 S. W. 360, is against the appellants’ contention. In that case we held that Howard County residents who had transferred their children to a Pike County School District could not vote in the Pike County School District election; and we said:
“Residence is, therefore, an essential prerequisite without which one cannot become qualified to vote, and this residence must be in the county in which he proposes to vote, and in the precinct, town or ward in which he proposes to vote. He can vote where he resides and not elsewhere.”
In the case at bar, Wade Jermany and each of the other six “transfers” resided in the Atlanta District and had duly paid poll tax; and each was a qualified elector in the Atlanta District: and the Circuit Court was correct in so holding.
C. Actual Residence of Certain Poll Tax Payers. Appellants claim that each of six named persons — being Dr. Horace Beene, Mrs. Horace Beene, Bruce Hendricks, Mrs. Bruce Hendricks, A. C. Shepherd and Felton Robinson — was not a qualified elector in the Atlanta District, even though each had a poll tax. Appellants sought to show that each such person was not an actual resident of the Atlanta District on January 20, 1949, the date of the hearing before the County Board of Education.
We have carefully checked the transcript as to each of these six named persons; and we find that no exception was preserved by appellants to the ruling of the Court at the time the Court held each of the six to be a qualified elector. The procedure in the case was as follows: (a) the Court heard the evidence as to each challenged person; and (b) immediately and finally ruled as to each such person. At such time appellants saved no exception to the Court’s ruling; and in the absence of a seasonable exception, there is nothing for us to review. See St. Louis, I. M. & So. Railway Co. v. Brown, 100 Ark. 107, 140 S. W. 279; Jenkins v. Quick, 105 Ark. 467, 151 S. W. 1021; Cotner v. Bangs, 137 Ark. 394, 209 S. W. 80; and Alldread v. Mills, 211 Ark. 99, 199 S. W. 2d 571. In 3 Am. Jur. 51, the rule is stated: “As a general rule an exception to a ruling should be taken at the time the ruling is made”; and in 4 C. J. S. 760, the text says: “In order to be effective in saving error for consideration on appeal, exceptions taken to proceedings during trial must be timely.”
It was not until after the tabulation and announcement of the Court’s final decision, on the following day, that appellants sought — and then in a-general or “blanket” remark — to except to the Court’s ruling regarding any of these six persons. Such attempt came too late. Appellants had apparently acquiesced in each ruling made by the Court; and it was not until the final count disclosed a result adverse to them that appellants sought to ‘ back up ’ ’ and except to the rulings which had previously been unquestioned. Because of the failure to register timely exceptions, we hold that the question of the residence of each of these six challenged voters is not properly before us.
II. Refusing to Allow Certain Names to Be Restored to the Original Petition. S. J. Chisholm and three other persons signed the original petition for the annexation of Atlanta to Calhoun, but at the hearing before the County Board of Education they asked to have their names removed from the petition, as allowed under § 80-408, Ark. Stats.; and the names were so removed. When the case was tried in Circuit Court, S. J. Chisholm and the other three persons sought to have their names restored to the original petition, and offered proof that they had been defrauded in having their names removed. A consideration of the evidence indicates that it was more a case of persuasion than fraud by the last group who “contacted” each of the four parties. The Statute and the cases hold that no name can be restored to the petition after the hearing before the County Board of Education. See Dansby School District v. Haynes School District, 210 Ark. 500, 197 S. W. 2d 30. So under the facts here presented, the cited case is full authority for the Circuit Court’s ruling which refused to restore the names of S. J. Chisholm and the other three parties to the annexation petition in the trial in the Circuit Court, since the names had been duly stricken prior to the hearing before the County Board.
III. Holding Other Names Properly Stricken Prom Original Petition. Finally, appellants claim that eleven names were stricken from the original petition without any proof that the signatures were genuine on the with drawal instrument. The situation was as follows: Lillian Carter and ten others had signed the original petition for annexation of Atlanta to Calhoun, hut at the hearing before the County Board these eleven had their names removed from the petition by written instrument of withdrawal, in accordance with said § 80-408 Ark. Stats. When the case was tried in Circuit Court, it was stipulated that each and every signature on the original annexation petition was genuine; but appellants say that there was no such stipulation as to the genuineness of signatures on the withdrawal instrument: and so appellants further claim that these eleven names should not have been considered as withdrawn from the original annexation petition. To support their argument, appellants quote from Scott v. County Board of Education, 182 Ark. 472, 31 S. W. 2d 736, which in turn quoted from an earlier case:
“ ‘The court properly eliminated from its consideration a petition . . . because there was no competent testimony that the names thereon were genuine signatures of electors residing within the district.’ ” Hughes v. Special School District, 135 Ark. 454, 205 S. W. 824.
In making their said contention, appellants appeal' to lose sight of the fact that the signatures on the original annexation petition were stipulated to be genuine. With those admitted^ genuine signatures before it, the County Board in the first instance — and the Circuit Court on appeal — had only to compare a signature on the withdrawal instrument against the admittedly genuine signature of the same person on the original annexation petition. Thereby it was possible to determine the genuineness of the signature on the withdrawal instrument. Appellants have not called our attention to any place in the transcript where any question was raised in the Circuit Court as to any signature being other than genuine; but even if such issue had been presented, the stipulation as to the genuineness of signatures on the original annexation petition supplied the proof from which the Circuit Court could have verified — and evidently did verify —the signatures on the withdrawal instrument.
CONCLUSION
Appellee has also urged: (a) that there was no ap-pealable order made by the County Board of Education; and (b) that the Statute (§ 80-408 Ark. -Stats.) does not contemplate an appeal from the County Board’s finding that the annexation petition contained an insufficient number of signatures. We have not considered these contentions, because we are convinced that, at all events, the appellee should prevail on the fact that the petition for annexation contained an insufficient number of signatures. Therefore, the judgment of the Circuit Court is affirmed; and for good cause shown an immediate mandate is ordered to issue.
The text of this Act may be found on Page 1414, et seq., Acts of Arkansas 1949. The Act was considered in Stroud v. Fryar, 216 Ark. 260, 225 S. W. 2d 23, and County Board of Education v. Norfork School District, 216 Ark. 934, 228 S. W. 2d 468.
Sec. 80-408 says: ! ! majority of qualified electors of each district . . wheres Act 235 of 1947 (now found in Sec. 80-418 Ark. Stats.) merely requires the majority of the dissolving District, and the consent of the Board of Directors of the annexing District. The latter was the procedure here. See Austin School District v. Young, 212 Ark. 75, 204 S. W. 2d 902, and Wallace School District v. County Board of Education, 214 Ark. 436, 216 S. W. 2d 790.
Italics our own.
See Blackard v. Kolb, 212 Ark. 332, 205 S. W. 2d 857. | [
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Carleton Harris, Chief Justice.
Jimmy Wayne Cox, appellant herein, on September 22, 1972, entered a plea of not guilty to a charge of burglary and grand larceny; however, on October 3, 1972, Cox, being represented by a retained attorney, changed his plea, entering a plea of guilty to the offenses charged and with being an habitual criminal. The Pike County Circuit Court sentenced Cox to twenty-one years for burglary and twenty-one years for grand larceny, the sentences to run concurrently. Approximately two weeks later, appellant prayed for an appeal from the sentence imposed, this being denied by the circuit court because of the plea of guilty. In November and December, appellant filed petitions for a Writ of Habeas Corpus and for a hearing under Criminal Procedure Rule I, alleging that his guilty plea was entered under duress; that the State failed to show a prima facie cause for arresting him; that he had been arrested on a misdemeanor charge and evidence obtained from an illegal search of his automobile resulted in the felony charges. A hearing was granted, and conducted on January '30, 1973, petitioner being represented by coun>appointed counsel, the court pointing out, however, that it was only going to hear evidence on the allegation that the guilty plea was entered under duress. Evidence was taken and the petition was denied, and from the order denying relief, appellant brings this appeal.
Cox testified that he thought he would get a lighter sentence when he pleaded guilty, although he admitted that his attorney told him that he didn’t know what amount of time he would receive; he also stated that he “had no idea” what sentence he would receive. Subsequently, however, he stated that he had been informed on the same morning'of the sentencing that he was going to be sentenced to twenty-one years. =He also testified that he was placed under duress because he had learned that his brother, Jester Cox, would testify that he (Jester) had received the two guns, which had been stolen, from him (appellant), and he also stated that knowing that he would be sentenced as an habitúal criminal placed him under duress. His testimony relative to this last is rather jumbled and it is not at all clear how this charge placed him under duress to plead guilty. Cox admitted that he was told that he was entitled to a jury trial. To practically every question asked by the court as to the proceedings on the date the plea was entered, appellant would simply answer that he was under duress. Jester Cox testified that he too was charged with burglary and grand larceny, and had originally told officers that he bought the two guns from a man on the highway, but after being told that “wouldn’t work”, changed his statement and implicated his brother. He said that he had stated he received the guns from his brother, but that actually he bought them from a man in Oklahoma. Jester Cox had received a three year suspended sentence. Retained counsel for Jimmy Wayne testified that the latter was advised of all of his rights and that appellant had told him in the presence of his brother that he desired to change his plea to guilty.
The record of the proceedings makes it quite clear that Cox was advised by the trial court of his right to a trial by jury, was advised that he was entering a plea of guilty to burglary and grand larceny as an habitual criminal, with the court specifically mentioning that it was alleged that he previously had been convicted of four or more felonies.
We very quickly hold that there is no showing that appellant entered his plea under duress. There is no proof, nor allegation, that he was “pressured” into entering the plea by any sheriff or policeman, member of the prosecuting attorney’s office, his own counsel, or the court. It is not asserted that he was under duress from his brother, or any other individual. It simply appears that Jimmy Wayne decided the advisable thing to do was to plead guilty. Of course, there are many reasons why one may decide to plead guilty; he might learn that several persons that he had not known about had witnessed the commission of the felony; he might discover, contrary to his original belief, that he could be positively identified as a par ticipant in the crime, etc. The fact that another participant in the crime, even a brother, decides to change a plea of not guilty to guilty certainly does not establish duress, although it may well influence a defendant to change his plea. After all, it is to be doubted that any defendant would enter a plea of guilty if he thought he would be acquitted by a jury, or even if he thought he would receive a lesser punishment. So — it- may well be that the brother’s statement that he had received the guns from appellant, and the fact that he was charged with being an habitual offender, could have carried some weight in appellant’s deliberations of whether a plea should be entered — but, as stated, there is not a line of evidence that anyone pressured Jimmy Wayne Cox into entering a plea; it seems entirely clear that this was his own decision.
As to his argument that an illegal search was made of his car, we have held repeatedly that a plea of guilty, which was not coerced or obtained under duress, waived any defenses that might have been interposed on trial. In Rimmer v. State, 251 Ark. 444, 472 S.W. 2d 939, this court said:
“The plea of guilty, which is not shown to have been coerced, had the effect of waiving defenses that might otherwise have been interposed. McMann v. Richardson, 397 U.S. 759 (1970); Brady v. United States, 397 U.S. 742 (1970).”
See also Treat v. State, 253 Ark. 367, 486 S.W. 2d 16, where an argument somewhat similar to the one here presented was mentioned by this court. We said:
“Finally, it is contended that the court erred in not setting aside the plea of guilty to the charge of kidnapping, it being argued that the negotiated plea of guilty to this offense was brought about by the untrue testimony of the prosecuting witness which had been responsible for his conviction of assault with intent to rape; in other words, if he had not been found guilty by the jury, he would not have entered a plea of guilty. We find no merit in this contention. The record reflects that no complaint was made by appellant concerning his representation and that the attorney who originally represented him explained thoroughly the effect of the plea of guilty to the charge; ##* though it has no bearing on the legal question involved, it is noted that it was ordered that the sentence given under the plea of guilty was to run concurrently with the sentence rendered in accordance with the jury verdict.”
It is next argued that there were only two lawful prior offenses alleged, and appellant was illegally sentenced under the Habitual Criminal Act. It is stated that Cox was first convicted as a juvenile, and this does not count as a felony conviction. This was a conviction on January 21, 1964, and the record shows that he entered a plea of guilty in the Pike County Circuit Court — and not in Juvenile Court. On April 7, 1965, there was another conviction for grand larceny, and there does not appear to be any question but that this constituted a felony conviction. On January 18, 1967, appellant entered a plea of guilty to three different counts of burglary, Cox being sentenced on each charge to a term of four years, sentences to run concurrently. The proof reflected that there were three distinct offenses, a burglary at O. D. Tipton’s Grocery at Umpire, Arkansas, a burglary at Joda’s at Nashville, Arkansas, and a burglary at Freel’s at Nashville, Arkansas. It is argued that the plea of January 18 should be treated as one conviction. We do not agree. While the point was not directly passed on in Thom, etc. v. State, 248 Ark. 180, 450 S.W. 2d 550, there was some discussion of the contention. We said:
“Here appellant argues that for purposes of imposing sentence under the habitual criminal statute, appellant should have been sentenced under sub-section 2 of Ark. Stat. Ann. § 45-2328 instead of sub-section 3. He then argues that we should adopt the reasoning of State v. Simpson, (Wash. 1929) 277 P. 998, which holds that a conviction under a habitual criminal statute on an information containing two or more counts arising out of acts committed simultaneously should amount only to one offense. The State on the other hand argues that we should follow those states holding to the contrary. Under the record here we find that we need not answer either argument because of the nature of the record.
“The information to which appellant pleaded guilty alleges, ‘(T)hat defendant was convicted of second degree burglary and sentenced to two to five years in 1962 in the State of Indiana; defendant was convicted of two counts of burglary and one count of grand larceny in Sebastian and Scott Counties in 1966 and was sentenced to three years.’ It is difficult for us to understand how a person could commit two burglaries simultaneously or commit two burglaries simultaneously in two different counties, even if we could construe the 1966 grand larceny charge as growing out of a simultaneous act committed in one of the burglaries.”
Here, to paraphrase, it is difficult for us to understand how a person could commit two burglaries simultaneously in two different towns, or of two different establishments in the same town. Our habitual criminal statute (Ark. Stat. Ann. § 43-2328 [Supp. 1971]) refers to “any person convicted of any offense” *** the “second offense” *** the “third offense” *** the “fourth or subseuqnet offense.” Certainly the burglaries at O. D. Tipton’s Grocery in Umpire, Arkansas, Joda’s at Nashville, Arkansas and Freel’s at Nashville, Arkansas are all three different burglaries, i.e., different offenses, and the plea of guilty to each one constituted conviction for a different offense. We like the logic of the Louisiana Supreme Court in the case of State of Louisiana v. Williams, 77 So. 2d 515. There, Williams was accused of being a fourth offender, having previously been convicted and given consecutive sentences of three years each in three different cases, all convictions occurring on the same day. The trial court concluded that Williams could only be sentenced as a second offender, since it viewed the three previous convictions on the same day as constituting only one conviction. The Supreme Court reversed this holding, stating:
“The district judge, noting that the alleged three previous convictions occurred on the same day (although for separate crimes), reasoned that under the multiple offender statute the ‘Enhanced punishment for one who “commits” an offense after having previously done so, necessarily contemplates an interval between the previous “conviction”, and the “commission” of the next offense.’ Accordingly, he concluded that the defendant could be sentenced only as a second offender (he viewed the three previous concurrent convictions as constituting, for the purpose of the statute, merely one conviction); and he ordered ‘that the State elect which one of the three previous convictions alleged to have occurred in the State of Alabama it will proceed upon, and insofar as the remaining two convictions, it is ordered that same (bill of information) be quashed, set aside, and held to be of no effect.’
“Alleging that the ruling of the trial court was contrary to our interpretation of the statute and our holding in State v. Clague, 224 La. 27, 68 So. 2d 746, 747, the state, by means of an application for remedial writs, successfully invoked our supervisory jurisdiction.
“In the Clague case (the factual situation of which was substantially identical with that presently under consideration) the defendant, immediately following his conviction on April BO, 1953 for simple burglary, was charged and sentenced pursuant to the provisions of the multiple offender statute as a triple felonious offender, he having been convicted and sentenced in 1951 for two similar crimes committed on the same date in adjoining premises of a double structure. At no time was he charged and sentenced as a second offender. In affirmation of the trial judge’s action this court observed: ‘We do not think that it is necessary for the defendant to have been charged as a double offender in order that he might be charged as a triple offender. What is mandatory is that he has been tried and convicted of two previous offenses. * * *
‘The punishment is for the third crime, and it is heavier because the accused has become an habitual offender. The defendant becomes a third offender at the time he commits the third crime, and the punishment is incurred at that time. ***’
“With the view and for the purpose of having us overrule the Clague decision the argument is made that under multiple offender legislation, which is directed at recidivism, ‘The increased penalties for habitual offenders are not intended to follow according to a numerical count of the offender’s crimes, but are imposed for his successive failures to rehabilitate himself. The result is that two or more offenses of a contemporaneous nature amount to but one offense.’
“This argument might be effective if addressed to the lawmakers. But with respect to a judicial interpretation of the particular statute under consideration it has no merit.”
We agree with the trial court that the petition was without merit.
Affirmed.
Of course, he received two twenty-one year sentences, but it was ordered that they run concurrently. | [
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John A. Fogleman, Justice.
Appellant Ruth Tompkins was injured when the automobile driven by appellee Don Duncan struck her vehicle, which was stopped behind a school bus. She brought suit against appellee for injuries suffered by her. She appeals from a judgment based upon a jury verdict awarding her damages of $1,000. Her sole ground for reversal is that the jury verdict is grossly inadequate. Her hospital expenses were $55.25. The cost of replacing her glasses broken in the collision was $50.00. She was treated for a month or two by Dr. Billy V. Hall, whose bill was $89.00. She was examined two or three months after the collision by Dr, Coy Kaylor, whose bill to her amounted to $50.00. There was evidence that she had taken, and was still taking, medication, but there is no evidence as to its cost. Appellant testified that she was "off work” three days. The abstract reveals no evidence as to present or future loss of earnings.
Appellant was 47 years of age, with a life expectancy of 25 years, according to the American Table of Mortality. She suffered injuries which, according to her testimony, left her with a stiff neck and headaches. She said that she still had continuous pain and that sitting at a desk for any length of time, as she must do as a clerical employee at Gravette Hospital, causes stiffness and tension in her neck for which she has taken pain pills. She also stated that she has a few problems with her normal household duties. She has played some golf since the incident, but said that she experienced difficulty. She drives her automobile, but testified that she has difficulty in backing it because she must turn her head and is unable to twist her neck.
Dr. Kaylor testified that Mrs. Tompkins suffered a 25% loss of motion of the cervical spine in all ranges, and evaluated her permanent disability to the body as a whole at 10 to 15%. He felt that Mrs. Tompkins will need to continue pain medication and muscle relaxants.
Appellant recognizes the impact of Ark. Stat. Ann. § 27-1902 (Repl. 1962) and such decisions as Harlan v. Curbo, 250 Ark. 610, 466 S.W. 2d 459, but argues that this particular verdict is so grossly inadequate on its face that it shocks one’s sense of justice. She suggests that the award, in view of her injuries, should be considered as nominal. Neither the statute nor our decisions permit any exception because of gross inadequacy of any verdict when the damages are not susceptible of precise pecuniary measurement with reasonable mathematical certainty. See Harlan v. Curbo, supra; Munson v. Mason, 245 Ark. 686, 434 S.W. 2d 815; Worth James Construction Co. v. Herring, 242 Ark. 156, 412 S.W. 2d 838; Law v. Collins, 242 Ark. 83, 411 S.W. 2d 877.
This brings us to a consideration of appellant’s claim that the damages should be considered as only nominal. In fixing an amount to be awarded as nominal damages in Cathey v. Arkansas Power & Light Co., 193 Ark. 92, 97 S.W. 2d 624, we said that the amount of nominal damages may be variable, dependent somewhat upon the amount of the recovery and the circumstances of the particular case. In that decision we followed and quoted extensively from Western Union Telegraph Co. v. Glenn, 8 Ga. App. 168, 68 S.E. 881. In that case it was recognized that the term was a relative one, which contemplated a trivial sum. These cases, of course, relate to the propriety of the amount awarded when the party recovering was only entitled to nominal damages, but the principles should be equally applicable when we attempt to distinguish between nominal and substantial damages, even though the words may have a slightly different shade of meaning in the different contexts. See Black’s Law Dictionary, Third Edition; Kluge v. O’Gara, 227 Cal. App. 2d 207, 38 Cal. Rptr. 607 (1964). In the context of a case similar to this we made the distinction by considering nominal damages to mean damages in name only, not real or actual. Riley v. Shamel, 249 Ark. 845, 462 S.W. 2d 228. For the purpose of setting aside a personal injury judgment in the absence of any other error, as appellant seeks to do here, the inadequacy of damages not susceptible of reasonably precise pecuniary measurement will be considered as an appropriate ground only when the award of damages is so nominal as to amount to a refusal to assess damages. Riley v. Shamel, supra. See also, Dunbar v. Cowger, 68 Ark. 444, 59 S.W. 951; Carroll v. Texarkana Gas & Electric Co., 102 Ark. 137, 143 S.W. 586; Martin v. Kraemer, 172 Ark. 397, 288 S.W. 903. When we consider that the verdict is more than four times the damages which are subject to precise mathematical determination, and that the excess amounts to more than $750, we cannot say the damages awarded were merely nominal rather than substantial, even though the verdict seems conservative.
The judgment must be affirmed. | [
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Hart, C. J.,
(after stating the facts). The shipment was an interstate one, and the law as declared by the Supreme Court of the United States must govern. St. L. S. F. Ry. Co. v. Burford, 180 Ark. 562, 22 S. W. (2d) 378; and Chesapeake & Ohio Railroad Co. v. Thompson Mfg. Co., 270 U. S. 416, 46 S. Ct. 318. The respective theories of the parties to the suit on the question of negligence were submitted to the jury upon the principles of law decided in the cases above cited.
No objection is urged as to the instructions on the question of negligence, but it is earnestly insisted by counsel for appellant that the court erred in instructing the jury on the measure of damages. The court gave to the jury four instructions. In two of them the respective theories of the parties on the question of negligence were submitted to the jury, and the remaining two instructions given by the court related to the measure of damages in the event of a recovery by the plaintiff. It is earnestly insisted that the judgment should be reversed because the court erred in giving instruction No. 4 on the measure of damages. We need not set out the instruction because it is apparent from the record that the plaintiff was not prejudiced by the giving of the instruction whether or not it was erroneous. The jury returned a verdict in favor of the defendant and thereby found that there was no negligence on the part of the defendant which would warrant a recovery by the plaintiff for any amount on account of the alleged negligence of the defendant. If the jury found that there was no negligence on the part of the defendant in the carriage of the goods, the plaintiff was not prejudiced by giving an erroneous instruction on the measure of damages. Therefore the judgment will be affirmed. | [
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Humphreys, J.
Appellant brought this suit against appellees in the circuit court of Marion County to recover the value of one black mare mule, one Springfield wagon and one set of double harness, which were seized and sold by the sheriff and his deputy, two of the appellees herein, under a writ of attachment issued out of the court of H. F. Wood, a justice of the peace in said county, in an attachment proceeding in which Yeatman-Gray-Adams Grocery 'Company, one of the appellees herein, was plaintiff, and E. E. Beavers, the father of appellant, was defendant, alleging as ground for recovery that the property seized and sold was his and not Ms father’s.
Appellees filed an answer denying’ appellant’s ownership of the property, and the issue thus joined was submitted to a jury, under correct instructions, resulting in a verdict for appellees and a consequent judgment dismissing appellant’s complaint, from which is this appeal.
Appellant contends for a reversal of the judgment upon the ground that, the undisputed proof disclosed that he was the owner of the property. This conclusion is reached by appellant because he and his father testified that he bought the property in question, or the major part thereof, from his father and paid him cash therefor. It is true both testified that in 1926 he bought the major portion of the property from his father with money which he procured from the sale of a cotton crop and cattle which he raised while living with his father. There are circumstances, however, in the record showing- that the property belonged to his father, and that the sale was merely a pretended one to defeat his father’s creditors, some of which will now be referred to. Prior to the attachment proceeding, both appellant and his father had gone to Oklahoma, appellant leaving first. When appellant’s father left, he turned the property in question over to a third party in whose care it was at the time it was attached. After the property was levied upon, appellant and his father returned, but neither informed the sheriff that the property belonged to appellant. Appellant’s father filed an answer in the attachment proceeding, but made no claim therein that the property belonged to his son. Appellant did not intervene in the attachment proceeding and claim the property, nor did he replevy same from the sheriff or forbid the sale thereof, although it was retained by the sheriff after seizure for fifty days before it was sold. Appellant and Ms father testified in the attachment proceeding that the property belonged to appellant, and this was the extent of any effort made by him to regain the property. Appellant did not even bring this «nit for damages until more than a year after the sheriff sold the property under the attachment proceeding. The jury had a right to consider this conduct on Ms part in weighing the testimony of his father and himself relative to the ownership thereof. It is true appellant had a right under the law to bring the suit for the value of the property instead of intervening in the attachment suit or instead of bringing an action in replevin before the sale thereof, but, notwithstanding this right, the course he pursued was out of the ordinary, and, we think, a very strong circumstance tending to show that the sale of the property by his father to appellant was not a bona fide sale.
We are unable to say after a very careful reading of the testimony that the verdict and judgment are unsupported by any substantial evidence.
No error appearing, the judgment is affirmed. | [
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Hart, O. J.
Appellant prosecutes this appeal to reverse a decree of the chancery court dismissing her complaint for damages for breach of warranty and her prayer to restrain the defendant administrator from paying a claim of the Drew County Bank & Trust Company against the estate of "W. J. Pinson, deceased.
The cause has been before us several times. In Fox v. Pinson, 172 Ark. 449, 289 S. W. 320, it was held that a vendor who conveyed land by deed with warranty against incumbrances cannot foreclose his mortgage, taken to secure the purchase money, before clearing the record of all incumbrances. It was further held that, in the absence of an accelerating clause in purchase-money notes or mortgage, a mortgagor cannot enforce his lien for the total indebtedness in default of payment of a part thereof.
Upon the remand of the cause, the court appointed John H. Pinson, administrator of the estate of W. J. Pinson, who had died during the pendency of the suit. Thereafter Yetta Fox filed her cross-complaint, calling on the administrator of the estate of. W. J. Pinson, deceased, to defend her title under the warranty deed of said W. J. Pinson, against those who are claiming title to the property paramount to her title. The court sustained a demurrer to the cross-complaint; and, Yetta Fox declining to plead further, her cross-complaint was dismissed for want of equity. Upon appeal, the court held that in a suit to foreclose a mortgage, a cross-complaint calling upon the administrator of the estate of the grantor to defend the title under his warranty and setting up dispossession and destruction of a building on the premises constitutes a cause of action, and it was error to sustain a demurrer thereto. Fox v. Pinson, 177 Ark. 381, 6 S. W. (2d) 518.
After the second remand, additional testimony was taken, and at the conclusion thereof, and before submis.sion, Yetta Fox took a voluntary nonsuit as to her cross-complaint. The court then rendered a decree in the case on the issues remaining; and the cause was before this court in Fox v. Pinson, 180 Ark. 68, 20 S. W. (2d) 645. The issues decided upon that appeal have no bearing on the question here involved and need not be stated.
The present suit was commenced by Yetta Fox against John E. Pinson, administrator of the estate of W. J. Pinson, deceased, and others, on the first day of February, 1930. The original suit was commenced as a mortgage foreclosure proceeding by W. J. Pinson against Yetta C. Fox. In that suit it was agreed between the parties that the First .National Bank of El Dorado had a mortgage on the property in controversy and that the balance due under it. on April 1, 1925, was $4,500 with interest at the rate of ten per cent, per annum. It was stipulated that W. J. Pinson died on September 26, 1926., and that the building- situated on said property was destroyed by fire on September 29,1926. It was also stipulated that the cause was revived in the name of the heirs of W. J. Pinson, deceased, and in the name of John Pin-son, special administrator of his estate, on September 28, 1927. It was stipulated that Yetta C. Fox took a voluntary nonsuit on her cross-complaint February 4, 1929.
The opinion upon the first appeal of Fox v. Pinson, 172 Ark. 449, 289 S. W. 329, was delivered on December 6, 1926. After the case was remanded to the chancery court, the cause was revived against the heirs and the administrator of- the estate of W. J. Pinson, deceased, on April 4,1927. On April 6,1927, Mrs. Fox filed her cross-complaint, in which she alleged that W. J. Pinson, the original plaintiff, had died since the institution of the action, and she asked that his widow and his heirs at law and John II. Pinson, as administrator of the estate, be made parties defendant. In her cross-complaint she sets up facts which entitled her to affirmative relief; and in this connection it may ¡be stated that the cross-complaint was filed within a year after the appointment of the ad-, ministrator of the estate of W. J. Pinson, deceased; and the institution of her action against the administrator of said estate by way of cross-complaint was equivalent to an exhibition of her claim ag’ainst the estate and prevented the statute of nonclaim from running.
The record shows that she dismissed her cross-complaint on February 4, 1929, and commenced the present suit on the first day of February, 1930, which was less than one year after the voluntary dismissal of her cross-complaint. It will be seen from the opinions of the court upon the former appeals in this case that there was a breach of the warranty against incumbrances in the deed of W. J. Pinson to Yetta C. Fox by the execution by Pin-son of the mortgage to the bank; and the foreclosure pro ceedings by the bank on its mortgage was equivalent to eviction which gave Mrs. Fox the right to assert damages for breach of covenant as a defense or to ask for affirmative relief by way of cross-complaint. Collier v. Cowger, 52 Ark. 322, 12 S. W. 702, 6 L. R. A. 107 ; and Belleville Land & Lumber Co. v. Griffith, 177 Ark. 170, 6 S. W. (2d) 36.
An action may be dismissed without prejudice to a future action before the final submission of the case to the court. Crawford & Moses’ Digest, <§, 1261. Under § 6969, such plaintiff may commence a new action within one year after such nonsuit has been taken. The present action was commenced within one year after Mrs. Fox dismissed her cross-complaint seeking affirmative relief against the administrator of the estate of W. J. Pinson, deceased, for breach of his covenant against incumbrances in the deed to her.
This brings squarely before us the question whether a cross-complaint of this kind is a complaint within the meaning of § 1261 of the Digest. At common law a plaintiff has an absolute right to discontinue or dismiss his suit at any stage of the proceedings prior to judgment, and this right is a substantial one. It is also the undisputed right of a plaintiff to dismiss a bill in equity before final hearing. L. R. M. R. & T. Ry. Co. v. Manees, 49 Ark. 248, 4 S. W. 778, 4 Am. St. Rep. 45 ; and Ex parte Skinner, 265 U. S. 86, 44 S. Ct. 446.
Under our system of practice, cross-comiplaints are in the nature of independent suits, and parties defendant are necessary to be served in cross-complaints as in original complaints. Bingo v. Woodruff, 43 Ark. 497; and Pilloiv v. Sentelle, 49 Ark. 430, 5 S. W. 783.
There is a distinction between cross-complaints that are merely defensive and those that seek affirmative relief. If Mrs. Fox had merely made allegations in her cross-complaint which would entitle her to damages .by way of defense to the foreclosure suit, this would not have 'made her cross-complaint an independent action. She set up, however, matters which gave her a right to affirmative relief, and asked for all damages against the breach of the covenant which embraces all which she might have asserted in an independent action. This made her cross-complaint something more than merely defensive. She sought affirmative relief as an independent action, and we think this made her a plaintiff within the meaning of • our statute providing for a voluntary dismissal of an action before the final submission of a case to the court by the plaintiff. Her right to dismissal was absolute, and she might bring suit within one year after dismissal. The provision in question has always been treated as a general provision regulating the practice in all cases not excepted from its operation, and the statute does not seem to have made any exceptions in cases where suits are brought against the administrators of estates of deceased persons. Therefore we are of the opinion that Mrs. Fox is not barred of her right of recovery by the statute of nonclaim or by the voluntary dismissal of her cross-complaint.
This brings us to a consideration of her recovery in the present case. As we have already seen, her right to recovery for breach of warranty has been recognized in all of the opinions upon the former appeals in this case. We think she should be entitled to recover under the facts in the record the sum of $11,950 and interest, thereon from May 24, 1925, the date of her constructive eviction. This amount is composed of the following items: $5,000, which she paid on the purchase price; four $500 notes, which she afterwards paid to Pinson and which amount to $2,000; eight $500 notes which she paid to his assignees amounting to $4,000; attorneys’ fees in the sum of $500; and court costs in the sum of $450.32. This makes an aggregate of $11,950.32. The interest from May 24, 1925, the date of her eviction, to the date of the decree at six per cent, should be added. These amounts are allowable under our decisions fixing the measure of damages in cases of this sort. Collier v. Cowger, 52 Ark. 322, 12 S. W. 702 ; Brawley v. Copelin, 106 Ark. 265, 153 S. W. 101 ; Seldon v. Jones, 89 Ark. 234, 116 S. W. 217 ; Bass v. Starnes, 108 Ark. 357, 158 S. W. 136 ; Shelton v. Ratterree, 121 Ark. 482, 181 S. W. 288 ; Smith v. Land Company, 131 Ark. 22, 198 S. W. 107 ; Mayo v. Maxwell, 140 Ark. 84, 215 S. W. 278 ; O’Bar v. Hight, 169 Ark. 1008, 277 S. W. 533 ; Smith v. Thomas, 169 Ark. 1110, 278 S. W. 39 ; and Belleville Land & Lumber Co. v. Griffith, 177 Ark. 170, 6 S. W. (2d) 36.
Therefore, the decree of the chancery court will be reversed, and the canse will be remanded with directions to enter a decree in favor of Mrs. Yetta Fox as indicated in this opinion, and for such further relief as she may be entitled to according to the principles of equity. It is so ordered. | [
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J. Fred Jones, Justice.
Blanche M. Box died testate having named a daughter, Mrs. Martensen, and two grandchildren, Miss Snow and Mrs. Smith, as sole beneficiaries under her will. Mrs. Box willed her jewelry to her daughter Mrs. Martensen, and the remainder of her estate one-half to Mrs. Martensen and the other half to Miss Snow and Mrs. Smith.
Upon the death of Mrs. Box, Mrs. Martensen filed the will for probate and obtained her own appointment as personal representative. On May 10, 1975, she filed her inventory listing the assets of the estate as totaling $786.
Miss Snow and Mrs. Smith filed a petition challenging the inventory and alleging that funds in an account at the First Federal Savings and Loan Association in Fayetteville, Arkansas, were assets of Mrs. Box’s estate and should be included in the inventory of the decedent’s estate. They prayed for the removal of Mrs. Martensen as personal representative and for an accounting of withdrawals she had made from the savings account, both before and after the death of Mrs. Box.
As grounds for a special motion to dismiss, Mrs. Mar-tensen alleged that she claimed the savings account in question as the sole owner; not as an heir or beneficiary having an interest in the estate, but in her own personal right as a stranger to the estate. She alleged that the savings account in question was a joint account with right of survivorship and so listed on the records of the First Federal Savings and Loan Association, and she demurred to the petition on the grounds that the probate court was without jurisdiction to determine the ownership of the funds in the savings account.
The appellants’ petition for the removal of Mrs. Mar-tensen as administratrix and their request for certain admissions were denied by the trial court, but since the case turns on the question of whether the probate court had jurisdiction of the subject matter under the facts and pleadings in this case, we confine our discussion to that issue.
The probate court sustained the demurrer and dismissed the petition for want of jurisdiction of the subject matter. On appeal to this court Miss Snow and Mrs. Smith have designated one point they rely on for reversal. In substance they contend that the trial court erred in ruling that it did not have jurisdiction to hear the subject matter of their petition and in sustaining the demurrer thereto.
The trial court set out a clear and concise memorandum for precedent and as to jurisdiction, said:
“The point raised by demurrer here is that probate court has no jurisdiction to try title to property (the joint savings account) under the facts thus far made apparent. The demurrer admits the allegation of petitioners that there was, and is, a joint savings account in the names of testatrix and administratrix. The demurrer does not admit petitioners’ assertion that the apparent joint savings account is not, as a matter of law, a survivorship account.
Thus, the contest as to the savings account emerges as one between administratrix, claiming ownership, not as administratrix, but in her own right, and the petitioners, claiming, in behalf of the estate, that the account belongs to the estate.
This posture brings the matter squarely within the aegis of the rules announced in Hartman v. Hartman, 228 Ark. 692, and. cases there cited and discussed. Broadly stated, the rule is that probate court has jurisdiction to settle ownership of estate property as between or among contending heirs, devisees and interested persons, on a sort of ‘in house’ basis; but where, as here, a person who is otherwise an heir or devisee claims title in his own right, and not stemming from the will, such person is claiming adversely to the estate and as to other heirs and distributees, and as a stranger to the estate.
Such controversy, thus, must be resolved, not in probate court, but in the forum, either at law or in equity, which would have jurisdiction to try title.”
As above indicated, the trial court relied on our decision in Hartman v. Hartman, 228 Ark. 692, 309 S.W. 2d 737. We do not disagree with the trial court as to the rules announced in Hartman, but we do not agree that rules in Hartman apply to facts in the case at bar. In Hartman the decedent had sold real property prior to his death and had taken in part payment a series of promissory notes falling due annually. The notes were made payable to both Mr. and Mrs. Hartman who were husband and wife. Mrs. Hartman apparently entered into an agreement whereby she assigned her interest in some of the notes to Mr. Hartman in exchange for some remaining land owned by Mr. Hartman and the validity of the assignment was a part of the matter in litigation. Mrs. Hartman admitted by stipulation that the notes had been assigned to the estate of Mr. Hartman, but she apparently had retained possession of the notes. The probate court made no attempt to determine the validity of the assignment but it ordered Mrs. Hartman to deliver the notes in question to the administrator of the estate. We held that the probate court had jurisdiction to order the delivery of the notes to the administrator, and in that case we said:
“This leads to a discussion of the jurisdiction of the probate court in a discovery proceeding. Ark. Stat. § 62-41S provides for a discovery proceeding by the probate court in regard to alleged assets of an estate. Section 62-415 (Rev. Stat., ch. 4, § 50) provided for an attachment of any property found in such proceeding to belong to the estate.
In Moss v. Sandefur, 15 Ark. 381, it appears that if the person in possession of the property in issue has color of title thereto, the probate court does not have jurisdiction to order the delivery of the property to the administrator. And in Ellsworth v. Cornes, 204 Ark. 756, 165 S.W. 2d 57 (1942), it is held that the probate court does not have jurisdiction to determine title to contested property, but it is pointed out that where the contest is between the executor or administrator and parties who claim as heirs or beneficiaries having some interest in the estate and who do not claim adversely or are strangers to it, the probate court has jurisdiction.” (Our emphasis).
In Hartman we pointed out that when the new pro bate court code was adopted in 1949, the old statute for discovery was re-enacted and the former statute providing for attachment was not re-enacted. The Hartman case turned, however, on the conceded fact that Mrs. Hartman had assigned the notes to Mr. Hartman prior to his death. Under this concession the probate court correctly considered the notes as assets of the estate and ordered Mrs. Hartman to surrender the notes to the administrator. Although admitting that the assignment had been made, Mrs. Hartman contended that the assignment itself was void. The probate court did not pass on that issue and it was not before us on appeal. We did point out that the burden was on Mrs. Hartman to establish her alleged invalidity of the assignment and that remedy was still available to her. Another primary difference in Hartman and the case at bar is that Mrs. Hartman was not the admini-stratrix of Mr. Hartman’s estate.
The case of Thomas v. Thomas, 150 Ark. 43, 233 S.W. 808, is more in point with the case before us for in that case the widow of the decedent was the admini-stratrix of his estate. In Thomas the probate court found that certain property was the individual property of the widow and awarded it to her. The brothers and sisters of Thomas contended on appeal that the probate court had no jurisdiction to determine title to property when the dispute was between the administrator and others, and in that case this court said:
“It is true that the jurisdiction of the probate court is confined to the administration of the estate of the decedent. The probate court had jurisdiction to appoint appellee as administratrix of the estate of James Thomas, deceased, and to allot her dower in his estate as his widow. According to the evidence adduced by her, she and her husband lived on a farm in Ashley County, Arkansas, and he had accumulated considerable personal property which was kept on the farm. Certain articles of this property however, belonged to her, and the court gave it to her. In order to properly administer the estate of James Thomas, deceased, and to allot dower to bis widow, it was necessary for the court to determine what property belonged to the estate, and the question of the title to certain articles arose as a necessary incident to the determination of the main matter before the court. In such case the probate court can determine the question of title to the property, for this is necessary in properly administering the estate and allotting the property to those entitled to it as distributees under the statute. King v. Stevens, 146 Ark. 443.”
In the more recent case of Carlson v. Carlson, 224 Ark. 284, 273 S.W. 2d 542, Roy E. Carlson, Jr. was appointed administrator of his father’s estate and he listed a truck as an asset in his inventory filed. The decedent’s widow petitioned the probate court for the exclusion of the truck from the court’s order of sale, asserting that her husband had given the truck to her. After hearing testimony on the matter, the probate court found in Mrs. Carlson’s favor. On appeal to this court the only point raised was “the court’s power to determine that Mrs. Carlson owned the truck.” In this connection this court said:
“As to the contention that the probate court was without authority to vest title to the car in Mrs. Carlson, the answer in so far as this controversy is affected is to be found in Thomas v. Thomas, 150 Ark. 43, 223 S.W. 808, where Mr. Justice Hart said in a unanimous opinion that the probate court, in the exercise of its jurisdiction to administer the estates of decedents, is authorized to determine what property belongs to the estate. See Ellsworth, Administrator v. Cornes, 204 Ark. 756, 165 S.W. 2d 57.”
In the case of Hobbs, Admr. v. Collins, 234 Ark. 779, 354 S.W. 2d 551, cited by the appellants in the case at bar, the decedent Mr. Gaylor, had accumulated bank deposits and bonds worth about $40,000. A Mrs. Collins claimed that Gaylor had given 'her the money and bonds during his lifetime. The administrator of the estate had listed both the money and bonds as assets of the estate and Mrs. Collins filed exceptions to the inventory. The probate court found that Mrs. Collins was entitled to the money in the banks and on appeal to this court the administrator contended that the probate court did not have juris diction to determine the ownership of the money. While no objections to the jurisdiction of the probate court were made until the case reached this court on appeal, in our opinion in that case we said:
“The Probate Court was not without jurisdiction of the subject matter. Carlson, Administrator v. Carlson, 224 Ark. 284, 273 S.W. 2d 542, Thomas v. Thomas, 150 Ark. 43, 233 S.W. 808, King v. Stevens, 146 Ark. 443, 225 S.W. 656, Ark. Stats. § 62-2409. If appellant had not wanted to submit the issue of the ownership of the property to the Probate Court, objection should have been made before a full scale trial was had and then appellant would have been in a position to raise the question on appeal. It appears, however, that the Administrator voluntarily submitted to the jurisdiction of the Probate Court. This can be done. Park v. McClemens, 231 Ark. 983, 334 S.W. 2d 709.”
In Ellsworth v. Cornes, 204 Ark. 756, 165 S.W. 2d 57, we stated a rule which we still adhere to and by which we measure the jurisdiction and distinguish the case at bar. In Ellsworth we said:
“Throughout its history, this court has held that probate courts are without jurisdiction to hear contests of and determine the title to property between personal representatives of deceased persons and third persons claiming title adversely to the estates of deceased persons. Moss v. Sandefur, 15 Ark. 381; Mobley v. Andrews, 55 Ark. 222, 17 S.W. 805; Shane v. Dickson, 111 Ark. 353, 163 S.W. 1140; Fowler v. Frazier, 116 Ark. 350, 172 S.W. 875; Gordon v. Clark, 149 Ark. 173, 232 S.W. 19; Huff v. Hot Springs Savings, T. & G. Co., 185 Ark. 20, 45 S.W. 2d 508; Sides v. Janes, 188 Ark. 386, 66 S.W. 2d 617; Ellis v. Shuffield, 202 Ark. 723, 153 S.W. 2d 535.”
In the case at bar we are unable to accept Mrs. Mar-tensen or Miss Snow and Mrs. Smith as “third persons” claiming title to the funds involved adversely to the estate of Mrs. Box. Mrs. Martensen was the administratrix of the estate with will annexed and it was her duty to marshal all the assets of the estate and distribute them as directed in the will under proper orders and approval of the probate court. If Mrs. Martensen was claiming title to the savings account as a third party and adversely to the estate, she certainly occupied an inconsistent position of claiming against an estate she was required to administer. For all practical purposes she was already in possession of the savings account and the question was whether it belonged to her or to the estate she was administering. If the probate court had no jurisdiction to determine this question, she would probably have no desire to go elsewhere.
Miss Snow and Mrs. Smith are not third persons claiming title to the funds adversely to the estate. They are beneficiaries under the will and as such beneficiaries, they are claiming the funds, not against the estate, but as their lawful share of the estate. If they were third parties claiming the funds adversely to the estate, they, of course, would have ample recourse outside of probate jurisdiction, but such is not the situation in the record before us. Miss Snow and Mrs. Smith would have no recourse against the savings and loan association in this case, because their claim is against the estate and not adversely to it. In any event, a suit by them in chancery or circuit court would place Mrs. Martensen in the conflicting position of defending her personal claim to the property involved as against the estate she is charged with administering, and would place the circuit or chancery court in the position of determining what are, and what are not, assets of the estate actually in the hands, or under complete control, of the personal representative. The fee of a personal representative, as well as the amount of required bond, is based on the value of the assets of the estate being administered and the allowance of such fee and fixing of such bond, fall within the exclusive jurisdiction of the probate court.
We are of the opinion that in the probation of wills or administration of estates the better rule would be that the probate courts do have jurisdiction to determine the ownership of property as between personal representatives claiming adversely to the estate, or adversely to the heirs or beneficiaries of estates claiming as such, and as between personal representatives claiming for the estates and heirs or beneficiaries claiming adversely to the estates.
The order of the probate court is, therefore, reversed and this cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Now Ark. Stat. Ann. § 62-2409 (Repl. 1971). | [
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Mehaeey, J.
This suit was instituted in the Lawrence County Circuit Court by the appellee, Mrs. Orel Bishop, as administratrix of the estate of B. Bishop, deceased, under the Federal Employers’ Liability Act to recover damages for the death of appellee’s husband, who was injured and killed about one mile north of Seligman, Missouri, about 12:32 in the morning of July 4,1928, while in the service of appellant as a brakeman and while in the performance of his duty as such brakeman on one of appellant’s freight trains engaged in interstate commerce. The suit was for the loss of contributions and maintenance and for pain and ’suffering endured by deceased from the time of the accident until his death.
The following facts are undisputed: Deceased, B. Bishop, was 31 years old, physically strong, weighed about 160 pounds, was a careful, good brakeman and a good man. After leaving Butterfield, Bishop, who was riding in the caboose with the conductor and another brakeman, left the caboose when the train got near Seligman, which was the next stop, and started to the head end of the train to help set out some cars. This was in the line of his duty, and he was seen on the third car ahead of the caboose, and when the train got to Seligman Bishop was not seen and the train went on to Rogers, Arkansas, where some cars were to be set out, and it was then discovered that Bishop was not on the train. A search was made for him, a report made to the dispatcher at Rogers and the mangled body was afterwards found about a mile from Seligman. The body was on the outside of the east rail, and there were finger prints as if he had been crawling, and there was blood found on the wheel and front part of the fourth car of chat, the fourth car from the caboose. In going from the caboose to the front end of the train, where he had to go in the performance of his duties, he would go over the cars which were filled with chat and go from one car to another. The cars had ladders and grab irons. He was killed by the operation of the train while in the performance of his duty.
There is a conflict in the evidence as to the negligence of the appellant and as to whether the grab iron was defective or bent. Witnesses for appellee testified that the grab iron on the front of the fourth car from the caboose was defective and bent, it was bent towards the car so that there was very little space between the grab iron and the body of the car. Witnesses for appellant testified that the grab iron was not bent or defective. All the witnesses, however, agree that it was at this place where the appellee’s witnesses say there was a defective grab iron that Bishop fell from the train and was run over and killed. There is no dispute about the blood being on the wheel just behind this grab iron.
Appellant introduced a blue print and a witness testified that the tracks of Bishop could be seen in the chat going the length of the car, and these tracks are shown on the diagram to start at the corner of the car, getting into the middle and walking in the direction the train was going to the far end of the car, and 'then the deceased would go over from this car to the next and the tracks were shown on the first, second, third and fourth cars loaded with chat.
The negligence alleged and relied on is that the bottom side grab iron on the east side of the car at the end of the car was defective and bent and that this defect in the grab iron was the cause of the fall, injury and death of deceased. The evidence as to whether there was a bent and defective grab iron is conflicting. A number of witnesses testified that the grab iron was bent in towards the car, bent in the middle, some of them testifying that it was so bent that it did not stand out more than an inch from the body of the car, and others testifying that it was bent in towards the car an inch and a half. Appellant’s witness who examined the grab iron testified that the grab iron was not bent and was not defective in any way. As to whether the g’rab iron was bent and defective was a question for the jury. This court does not pass on the credibility of the witnesses nor the weight to be given to their testimony. This is the province of the jury. The finding of fact on conflicting evidence by a jury will not be disturbed by this court if there is substantial evidence to support the finding. St. L.-S. W. Ry. Co. v. Burford, 180 Ark. 562, 22 S. W. (2d) 378 ; Consolidated School Dist. No. 1 v. Fitzgerald, 180 Ark. 840, 23 S. W. (2d) 263 ; Walloch v. Heiden, 180 Ark. 844, 22 S. W. (2d) 1020 ; Boddy v. Thompson, 179 Ark. 71, 14 S. W. (2d) 240 ; Gurdin v. Fisher, 179 Ark. 742, 18 S. W. (2d) 245. In returning a verdict in favor of appellee, the jury necessarily found that the grab iron was defective. Appellant earnestly insists that the evidence is insufficient to show that the alleged defective grab iron contributed to Bishop’s death so as to permit a recovery under the Federal Employers ’ Liability Act. This is the important question in the case, and one that has given us much concern. The deceased was a young man, 31 years old, in perfect health, was careful and understood his duties, and how to perform them. The presumption is that he was performing his duties in a careful manner, that he was not guilty of neglig’ence. He was swing brakeman and was in the caboose. There was some switching to be done at Seligman and it was the duty of Bishop to go to the front end of the train before the train reached Seligman. He was performing this duty when he was killed. There was no way he could go from the caboose to the front end of the train while the train was moving, except to go over the cars that were loaded with chat. He would necessarily have to pass from one car to.the other. The presumption, in the absence of evidence, would be that he did this in the proper manner. There is conflicting evidence as to the proper way to cross from one car to the other and as to how he probably crossed. A blue print is in evidence showing footprints in the chat. It is claimed that these footprints were made by the deceased.
A witness named Erbright, a brakeman who was in the caboose with Bishop, and who saw Bishop when he started to the front end of the train, saw him on the car of chat, testified that after they had done their work at Seligman and had gone on to Bogers, Arkansas, and had looked for Bishop and failed to find him, he, witness, went back to the extreme north end next to the caboose, walked from the rear of the car, crossing from car to car toward the engine, and noticed that there were his tracks going across this chat, this loose gravel. No one except witness Erbright saw Bishop after he left the caboose, and he testifies that Bishop got out of the caboose as they were nearing Seligman, and said he was going to the head end to help set out two cars. Witness saw him on the third car of chat ahead of the caboose. This is the last time he was seen alive. This suit, as contended by appellant, is brought under the Federal Employers ’ Liability Act, and the questions of negligence and the evidence necessary to establish negligence must be solved according to the rules laid down by the Federal courts. We said in a case recently decided by this court: “This suit is brought under the Federal Employers’ Liability Act, and, since this act does not define negligence, the question whether the acts complained of amounted to negligence is to be determined according to the common law and according to the rules prevailing in the Federal courts as to what constitutes negligence under the common law. However, there is no difference between the decisions of the Federal court and of this court as to what constitutes negligence.” Mo. Pac. Rd. Co. v. Skipper, 174 Ark. 1083, 298 S. W. 849.
Not only -has the Federal court and this court adopted the samé rule as to what constitutes negligence, but each court’has held that verdicts of juries must have a more substantial basis than mere conjecture or speculation on which to rest. “It is a well-established doctrine, often recognized by this court, that juries will not be permitted to rest a verdict purely on speculation; that there must be testimony which warrants a finding of the essential facts or which would warrant a reasonable inference of the existence of those facts upon which liability is predicated before a verdict will be permitted to stand.” Texas Co. v. Jones, 174 Ark. 905, 298 S. W. 342 ; St. L. I. M. & S. R. Co. v. Belcher, 117 Ark. 638, 175 S. W. 418 ; St. L. I. M. & S. R. Co. v. Enlow, 115 Ark. 584, 171 S. W. 912 ; Midland Valley Ry. Co. v. Ennis, 109 Ark. 206, 159 S. W. 214. We also said in the Texas Co. v. Jones case, supra: “The mere fact that plaintiff was injured while working for the defendant and while in the exercise of due care himself is not sufficient to justify a verdict against the defendant. There must be some evidence of the negligence of the defendant and that that negligence caused the injury.” Under the decisions of this court and under the decision of the Federal court, it is necessary for the plaintiff to prove, not only that the defendant was guilty of negligence, but the evidence must also show that defendant’s negligence caused the injury. It is not necessary, however, that plaintiff show by direct evidence that defendant was negligent, nor is it necessary to show by direct evidence that defendant’s negligence caused the injury. It is necessary that the plaintiff prove both the propositions by substantial evidence. This is the rule both in this court and the Federal court.
The evidence is that Bishop, the swing brakeman, just before the train got into Seligman, left the caboose for the purpose of going to the head end of the train and assisting in switching some cars. This was his duty, and he, of course, went over the tops of the cars which were filled with chat and reached the far end of the fourth car from the caboose. There is some conflict in the testimony as to the manner in which he went over, but the undisputed proof shows that he was killed at the place where appellee’s witnesses testified there was a defective grab iron. Witnesses found blood on the wheel just behind the grab iron, found blood on the journals and bottom part of the car, and all this blood was on the same side of the car where the witnesses testified there was a defective or bent grab iron. Deceased’s body was found on the same side of the track where the blood was found, and where the bent grab iron was. Appellant’s witnesses testify about looking for deceased after it was discovered he was not on the train, and examining the car, and other of appellant’s witnesses testified as to inspecting the car, but none of them testify about the blood nor whether they looked for blood or not, except Erbright. He testified that he got under the car in the middle of the track and found three spots of blood on the bottom rod and on the side of the wheel. He does not say, however, which wheel nor where the rod was that had the blood on it, except he says he was in the middle of the track. The fact that Bishop was a careful man, strong and vigorous, and presumed to be in the exercise of care, went safely over the cars until he reached the place where the defective grab iron wgs said to be, and fell there on that side of the car, the fact that blood was found on the wheel and journal on that side, the fact that his body was found on that side and that there was no blood found on the other side, are sufficient to justify the jury in reaching the conclusion that the defective grab iron was the cause of his fall and injury.
“A well connected train of circumstances isras cogent of the existence of a fact as any array of direct evidence, and frequently outweighs opposing direct testimony.” 23 C. J., p. 48.
“There must be legal evidence of every material fact necessary to support the verdict or finding, and such verdict or finding must be founded on a reasonable cer tainty as to probabilities arising from a fair consideration of the evidence and not a mere guess, or on possibilities. Proof of a fact need not, however, be made by any particular kind or class of evidence, but the tryers of fact may seek the truth within the field of the evidence to the utmost boundaries of reason which rational men of common sense might set without passing beyond the line of the field of possibilities and the field of conjecture.” 23 C. J., pp. 52-53.
In cases of circumstantial evidence, the facts and circumstances proved must be such that it may be reasonably inferred from such facts and circumstances that the fact sought to be established exists.
This court has said: ‘ ‘ IIempfiing was an experienced brakeman, in good health, strong and active. As one of the witnesses expressed it, he was a good, steady man, industrious, and kept at his work. It is not at all probable that such a man, pursuing his work in the usual way, would have fallen between the cars and lost his life if there had been the usual and customary safeguards provided by the appellant, and which were necessary to be provided for the protection of brakemen while crossing from one car to the other.
“ While there was no eyewitness to the manner of Hempfling’s death, it is certain that he came to his death by falling between the cars, and it is reasonably certain that he would not have fallen if the customary hand-hold for his protection had been provided. * * # The jury were not invited to guess, without any proof, as to the probable cause of Hempfling’s death. The law is well settled that where there are no eyewitnesses to the injury, and the causeHhereof is not established by affirmative or direct proof, then all the facts established by the circumstances must be such as to justify an inference on the part of the jury that the negligent conditions alleged produced the injury complained of. Where such is the case, the jury are not left in the domain of speculation, but they have circumstances upon which, as reasonable minds, they may ground their conclusions. Negligence that is the proximate cause may be shown by circumstantial evidencé as well as direct proof. * * * It will be sufficient if the facts proved are of such a nature and are so connected and related to each other that the conclusion therefrom may be fairly inferred.” St. L. I. M. & S. R. Co. v. Hempfling, 107 Ark. 476, 156 S. W. 171.
The same rule was announced and approved in Midland Valley Rd. Co. v. Ennis, 109 Ark. 206, 159 S. W. 214.
This court, in discussing the scintilla rule, said:
“While this rule is not to be ignored, it is equally well settled that any issue of fact in controversy may be established by circumstantial evidence where the circumstances adduced in evidence are such that reasonable minds might draw different conclusions therefrom.” St. L. I. M. & S. R. Co. v. Fuqua, 114 Ark. 112, 169 S. W. 786 ; Paragould & M. R. Co. v. Smith, 93 Ark. 224, 124 S. W. 776 ; St. L. I. M. & S. R. Co. v. Owens, 103 Ark. 61, 145 S. W. 879.
The appellant insists that the court erred in giving the following instructions:
No. 1. “The court instructs the jury that in this case, if you find from a preponderance of the evidence that the deceased, B. Bishop, was injured, and as a result of said injuries thereafter died while in the employ of the defendant, St. Louis-San Francisco Railway Company, and while in the performance of his duty as a brakeman on one of its freight trains operating between Monett, Missouri, and Fort Smith, Arkansas, by falling from car No. 82302 near Seligman, Missouri, and that deceased was caused to fall by reason of a defective grab iron on said car, and that the condition of said grab iron was known to the defendant, or could have been known to the defendant, before the accident, by its making reasonable, careful inspection of the same before the injury, and that the condition of said grab iron was unknown to the deceased, B. Bishop, and that the said defendant, St. Louis-San Francisco Railway Company, thereby was guilty of carelessness and negligence that caused the injury to’ the deceased, and that the defective condition of said grab iron (if you find the same was defective) was the proximate cause of the injury, and that the deceased was, at the time, exercising due care for his own safety and had not assumed the risk, you will be authorized to find for the plaintiff, and assess such damages as will compensate the widow and minor child of the deceased for said injuries to the deceased that resulted in his death, as set forth in other instructions given you in this case. And, unless you so find and believe, you will find for the defendant.”
No. 2. “Negligence on'the part of either the railroad company or the deceased might be defined to be the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what reasonable and prudent persons under the existing circumstances would not have done. You fix the standard for reasonable, prudent and cautious men under the circumstances of the case as you find them according to your judgment and experience of what that class of men do under these circumstances, and then test the conduct involved and try it by that standard. ’ ’
No. 3. “-Contributory negligence consists in doing something' that an ordinarily prudent person would not dó under the circumstances, or the failure to do something that an ordinarily prudent person would do under the circumstances by the party injured that directly contributed to the injury and without which the injury would not have occurred. ’ ’
No. 6. “The burden of proof is upon the plaintiff to establish her case by a preponderance of the evidence, and the burden of proof is upon the defendant in this case to establish contributory negligence on the part of the deceased, B. Bishop, resulting in his injury, unless such negligence sufficiently appears from the proof introduced by the plaintiff. ”
No. 7. “If the jury find for the plaintiff, they will assess damages for the widow, Orel Bishop, and the minor son, B. Bishop, Jr., at snch sum of money as will fairly and reasonably compensate them for the loss of pecuniary benefits they might reasonably have received and of which they were deprived by the death of B. Bishop, as is shown from the evidence in the case, reducing said sum to its present cash value; also if you find for the plaintiff yon will be authorized to assess further damages for the widow, Orel Bishop, and the minor son, B. Bishop, Jr., at such a sum as will reasonably compensate for the physical pain and mental anguish suffered and endured by the deceased as a result of said accident, if any, from the time of the alleged injury until his death, as may be shown by a preponderance of the evidence in the case.”
No. 10. “Under the law of the State, it is provided that juries in civil cases may return a verdict when nine of the jury agree to that verdict, and in this case, if twelve of you agree upon a verdict, it is only necessary that the verdict be signed by one of you as foreman, but in the event the verdict is reached by nine of you, then it is necessary for each one of the jurors agreeing to that verdict to sign the verdict.”
The objection urged to instructions is that there is no evidence upon which to base the instructions, and that it permits the jury to speculate and conjecture. We have already said that the jury was authorized to find that Bishop was killed by falling from the train at the place where appellee’s witnesses testified there was a defective grab iron, and, if this is true, this disposes of appellant’s objection to instruction No. 1.
Appellant’s objections to instruction No. 2 and No. 3 and No. 6 are that No. 2 is not a proper definition of negligence under the Federal Employers ’ Liability Act, and that No. 3 and No. 6 improperly submitted to the jury the question of contributory negligence for the reason that the Federal Employers’ Liability Act does not make contributory negligence a defense. Of course, this being true, tbe submission of this question could not in any way prejudice the appellant. It simply tells the jury that appellant was entitled to a defense that it says it did not have. The specific objection to instruction No. 7 is that there is no evidence on which to base it, and that it permits the jury to speculate upon the cause of the accident and death. What we have said above disposes of this objection. Instruction No. 10 was a correct statement of the law, and appellant does not argue its objection. Appellant insists that the case should be reversed because witnesses were permitted to testify how far the grab iron was bent. The witnesses had not taken any measurements but testified that they saw the grab iron and as to how much they thought it was bent. Appellant says: “'Guesses by witnesses who neither made measurements nor touched the alleged defective grab iron were erroneously-permitted by the court to go to the jury.” This evidence was -competent. “Any person cognizant of the facts upon which he bases his judgment may give his opinion on questions of identification, size, weight, distance and time. Such questions are open to all men of ordinary information. The evidence is competent. Its weight is for the jury.” Railway Co. v. Thomason, 59 Ark. 140, 26 S. W. 598.
Finally, it is insisted that the ease should be reversed because the court erred in permitting certain questions in the cross-examination of witness Stanley. Attorney for appellee asked witness where he came from, and if he didn’t know he didn’t have to come, and a good many questions on this line, all of which were objected to by appellant. A witness on cross-examination may be asked any question which would tend to show his bias. This was evidently the purpose of the cross-examination of Stanley. The extent to which a cross-examination of this kind may be carried is largely within the discretion of the trial court. Unless it can be said that the trial court abused its discretion, this court will not reverse. We find no reversible error, and tbe judgment is therefore affirmed.
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John A. Fogleman, Justice.
Appellants Carter and Burkhead were found guilty of sodomy, alleged to have occurred shortly after 11:00 p.m. in Carter’s automobile which was parked at the public rest and tourist information facility adjacent to Interstate Highway 70, where other parties had parked trucks, automobiles and campers. Appellants admit the evidence is sufficient to sustain the jury verdict, if our sodomy statute is constitutional as applied to them. Thus, it will be unnecessary for us to set out the sordid testimony about the act, which appeared so revolting to one of the two deputies sheriff, who stated they observed it while patrolling the area, that he vomited thrice during the evening — the first time as an immediate reaction to his seeing what was taking place in the automobile, and the others while appellants were in custody and being “booked.” Although both appellants flatly denied that they had engaged in the homosexual act related by the police officers, they contend that even if they had done it, the state’s evidence only shows a consensual act in which two adult persons engaged. They were charged in the information on which they were tried with voluntary participation in an unnatural sex act in violation of Ark. Stat. Ann. § 41-813 (Repl. 1964).
The principal ground for reversal is that: the statute itself is an invasion of their right of privacy, which they allege to be protected by the First, Fourth, Fifth, Sixth, Ninth and Fourteenth Amendments to the United States Constitution; the statute is so vague and ambiguous as to deprive them of rights guaranteed by the state and federal constitutions; the application of the statute to them serves no legitimate state interest and that enforcement of the statute consdtutes cruel and unusual punishment. Appellants introduce their argument with a statement that they do not suggest the statute be declared unconstitutional in every application. They contend it is “only unconstitutionally overbroad as applied to consenting adults because all persons who engage in acts of sodomy are subject to prosecution under the terms of the statute, including husband and wife, consenting adults of the opposite sex, or consenting adults of the same sex, regardless of whether the act is committed in public or in private.”
The very strong presumption of constitutionality attendant upon every statute, requiring that all doubt be resolved in favor of constitutionality, is enhanced by the highly persuasive fact that the statute was long unassailed. See Stone v. State, 254 Ark. 566, 494 S.W. 2d 715; Williams v. State, 253 Ark. 973, 490 S.W. 2d 117; Poole v. State, 244 Ark. 1222, 428 S.W. 2d 628. As we said in Williams, if such a statute were in violation of federal constitutional principles, surely the thought would have long since occurred to the many legal scholars and jurists of this state. Appellants have not, by their multifaceted attack, met their very heavy burden of showing that this statute is unconstitutional.
We recently had occasion to consider and reject an attack on the constitutionality of this same statute in Connor v. State, 253 Ark. 854, 490 S.W. 2d 114. We do not agree with appellants that the difference in the two cases is sufficient to justify a re-examination of our holding there. We will turn our attention to arguments asserted as new and to alleged distinctions. Appellants allege a minor was involved and consent was not established in Connor. No point was made of the participation of the minor in reaching our conclusion in Connor. The mere fact that a participant is a minor does not prevent his consenting to the act. See Strum v. State, 168 Ark. 1012, 272 S.W. 359.
We can reject all cases cited by appellants relating to acts committed in private out of hand. No such act is involved here, in spite of a rather frail argument that the act, if committed, was done in the privacy of Carter’s automobile in a secluded area of a roadside park. In our opinion, the record simply does not support the idea that the act was committed in private, or in a rather remote area of the roadside park. Officer Phillips testified that the area was well lighted, and it was unnecessary for one to use a flashlight to observe people in the cars. The area is only 120 to 140 yards off the main interstate highway. It is approximately 40 to 60 yards wide. Burkhead described the area as quite crowded. He said there were a lot of people around and that some of the many cars parked in the area were near the Carter automobile. No greater degree of privacy than that shown in Connor can be said to have existed here.
We can just as readily dismiss those cases based on conduct between married persons and those rendered in jurisdictions where a “non-criminal physical relationship of homosexual nature” was involved. We do not find anything in citations to various “sex manuals” (even though they may have been best sellers) to be of such compelling force or effect that we may take judicial notice of the supposed data, arguments and recommendations of the authors, the expertise of some of whom is at least questionable. We likewise find nothing which persuades us that the Connor decision was wrong. If the legislative branch should, in the exercise of its investigative powers, find these works credible in considering statutory revision, we would acknowledge not only that the matter is, but that it should be, within its province. See People v. Hurd, 5 Cal. App. Bd 865, 85 Cal. Rptr. 718 (1970); People v. Ragsdale, 177 Cal. App. 2d 676, 2 Cal. Rptr. 640 (1960); People v. Massey, 137 Cal. App. 2d 623, 290 P. 2d 906 (1955).
In some mystical manner, appellants have woven together various unrelated decisions as support for their argument that the statute is an overbroad invasion of their right to privacy. These decisions all struck down some act as unconstitutional, and include those having to do with the education of children, compulsory sexual steriliza tion of habitual criminal offenders, interracial marriage and sexual relations, access to contraception information, private possession of obscene materials, and abortions. As we understand appellants’ argument, these cases lend support to their position because they demonstrate that the expansion of the “right to privacy in matters of intimate personal preference” is based upon the courts’ having taken cognizance of dramatic changes in social conditions which have made legal doctrines once appropriate become unsuited for contemporary society. If social changes have rendered our sodomy statutes unsuitable to the society in which we now live, we need not be concerned about the matter because there is a branch of our government within whose purview the making of appropriate adjustment and changes peculiarly lies. Since that branch has not acted, we adhere to the views expressed in Connor.
Appellants’ argument, that there is no legitimate state interest to be served by applying the sodomy statute to them, is hinged to a very great extent upon the contention that somehow the statute is constitutionally forbidden by that clause of the First Amendment to the Constitution of the United States prohibiting laws respecting establishment of religion. We rejected this argument in Connor and reject it here, and for the same reasons. The appellants additionally assert that the state must articulate the secular, social interests the statute under attack seeks to protect, suggesting that the failure to do so shows that the only purposes served do relate to establishment of religion. We do not think a recitation of purpose in the statute is necessary. Even if we should concede, and we do not, that the state had no interest in the suppression or minimization of sexual perversion, the condition existing at the time of this offense is illustrative of a valid state interest. Officer Phillips testified that the site is often frequented by children. The two male appellants, purportedly unacquainted, met there and in only a few minutes were in an automobile in the well lighted area enjoying fellatio. On cross-examination, Officer Phillips was asked to read his arrest report. It disclosed that this area, constructed for enjoyment and rest by travelers, had come to be frequented by homosexuals and that the sheriff’s office had received many complaints of such acts being observed and of visitors being approached by homosexuals. This is a clear and sufficient indication of the public interest to be served by the sodomy statute. People who come to such places for rest, recuperation and relaxation have a right to be unmolested, particularly by those in search of the exercise of their claimed right to sexual perversion, and should not expect to find in such havens as this the type of activities with which appellants were charged.
The police power is very broad and comprehensive and embraces maintenance of good order and quiet of the community, and preservation of the public morals. Williams v. State, 85 Ark. 464, 108 S.W. 838, 26 L.R.A. (n.s.) 482, 122 Am. St. Rep. 47, aff’d 217 U.S. 79, 30 S. Ct. 493, 54 L. Ed. 673, 18 Ann. Gas. 865; City of Helena v. Dwyer, 64 Ark, 424, 42 S.W. 1071. Under it, the legislature may, within constitutional limitations, prohibit all things hurtful to the comfort, safety and welfare of the people and prescribe regulations to promote the public health, morals and safety. Wright v. DeWitt School District, 238 Ark. 906, 385 S.W. 2d 644; Williams v. State, supra; Dabbs v. State, 39 Ark. 353, 43 Am. Rep. 275. In its exercise the legislature has a wide discretion in determining what the public interest demands and what measures are necessary to meet these requirements, and is limited only by the principle that its acts must reasonably tend to correct some evil and promote some interest of the commonwealth not violative of any direct, positive or necessarily implied constitutional mandate, or opposed to natural right and fundamental principles of civil liberty. Wright v. DeWitt School District, supra; Fiser v. Clayton, 221 Ark. 528, 254 S.W. 2d 315; Dabbs v. State, supra. See also, City of Helena v. Dwyer, supra. It is the duty of the courts to resolve all doubts in favor of the legislative action and to sustain it unless it appears to be clearly outside the scope of reasonable and legitímate regulation. Williams v. State, supra; Dabbs v. State, supra. In Williams, we found a legitimate state interest in prevention of annoyance to travelers by drummers soliciting for physicians, bath houses, hotels, etc.
In any event, we consider the sodomy statute to be a legitimate exercise of the police power by the General Assembly to promote the public health, safety, morals and welfare. See State v. Rhinehart, 70 Wash. 2d 649, 424 P. 2d 906 (1967); People v. Hurd, 5 Cal. App. 3d 865, 85 Cal. Rptr. 718 (1970).
Although appellants nowhere state, as a point for reversal, that our sodomy statute is void for vagueness, they somehow weave such an assertion into their argument that the statute serves no legitimate state interest. It is sufficient to say that whenever the definition of general words in a criminal statute, passed pursuant to the police power, may be adequately determined through reference to judicial decisions construing the statute, it is not void for vagueness. See State v. Anthony, 179 Ore. 282, 169 P. 2d 587 (1946). In Connor, we found the definitions in Strum v. State, 168 Ark. 1012, 272 S.W. 359; Mangrum v. State, 227 Ark. 381, 299 S.W. 2d 80; Havens v. State, 217 Ark. 153, 228 S.W. 2d 1003; and Smith v. State, 150 Ark. 265, 234 S.W. 32, adequate to meet this challenge, if the statute were otherwise subject to attack on this score. We again reject this argument.
Appellants also argue that since a maximum sentence of 21 years may be imposed upon consenting adults for sodomy, and the maximum punishment for a husband and wife engaging in normal sexual intercourse under the same circumstances would constitute nothing more than disorderly conduct, enforcement of the statute constitutes cruel and unusual punishment. Appellants call our attention to Ark. Stat. Ann. §§ 41-1432, 41-1401 and 41-2701 (Repl. 1964). Assuming, without deciding, that these statutes, and only these, would apply in the postulated case, the greatest possible punishment would be a fine of $300 and a jail sentence of one year. In order to sustain appellants’ argument here, whether it be based on cruel and unusual punishment or equal protection criteria, we would have to accept their arguments hereinabove rejected as a premise. This we cannot do. It is within the province of the legislative branch to classify crimes and determine the punishment therefor. Stout v. State, 249 Ark. 24, 458 S.W. 2d 42; Thom v. State, 248 Ark. 180, 450 S.W. 2d 550. No punishment authorized by statute, even though severe, is cruel and unusual unless barbarous or unknown to the law, or so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. Davis v. State, 246 Ark. 838, 440 S.W. 2d 244. We cannot say that either appellants’ eight-year sentence or the 21-year maximum fails to meet any of these tests for constitutionality.
It is a long-standing rule of this court, and generally of other courts, that in order for one to have standing to challenge the constitutionality of a legislative act, the act must be unconstitutional as applied to him. If appellants’ attack, as stated and restated by them, is hinged, in substantial part, upon the assertion that the statute draws no distinction between acts committed in public and acts committed in! private, the very absence of the element of privacy of the act should deprive appellants of any standing to question the constitutionality of the statute. Certainly they have no standing to challenge its constitutionality as applied to husband and wife or consenting adults of opposite sexes. See May v. State, 254 Ark. 194, 492 S.W. 2d 888; Connor v. State, supra; Lienhart v. Burton, 207 Ark. 536, 181 S.W. 2d 468; Connor v. Blackwood, 176 Ark. 139, 2 S.W. 2d 44; Ferguson v. Hudson, 143 Ark. 187, 220 S.W. 306. See also, City of Ft. Smith v. Scruggs, 70 Ark. 549, 69 S.W. 679, 58 L.R.A. 921, 91 A.S.R. 100.
We have held that a statute long in existence, under which many cases have been prosecuted and its validity inferentially sustained, should not be held invalid except for very cogent reasons and, then, only on the attack of one injuriously affected by it. Swaim v. State, 184 Ark. 1107, 44 S.W. 2d 1098. Here we do not find cogent reasons to invalidate this act, which has existed for over 100 years, except for a reduction of the minimum punishment in 1955, and under which many prosecutions have been sustained. We further find that appellants have not been injuriously affected by its application.
We note that there are other jurisdictions which have rejected similar assaults on the constitutionality of such acts. See, e.g., Everette v. State, 465 S.W. 2d 162 (Tex. Cr. App. 1971); Pruett v. State, 463 S.W. 2d 191 (Tex. Cr. App. 1970); State v. White, 217 A. 2d 212 (Me. 1966); State v. Rhinehart, 70 Wash. 2d 649, 424 P. 2d 906 (1967); People v. Hurd, 5 Cal App. 3d 865, 85 Cal. Rptr. 718 (1970); People v. Roberts, 256 Cal. App. 2d 488, 64 Cal. Rptr. 70 (1967); People v. Ragsdale, 177 Cal. App. 2d 676, 2 Cal. Rptr. 640 (1960); People v. Massey, 137 Cal. App. 2d 623, 290 P. 2d 906 (1955); Washington v. Rodriguez, 82 N.M. 428, 483 P. 2d 309 (Ct. App. 1971); Jaquith v. Commonwealth, 331 Mass. 439, 120 N.E. 2d 189 (1954).
We find no error in the trial court’s sustaining the prosecuting attorney’s objection and motion to strike testimony of the professed fiancee of Burkhead in response to the question “Have you ever known Tom Burk-head to have any tendencies toward being a homosexual?” We do not take this response to be a statement of the witness’ opinion of either the physical or mental condition of Burkhead, as argued by appellants. The inquiry is more nearly equated with one as to this appellant’s character. We have defined character to be “what a person is” and to include natural and acquired traits. Biddle v. Riley, 118 Ark. 206, 176 S.W. 134. Proof of character cannot be made except by showing general reputation and not by specific acts or conduct. In Henson v. State, 239 Ark. 727, 393 S.W. 2d 856, the defendant presented the testimony of three young women, each saying that she had been alone with the defendant and he had never attempted to make any advance to her. The state rebutted this testimony by testimony of two other women that defendant had raped them. This court reversed the conviction, saying that none of the women should have been allowed to testify, because their testimony constituted an effort to show the character of the defendant by specific acts and was, therefore, erroneously admitted. We said that the evidence offered by the defendant was clearly inadmissible. The analogy is certainly sufficient to justify the exclusion of this testimony in the case before us.
In addition, however, we find authorities in other states have treated the particular question directly. In Berger v. State, 179 Md. 410, 20 A. 2d 146 (1941), the refusal to permit the wife of a defendant charged with an unnatural and perverted attack on another woman to be asked if her husband had ever shown any sexual abnormalities was held proper. In State v. Sinnott, 24 N.J. 408, 132 A. 2d 298 (1957), a sodomy case, the court refused to allow psychiatric testimony that the defendant did not have sexual deviate traits. Both courts held that such inquiries went to the character of the defendant, which could be proved only by general reputation of the accused and not by evidence of particular acts or conduct or testimony of intimates. Attempted showing of good character of one charged with taking indecent liberties with females under the age of 15, by showing a lack of previous incidents, was also held improper in State v. Fairbanks, 25 Wash. 2d 686, 171 P. 2d 845 (1946). We find ample authority for the rejection of the testimony in the cases cited and find textual support in 22A C.J.S. 898, Criminal Law, § 691 (391,
Appellants also assert that reversible error was committed by the prosecuting attorney in cross-examining Carter, and that their morion for mistrial on that ground was erroneously denied. The questioned interrogatory was asked after Carter had declined to answer when asked if he was a homosexual unless the word be defined by the questioner. When this occurred the cross-examiner propounded and received a negative answer to the following question:
... Is it not a fact, and I want to remind you that you are under oath now; is it not a fact that in another matter in this very court room, on that stand, that you testified under oath that you were, and are, a homosexual?
At the outset we do not agree with appellants that this form of question constitutes a stronger assertion of fact than it would had it begun with the words “Did you know that . . .?” We do not consider the question as worded to constitute an assertion of fact at all, particularly since the matter was not pursued when a negative answer was given. Neither do we agree that there is any assertion that Carter was involved in another prosecution. “[AJnother matter in this very court, on that stand” could as easily be taken to refer to a civil case as to a criminal one, and if taken to be the latter, to the prosecution of someone other than Carter. .
In the light of Carter’s evasion of preceding questions, we find no error here. Carter was subject to the same latitude of cross-examination as any other witness. But appellants contend that Carter could be impeached only under Ark. Stat. Ann. §§ 28-707 and 708 (Repl. 1962). Appellants misapprehend the proper application of these statutes. They are only a limit on the introduction of evidence to impeach or contradict the witness, but not upon his cross-examination. See Wilson v. Thurston National Insurance Company, 251 Ark. 929, 475 S.W. 2d 881; Bockman v. Rorex, 212 Ark. 948, 208 S.W. 2d 991. These statutes probably would have come into play had the state attempted to contradict the negative answer given by Carter. See Holcomb v. State, 218 Ark. 608, 258 S.W. 2d 505; Bockman v. Rorex, supra.
Appellants argue that there was reversible error in that the trial judge, court reporter and counsel for both state and appellants went into the jury room for the purpose of answering an inquiry by jurors. We hasten to point out that this occurred before our decision in Martin v. State, 254 Ark. 1065, 497 S.W. 2d 268. The record discloses an identical procedure here and in Martin. We hold that the error was not reversible on the authority of Martin. We trust that the caveat there is adequate to point up the hazards involved in such a procedure, and are confident that resort will not be had to it in the future.
Since appellants have failed to demonstrate that there was any reversible error, the judgment is affirmed. | [
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McFaddin, J.
This is an appeal from a misdemeanor conviction. The appellant was convicted of violating § 3479 of Pope’s Digest, which is commoply known as the “Peace and Tranquility Statute.” The evidence is uncontradicted. The prosecuting witness was a young lady 18 years of age, and the appellant, a mature man, was the janitor at the factory where the prosecuting witness was employed. He approached her at her place of work, and, in the hearing of another female employee, made to the prosecuting witness a proposition in part as follows: “I would give you ten dollars to take you out ... I would take you out tonight and love you up, and I would give you ten dollars . . .”
The prosecuting witness had never noticed the appellant, and his proposition was a great surprise to her, and not only unwelcome hut also entirely unpreceded by any act or indiscretion on her part that would have provoked such effrontery on the part of the appellant. She testified that the words of appellant were insulting to her and made her extremely nervous. He followed up his advances by again approaching the prosecuting witness that night after she left her work, and while she was waiting for a bus.
Appellant urges three grounds for reversal:
I. That appellant’s motion for instructed verdict, of not guilty, should have been given.
II. That the verdict of the jury is' contrary to the law, the evidence, and the law and the evidence.
III. That the court erred in instructing the jury.
I and II. We consider these assignments together, for there could have been no error in refusing to direct a verdict of acquittal, unless the facts, as disclosed by the evidence, failed to show a violation of the statute. Roach v. State, 179 Ark. 1155, 19 S. W. 2d 1009; Wilson v. U. S., 77 Fed. 2d 236; West’s Arkansas Digest, “Criminal Law,” § 753. The trial court may direct a verdict only when the evidence raises no material question of fact for the jury’s determination. Paxton v. State, 114 Ark. 393, 170 S. W. 80, Ann. Cas. 1916A 1239.
We copy so much of § 3479 as shows the ingredients of the offense charged: “If any person shall make use of any . . . insulting language toward another person . . . which language, in its common acceptation is calculated to arouse to anger the person ... to whom it is spoken . . . or to cause a breach of the peace . . .”, such person shall be guilty of a breach of the peace.
The question, therefore, was, whether the remarks of appellant to the prosecuting witness were (1) insulting, and (2) calculated, in their common acceptation, to arouse to anger the addressed person.
Was the language insulting? Surely, no one is so simple-minded as to fail to understand what was necessarily implied by the words “taking out and loving up” and paying ten dollars therefor. The implication from the language could not be misconstrued by persons of the ages involved in this case. So the jury had a right to find from the evidence that the “proposition” contained in the language was unmistakably an indecent proposal, even though couched in what might be thought by the proposer to be- ambiguous language. See Wiley v. State, 10 Ala. App. 249, 65 So. 204. The jury could have reasonably found from the evidence that the language was insulting because it contained an indecent proposal.
Coming then to the question of whether the language, in its common acceptation, was calculated to arouse anger: in the case of State v. Moser, 33 Ark. 140, Chief Justice English, speaking for this court in a case involving the same statute as here involved, said:
“. . . and whether it (the language used) was calculated to arouse the anger of the person to whom it was addressed . . . would depend on the relations of the parties, the circumstances under which the language was used, the manner of the speaker, etc., which would be questions for a jury upon the trial.”
So, here, it was a question for the jury as to whether the language used was, in its common acceptation, calculated to arouse to anger the,person addressed. The jury saw the prosecuting witness and observed her demeanor: and manner of testifying; the jury saw the defendant and observed his demeanor; and was, from all these matters and from the evidence in the case, able to ascertain whether the words, in their common acceptation, were calculated to arouse to anger the person addressed, or to cause a breach of the peace. There was substantial evidence to support the verdict of guilty; and there is no merit in assignments I and II.
III. THE INSTRUCTIONS. After the court concluded giving the instructions to the jury, counsel for appellant objected “to each and every one of same on the ground that the statute involved in this case does not apply.” That was the only ground of objection. In the motion for new trial, the assignment about the instructions was only to the effect that the court erred in its instructions to the jury. The effect of the objection and. assignment was to present the question of whether the statute (§ 3479, Pope’s Digest) applied to this case; and we have held in I and II, supra, that the statute did apply: so there is no merit in the assignment. Furthermore, the objection was en masse, and we have examined the instructions and find they are not open to an objection en masse. Tugg v. State, 206 Ark. 161, 174 S. W. 2d 374; Darden v. State, 73 Ark. 315, 84 S. W. 507; Johnson v. State, 84 Ark. 95, 104 S. W. 929; Martin v. State, 85 Ark. 130, 107 S. W. 380; Brown v. State, 165 Ark. 613, 272 S. W. 989.
The judgment of the circuit court is in all things affirmed. | [
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Mehahft, J.
J. D. Lawson filed suit upon an account in the justice of the peace court in Fulton County against M. L. Short for $26.25. ■ Judgment was entered in favor, of the plaintiff, and defendant appealed to the circuit court. In the circuit court the defendant filed the following plea:
“Comes the defendant, M. L. Short, and moves the court to dismiss plaintiff’s cause of action, and for reason states: That there was pending before John P. Smith, Esquire, an action by the defendant, M'. L. Short, against the plaintiff, Jewell Lawson, on the.day of .192., in which the plaintiff in that action, M. L. Short, was seeking to recover from the plaintiff herein an amount which the said M. L. Short claimed was due him by the said Jewell Lawson; and that in said action the said Jewell Lawson presented the claim herein sued on, and the same was by the court disallowed, and the defendant in this action pleads res judicata to the cause of action sued on in this case, and therefore asks that this court dismiss the plaintiff’s cause of action in this case, and that he have judgment for cost, and all other relief. ’ ’
The following testimony was then introduced :•
John P. Smith testified that he is a justice of the peace and was at the time of the trial of the case of Short v. Lawson, referred to in the motion now before the court. Had been a justice of the peace for eight or ten years. That M. L. Short filed suit against Lawson, suing out an attachment claiming a landlord’s lien. The record shows that he sued on a note, and they paid it off after judgment. The witness here read the judgment, which showed the filing of the suit and the issuing summons, and the appearance of the parties and satisfaction of the judgment. Lawson appeared in court, and had an account of $26.25 that he wanted to file, and, when handed the paper in court; he said he thought that was the paper. Witness further testified that he did not allow him to file it. He waited until the case was called, and witness could not find any law to let him file it, and he just did not let him file it. ' He would not allow it, and defendant confessed the note and that he owed it, and witness wrote up the judgment for the amount of the note. He .never did file the paper. “He presented it to me and asked me to allow it, and after that he filed a suit on this claim against Mr. Short. The trial was on the 30th day of January, and on the 29th day he filed this suit before me for his cause of action for $'26.25. ” The suit was filed on the same day as the trial. Witness refused to let him file it in the suit brought by Short, and he filed the same paper that is in litigation now. Witness told Lawson that he could not find any law to allow it, and told him he thought he would just have to sue on it.
The defendants in the suit broug’ht by Short were J. D, Lawson, J. P. Lawson and W. P. Lawson, and were all served. Lawson filed a suit in witness’ court on the same day the other case was tried.
The court, after the above testimony, reserved its rulings after hearing the case, and then the following testimony was introduced:
J. D. Lawson testified, in substance, that he rented land from Short, and that he had an account against Short for $26.25. That he rented land from Short, but did not remember the exact date. Witness told Short he would rent the land if he would clear it' up or pay witness to clear it up, and he rented it, and Short started in to clearing it up, but did not do much, and witness cleared it up himself. The amount-charged for the work was reasonable.- Witness paid the rent, or left it in the field for. Short. • The amount defendant now owes witness is '$26.25.
There was other testimony introduced by the plaintiff, but it is unnecessary to set it out, because the only question here is whether appellee had a right to maintain this suit, not having filed it as a set-off or counterclaim to the suit brought by Short..
Short himself testified that he never promised to pay Lawson anything. That Lawson was to clean up the land and Short was to let his boy burn it off. That Short was not to pay him anything for cleaning up the land. Witness stated that this land had been lying out five and six or seven and eight years.
Joe Short, the son of M. L. Short, also testified, corroborating the statements of his father, and there were some other witnesses testifying with reference to the work claimed to have been done by Lawson.
We deem it unnecessary to set out any more testimony, because, as we have said, the only question in the case, as argued by appellant, is whether oFnot Lawson can maintain this suit when there was a suit pending before the justice of the peace court by Short against Lawson. It is true that a defendant should interpose all the defenses, legal or equitable, which he has. And this is not only true under the statute but it should be done anyhow, so that all controversies between the parties that could be settled in one suit might be so settled. But in this case the suit was pending before a justice of the peace, and his idea of the law was that Lawson could not file this claim in that suit and prohibited him from filing it as a defense. Lawson did everything he could do. He offered to file the account. Was claiming that Short owed him this amount, and actually brought suit on the same day, upon the advice of the justice of the peace that he would have to bring an independent suit.
Under the circumstances it would be unjust to hold that he was barred, and the law certainly does not require any holding in this case that would deprive the appellee of Ms right to have this claim passed on, when he did all that conld be done at the time to interpose it as a defense or counterclaim in the same suit, but was not permitted by the justice of the peace to do it, but, on the contrary, was advised that he would have to bring a separate suit. It is certainly not the intention of the statute or any other law to deprive one of his rights under thé circumstances existing in this case. The case was submitted to a jury under proper instructions, and the jury returned a verdict for the plaintiff, and the judgment of the circuit court will therefore be affirmed. | [
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Holt, J.
Appellee sued appellant for damages resulting from an injury to a Neon sign owned by appellee and extending from the front of his property. Appellee alleged that on April 30, 3943, appellant’s truck, while being driven by an employee engaged in appellant’s business at the time, negligently ran into a Neon sign belonging to appellee, doing damage in the amount of $300. Appellant answered with a general denial of liability and further defended on the ground that appellee was guilty of “contributory negligence in hanging the sign over the public highway, and that portion of the street paved and used as a public highway, contrary to law, etc.” By agreement, the cause was submitted to the trial court sitting as a jury, and there was a finding in favor of appellee in the amount of $136. From the judgment comes this appeal.
For reversal, appellant contends first, that the evidence is insufficient to support the verdict and specifically appellant argues that its truck driver, Holland McLean, was not driving the truck at the time appellee’s sign was damaged; that McLean was not engaged in any business for appellant at that time, and that, in fact, Helen McLean, the wife of Holland McLean, was driving the truck in question at the time of the injury to the sign.
The facts are that Holland McLean, at the time of the injury to appellee’s sign, was in appellant’s employ as truck driver. Appellant maintained a warehouse in Hot Springs and another in Glenwood, where it kept feed and groceries. McLean lived out on highway No. 70, across the river, and hauléd feed and groceries for appellant between Hot Springs and Glenwood. For appellant’s interest, and the convenience of the truck driver and appellant, appellant permitted McLean to take the truck home with him at night, and says appellant, C. J. Horner, “Yes, it is customary where you have a run like that, for 1he driver to keep the truck in the vicinity rvhere he lives and travel in it. Keeping the truck out there at Mr. McLean’s house was for your convenience, too, to save time, wasn’t it'? Oh yes, it was a matter of convenience.” On the afternoon when the damage to the sign occurred, the truck driver, McLean, started home with the truck along state concrete highway No. 70 at about 3 o’clock, after having sparkplugs installed, in the motor, at a repair shop.
Velma Oonine, an eyewitness, testified that the truck hit appellee’s sign between 3:30 and 4 o’clock, that the truck belonged to appellant, and that a man was driving the truck at the time. Against this testimony, appellant’s witness, Helen McLean, testified that she, dressed in overalls and wearing a driver’s cap, was driving the truck between 2 and 3 o’clock of that same afternoon, that she drove by appellee’s sign and that she does not know whether she hit it or not. The truck driver, McLean, denied hitting the sign.
The law applicable to facts such as we have here is well settled. We held in Carter Truck Line v. Gibson, 195 Ark. 994, 315 S. W. 2d 270, (Headnote 3), “The test of the master’s liability for the negligence of his servant is not whether the act complained of was committed while the servant was in his employ, but whether it pertains to something incident to the employment and which it was the servant’s duty to perform, or was for the master’s benefit. ’ ’ See, also, Lindley v. McKay, 201 Ark. 675, 146 S. W. 2d 545.
In Helena Wholesale Grocery Company v. Bell, 195 Ark. 435, 112 S. W. 2d 416, (Headnote 1), it was held: “Where appellant employed a person to drive his truck in delivering groceries some 40 miles from the store, and the driver who lived some miles from the store was permitted to go home at night in the truck and return the next morning to his work in the truck, he was on business for appellant when, on returning to Ms home in the evening, he negligently ran into the wagon of appellee injuring him, since it was for the benefit of appellant that the driver go to his home in the evening and return to work the next morning in the truck, ’ ’ and in the opinion, it is said: “"We think the jury were warranted, and reasonably so, in drawing the inference from the evidence that appellant’s permission to take the truck to the driver’s home every night was for the convenience-and benefit of said appellant, and that on account of this convenience and benefit the driver was engaged in the prosecution of the business of appellant while driving said truck to his home. ’ ’
Guided by these rules of law, we think there was substantial evidence here upon which the trial court based its decision, and we do not disturb that finding.
Appellant also contends that there can be no recovery because, as he says, “the sign in front of appellee’s place of business was a sign suspended over a public highway. It was, therefore, incumbent upon the owner of said sign to place same at a sufficient height that it would not be damaged by the use of this paved area by the general public, by the use of standard vehicles thereon,'” and that appellee failed to comply with the provisions of § 6802 (a) of Pope’s Digest, which required the sign to be not less than 12 feet, 6 inches above the highway unless a notice was posted indicating a lesser height and therefore that appellee could not recover under § 6809 which provides-, “(b) Any person driving any vehicle, object or contrivance upon any highway shall be liable for all damages to structures spanning the highway or a part of the highway by reason of load heights in excess of that which such structure will permit, when the clearance height of such structure is posted, and in any event where the height of the vehicle and load is in excess of 12 feet, 6 inches. . .• (d) Such damage may be recovered in a civil action brought by the authorities in control of such highway or highway structure.” We think, however, that these sections of the highway statute have no application here, for the reason that the sign in question was the personal property of appellee, erected in front of his building, 15 feet from the edge of highway No. 70. The purpose of the above sections of the highway statute is to give to the state “authorities in control of such highway or highway structure” a right to recover damages in a civil action against any person who, while driving any vehicle upon any highway, damages “structures spanning the highway or a part of the highway by reason.of load heights, etc.” As indicated, the sign involved here was the property of appellee and was 15 feet away from the highway’s edge, and the statute does not apply.
Finding no error, the judgment is affirmed. | [
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McHaney, J.
On September 18,1942, appellant filed suit for divorce against appellee under our so-called 90 days divorce law, § 4386 of Pope’s Digest, on the ground of general indignities. Appellee, a resident of Oregon, was notified of the pendency of the action by an attorney ad litem who was appointed on the same day, by a letter dated September 26,1942, which she acknowledged under date of October 2, 1942, stating she desired to defend the action, but did not authorize said attorney to make any defense for her. On October 13, said attorney wrote appellee again, in which he stated that the next term of court would be October 19’, and that if she desired him to handle the matter, to have her attorney in Oregon communicate with him. No answer was received to this letter and on October 19, a decree of divorce was granted appellant without any contest by appellee, the attorney ad litem having filed report as above.
The first action taken by appellee was on March 15, 1943, when, by her present counsel, she filed a motion to set aside the decree of divorce of October 19, 1942. The grounds alleged in the motion were, first, that it was obtained by fraudulent misrepresentations to the court; 2nd, that the proof was insufficient to support the decree; 3rd, thát there was “no proof that the plaintiff was a resident of the State of Arkansas for three months next preceding the trial of the cause, and that in truth and in fact the plaintiff was a resident of Memphis, Tennessee, during the time he was supposed to be living in this state and county”; and, 4th, that the depositions of appellant and his witnesses contain flagrant misstatements, which can be proved.
Appellant responded to this motion with a general denial of the allegations thereof. On September 15,1943, the court made and entered an order against appellant for temporary alimony and attorneys fees, and on October 18,1943, he was cited for contempt for failure to pay the sums ordered to be paid on September 15, and a warrant was issued for his arrest, but he was never apprehended. On January 7, 1944, appellee’s motion to set aside the divorce decree was granted and the decree was set aside. ■ Thereafter, the date not being shown, appellant’s counsel filed a motion to set aside the order of January 7, 1944, on the ground that on that date and prior thereto, appellant was a member of the armed forces of the United States, to-wit, the Marines, was out of the jurisdiction of the court and was entitled to have the cause continued pending the termination of his military service under § 521 of the Soldiers’ and Sailors’ Civil Eelief Act of 1940 (50 U.S.C.A. App., § 201). No action appears to have been taken on that motion, but on April 28, 1944, on the motion of appellee, the court dismissed with prejudice appellant’s complaint for divorce, but made a finding that appellant was inducted into the U. S. Marine Corps on November 4, 1943. This appeal followed.
We think the court fell into error in its order of January 7, 1944, setting aside the decree of divorce of October 19, 1942. In that order the court said: “After an examination of the proof in the premises and other matters before the court, it appears that there is no evidence that the plaintiff was a bona fide resident of the State of Arkansas for three months prior to the trial of said cause, as required by law,” and this is the reason the court assigned for setting aside the original divorce decree.
Section 8246 of Pope’s Digest, subsection Fourth, provides that the court in which a judgment or final order has been rendered shall have power, after the expiration of the term, to vacate snch judgment or order, “For fraud practiced by the successful party in the obtaining of the judgment or order.” It has many times been held that, after the expiration of the term, the judgment can be set aside only in the way and for the reasons specified in this section or by bill of review in equity; and § 8248 provides that the proceeding to vacate or modify the judgment or order on the grounds mentioned in Subdivisions 4-8 shall be by verified complaint, etc., stating the defense to the action, if the party applying is defendant. No complaint was filed, only a motion and it not verified, but if we treat that requirement as being waived and treat the motion as a complaint, it alleges only the ground that fraud was practiced on the court in that appellant was not a resident of the state for three months, which would come under subsection 4 of § 8246. Murphy v. Murphy, 200 Ark. 458, 140 S. W. 2d 416. It was there held that Murphy not being a resident of the. state when he obtained the divorce, this representation that he was a resident constituted a fraud upon the court. And under the authority of Corney v. Corney, 79 Ark. 289, 95 S. W. 135, 116 Am. St. Rep. 80, it was held that where the decree was obtained by a fraud on the court’s jurisdiction, an action would lie to vacate the decree after the term, whether there was a valid defense to the original action or not.
The trouble with appellee’s action here to vacate the decree on the ground of fraud on the court’s jurisdiction is that there is no proof in this record that appellant was not a resident of the state and county for the required time. No witness, not even appellee who was the only witness on the merits of the motion, testified that appellant’s residence here was fictitious and not actual. No one testified that he was a resident of Memphis. We-think the proof of residence offered on the original hearing for divorce was rather “sketchy,” but was sufficient to sustain the decree of the court until overcome by other and independent proof that his residence was elsewhere.
Moreover, appellee was negligent in not defending the original action. She had ample notice of the pend-ency of the action and when it would be heard. She made no defense and took no appeal, although promptly advised that the decree had been granted on October 19, 1942. She waited until March 15,1943, to take any action whatever. In Gaines v. Gaines, 187 Ark. 935, 63 S. W. 2d 333, we held, to quote a headnote, that: “A nonresident defendant, who received notice seven days before entry of a decree of divorce but took no action thereon, could not have the decree set aside for fraud.”
For these reasons the court erred in setting aside the decree of divorce and in dismissing the complaint. Since appellant is a member of the armed forces of the United States and was at the time this procedure was had against him, we think the cause should be reversed and remanded and a decree entered in accordance with this opinion; that the case be held on the docket with a decree of divorce in appellant’s fav.or, but with a motion or complaint pending to set it aside for fraud practiced on the court, if appellee elects to pursue it further, and with the right of appellee to have appropriate orders against appellant for the support of his children by her.
It is so ordered. | [
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Robins, J.
Appellant, J. W. A. Norden, seeks to reverse a decree rendered by the lower court against him and others. By this decree appellees were given a personal judgment against appellant for amount found due on two promissory notes and foreclosure of a real estate mortgage securing the debt was ordered.
Appellees, W. J. DeVore, N. J. DeVore and Benjamin DeVore, are the only children of, and appellee, Mrs. Sarah E. DeVore, is the widow of J. I. DeVore, who died intestate on November 17, 1928. One of the notes sued on herein was for $3,000, executed on April 16, 1921, by J-. H. Natho, J. W. A. Norden and A. Gr. Richter, payable to J. I. DeVore, bearing interest at the rate of ten per cent, per annum. After crediting many payments, appellees alleged that there was due on this note $5,026.95. A real estate mortgage, conveying eight lots in G-illett, Arkansas, to secure this note, was executed on the same day by the makers of this note to J. I. DeVore. The other note sued on was for $500, dated March 10, 1931, due one year after date, payable to Sarah E. DeVore or W. J. DeVore, and signed “Rook & Company by J. II. Natho by J. W. A. Norden;”
To the complaint of appellees asking judgment for the amount of these notes and foreclosure of the mortgage, appellant filed a separate answer, in which he set up a general denial of the allegations of the complaint, and an allegation that numerous payments not credited had been made and that there had been an agreement with J. I. DeVore by which this note was” settled by the makers thereof obtaining a release for DeVore of certain liabilities growing out of a bank failure; and appellant also pleaded the statute of limitation.
An answer was filed by other defendants, but, since these defendants have not appealed, the defenses asserted by them are not material in a consideration of this appeal.
When the case came on for trial appellant asked permission to withdraw his answer and filed a demurrer, principal ground of which was that the complaint did not contain allegations sufficient to show capacity of appellees to bring the suit. Prior to the trial the depositions of three witnesses in the cause were taken and filed. The lower court found that, after allowing all credits, there was a balance of $7,032.79 due to appellees on the debts sued on, rendered judgment against appellant for that amount and ordered foreclosure of the mortgage.
Appellees have moved for an affirmance of the decree appealed from on the ground that appellant has failed to make an abstract of the testimony as required by Rule IX of this court. Appellant concedes that he has. made no such abstract, but argues that it was unnecessary to do so because the lower court decided the case on the complaint and the demurrer without considering the testimony.
We are unable to determine from an examination of the decree whether the chancellor did or did not take into consideration the testimony. But regardless of the procedure in the lower court, an abstract of the testimony should have been made by appellant. On an appeal from a decree of the chancery court we try the case de novo, and, while the lower court, where there is a demurrer to the complaint as well as testimony, might deem it unnecessary to examine the testimony, it is necessary and proper for us to consider the testimony so as to enable us to determine whether the complaint, if defective, was aided by the proof.
Appellant’s principal contention in this court is that the complaint failed to set forth facts necessary under the statute to show that the widow and heirs of J. I. DeVore, deceased, rather than an administrator of his estate, were authorized to institute and maintain this action. Counsel for appellees insist that, even if these facts were not properly alleged in the complaint, there was testimony in the record to establish them. If this is true, we would of course be compelled to hold that, regardless of whether the lower court considered this testimony, any such defect in the complaint was cured thereby.
Chief Justice Hill, speaking for the court, in the case of Greenlee v. Rowland, 85 Ark. 101, 107 S. W. 193, said: ‘ ‘ Ordinarily it is the duty of this court to determine the whole case, irrespective of how the chancellor reached his conclusion. Although the chancellor may have erred in his ruling upon the demurrer, yet, if the facts show that the same decision should he reached upon the merits, then it is the duty of this court to affirm it. If, on the other hand, his ruling is right upon the demurrer, but wrong on the whole case as developed before him, and before this court, then it is the duty of this court to reverse. ’ ’
In order to determine properly the issues raised herein, it would be necessary for us to explore the transcript and review the testimony, so as to ascertain whether the evidence was sufficient to support the decree rendered by the lower court. The- impossibility of each member of the court making an examination of the entire record in every case necessitated the promulgation of Rule IX, which requires the appellant to make and print a fair abstract of the testimony. We have frequently held that compliance by the appellant with this rule is necessary to a prosecution of an appeal. Merritt v. Wallace, 76 Ark. 217, 88 S. W. 876; Eddy Hotel Company v. Ford, 90 Ark. 393, 119 S. W. 270; Rural Single School Districts v. Lake City Special School District, 144 Ark. 362, 223 S. W. 381.
Since appellant has failed to make abstract of the testimony, as required by Rule IX, the motion of appellees must be granted and the decree of the lower court affirmed. | [
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McFaddin, J.
Appellant was convicted of cattle stealing in violation of the provisions of § 3129' of Pope’s Digest; and lias brought'this appeal.
Four informations were filed against appellant in the trial court, and we refer to these informations by the respective number used in the trial court:
No. 1491 was for stealing a steer, the property of Guy Harris.
No. 1492 was for stealing a heifer: i£The property of J >
No. 1493 was for stealing a steer, the property of J. Y. Standridge.
No. 1494 was for stealing a heifer; the property of J. D. Nichols.
Information No. 1492 was quashed by the court. By consent, the defendant was tried on the other three informations in one hearing, but with a separate verdict and judgment on each information. He was acquitted by the jury on information No. 1494 (the J. D. Nichols heifer). He was convicted by the jury on information No. 1491 (the Guy Harris steer), and also on information No. 1493 (the J. V. Standridge steer); and was sentenced to one year in the penitentiary on each of-the convictions (Nos. 1491 and 1493), with said sentences to run consecutively.
From the order overruling the motion for new trial the defendant prosecutes this, appeal; and assigns eight errors in the said motion. We discuss these assignments m the same order listed in the motion for new trial:
Assignments One, Tivo, and Three. These assignments claim the verdict in each case to be contrary to (1) the law, (2) the evidence, and (3) the law and the evidence. These assignments are without merit. Twenty-eight witnesses testified and the transcript consists of one hundred fifty-nine pages. We find the evidence overwhelmingly sufficient to sustain the verdicts.
As regards the Guy Harris steer: Harris’ marks were registered. The markings on the steer were shown. The jury viewed the steer. Harris testified to its loss and the circumstances of its recovery. One witness saw the defendant load the steer in a truck and drive away. Another witness bought the steer from the defendant at an auction sale and paid him for the steer. The defendant assumed the name of Johnson, but this disguise was penetrated by the .purchaser of the steer who made investigation after he delivered the steer to its true owner. There was also other evidence in the record concerning the theft of this steer.
As regards the Standridge steer: The evidence was equally conclusive. Standridge testified as to its loss and its subsequent recovery from a man named Furlowe who bought it from Easley. Easley testified that he bought the steer at.ithe Huntsville auction sale and sold it to Furlowe. The defendant had again assumed the name of Johnson, and had sold the steer under that name at an auction at Huntsville on September 30, 1943, and had received a check payable to J. W. Johnson. The original check, introduced in evidence, bore two indorsements: one purporting to be the indorsement of J. W. Johnson and the other purporting to be the indorsement of the defendant. Johnson denied the indorsement attributed to him and was supported by witnesses. Witnesses testified as to the genuineness of defendant’s indorsement and the fact that the defendant received the money on the check when presented at the bank. The Standridge steer had a peculiar “doulap” marking in one ear and witnesses abundantly identified the steer.
So we find no merit in the first three assignments.
Assignment No. Four. In this the appellant claims as error the giving-of the court’s instruction No. 3 relating to the possession of property recently stolen. This instruction was substantially the same as that approved by this court in McDonald v. State, 165 Ark. 411, 264 S. W. 961, and in Bridges v. State, 177 Ark. 1193, 9 S. W. 2d 240. There was no error in giving this instruction.
Assignment No. Five. In this the appellant claims as error the giving of the court’s instruction No. 4 relating to the defense of an alibi. This instruction was substantially the same as that approved by the court in Ware v. State, 59 Ark. 379, 27 S. W. 485; Rayburn v. State, 69 Ark. 177, 63 S. W. 356, and Kidwell v. State, 184 Ark. 236, 42 S. W. 2d 13. There was no error in giving this instruction.
Assignment No. Six. This reads: “That the court erred in refusing to give instructions numbered five, six and seven requested by the defendant.” The instruction No. 5 related to the identity of the J. D. Nichols’ heifer involved in information No. 1494., Since the defendant was acquitted on this information there could be no prejudicial error in refusing this instruction even if it had been eorrectly worded.
The requested instruction No. 6 reads: “You are instructed that in indictment No............the State has failed to establish ownership and the defendant should be acquitted on that count. ’ ’
Since there were three informations involved in the case, and since no number was contained in the requested instruction, there was no error in refusing the requested instruction. Furthermore, there was sufficient evidence of ownership of each of the animals involved in each of the three informations, to have justified the refusal of this instruction, regardless of which information might have been intended.
The record before us fails to contain any instruction No. 7 requested by the defendant. In the absence of any instruction No. 7 there could be no error in refusing it. Sutton v. State, 163 Ark. 468, 260 S. W. 403.
This assignment No. 6 was an assignment en masse. Tiner v. State, 109 Ark. 138, 158 S. W. 1087. But there was no merit to this assignment, even if the refused instructions should be considered separately.
Assignment No. Seven. This reads: “That the court erred in permitting a check in the amount of $100 made payable to one J. W. Johnson and drawn on the Huntsville Livestock Co. to be introduced in evidence over the objections and exceptions of .the defendant.” This check related to the Standridge- steer which was concerned in information No. 1493. The steer was sold at the Huntsville sale on September 30,1943. The payee named in the check was J. W. Johnson who testified that he was not in Huntsville and did not indorse the check. But after the J. W. Johnson indorsement there was the indorsement of the defendant’s name. Witnesses testified that the indorsement of Johnson was not made by Johnson; but that the indorsement by the defendant was made by the defendant; and the banker testified that the defendant received the money on the check when it was presented at the bank. A general objection to evidence is unavailing if the evidence is admissible for any purpose. Bodcaw Lumber Company v. Ford, 82 Ark. 555, 102 S. W. 896. We think the check was admissible oh the issue of the sale of the steer by the defendant, and also on the issue of the defendant’s identity in receiving the money on the check. Since the check was certainly admissible for these two purposes indicated, and since the defendant offered only a general objection to the admission of the check, we find no error committed by the trial court in admitting the check.
Assignment No. Eight. This assignment relates to alleged improper argument of the prosecuting attorney in his closing address to the jury; but this assignment is without any record evidence to support it. Neither the alleged remarks nor any ruling of the court concerning the same appear in the record of this case; and what Chief Justice McCulloch said in Harrelson v. Eureka Springs Electric Company, 121 Ark. 269, 181 S. W. 922, applies to the situation in the case at bar: “The record does not show that any such argument was made or that any exceptions were saved. The only place in which this appeal's is in the motion for new trial, and that is not the place to set out the matter constituting an alleged error. The motion for new trial constitutes an assignment of error, but not the matter upon which the assign ment is based. Tlie bill of exceptions must contain a history of the trial, including matters which are assigned as' error. Merely reciting the matter in the motion for new trial is not sufficient.”
An alleged improper argument will not be reviewed by this court unless the record shows a proper exception thereto duly preserved. Fogel v. Butter, 96 Ark. 87, 131 S. W. 211; Shearer v. Farmers’ & Merchants’ Bank, 121 Ark. 599, 182 S. W. 262.
The judgments of the circuit court, here appealed from, are in all things affirmed. | [
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Holt, J.
Appellee, Dr. J. D. Eddy, on behalf of himself and all other taxpayers and property owners similarly situated in Conway county, brought this suit to cancel and set aside a deed to 147.20 acres of land within the district executed by the secretary and president of the Bridge District on December 2, 1941, to appellant, Manie Schuman, for a consideration of $9.75.
Appellee alleged that title to the land in question was acquired by the Bridge District December 13, 1940, by foreclosure proceedings for the tax due on the unpaid betterment assessments for the year 1936; that the secretary and president of the Bridge District, without authority from the Board of Commissioners of the District, and for a grossly inadequate 'price, executed the deed, sitpra, to appellant, Schuman, and prayed for a cancellation of the deed. Appellant answered with a general denial. Upon a trial, the court canceled appellant’s deed as prayed by appellee, and from the decree comes this appeal.
This is the second appeal in this case. The cause reached this court on the former appeal (Eddy v. Schuman, 206 Ark. 849, 177 S. W. 2d 918) from a decree sustaining Mr. Schuman’s demurrer to Dr. Eddy’s complaint. On the former appeal, the demurrer alleged that the complaint did not state a cause of action. We held that a cause of action was stated and reversed the decree.
On remand, the canse was submitted on the same complaint and amendments of appellee as appeared on the former appeal, the answer of appellant, supra, and testimony.
The essential facts are: Appellee, Eddy, is a property owner within the Bridge District in question. The Bridge District by appropriate foreclosure proceedings obtained title to the 147.20 acres of land in question December 13,1940, for assessments due in 1936. The secretary and president of the Bridge District executed and attempted to convey by quitclaim deed the land to appellant for a consideration of $9.75. The land, at the time it was sold to appellant, was worth approximately $1,000. June 12,1935, the Board of Commissioners of the Bridge District in question adopted the following resolution: “Whereas, foreclosure has been had on certain lands of the district for the delinquent taxes, and sale has been made and the district has purchased certain of the delinquent lands, and
“Whereas, from time to time it will he necessary for the district to execute deeds to the lands to purchasers from the district by the owners or others to clear the title, and
“Whereas, certain lands of the county are in the U. S. Government Reserve, and parties owning lands in this reserve, will from time to time want to deed same to the U. S. Government, and in order to make such conveyances, not only all former taxes, hut also all future taxes must be paid to effect such transfer, and other parties will no doubt desire to pay all their future taxes and get a release from the district in order to perfect their titles. Therefore BE IT RESOLVED, by the board of commissioners of the Conway County Bridge District that the president and secretary of said board, be and they are hereby authorized to execute such deeds to any of the lands so purchased by the district to any person who may desire to pay all taxes due up to the time of purchase. And
“BE IT FURTHER RESOLVED, That on payment of all past and also all estimated future taxes, that the said secretary and chairman are authorized to execute deeds to any interested party upon payment of said past and future taxes and grant a release from further liens or taxes. Passed and approved by the Board of Commissioners of Conway County Bridge District, on the day and date first above written. E. E. Mitchell, Chairman, L. T. Oates, Secretary.”
Whatever authority the president and secretary of the Bridge District had to execute the deed to appellant in question must be gathered from the above resolution of the Board of Commissioners of the District.
We think it was the clear intent and purpose of the commission in adopting this resolution, and its effect, to grant to all property owners within the district, or to all persons having any interest in the title to such property, the right to redeem “upon payment of said past and future taxes,” and that this right was not extended by the resolution to such a party as appellant, Schuman, in the instant .case. We fail to find in this record any authority granted by the Bridge Commissioners to its president and secretary to convey the land in question to appellant for the taxes only. While the Commissioners had the authority to empower its president and secretary to convey property within the district, title to which was held by the district, to a third or disinterested party, such as appellant here, the resolution authorized that conveyance for the nominal consideration of the taxes only, to persons having an interest in the land for the purpose of clearing the title thereto, it was not intended to authorize a conveyance for this nominal consideration to a person having no interest in the land at the time of the purchase.
Finding no error, the decree is affirmed. | [
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Smiti-i, J.
Martha Pnrsley, the widow, and Reba Pursley Howe and Mae Pnrsley Parker, the children of Oscar J. Pursley who departed this life intestate on or about December 17, 1935, filed this suit for the purpose of cancelling a certain deed, dated September 20, 1927, purporting to have been executed by Martha and O. J., her husband, to H. E.- Pursley, a brother of Oscar. This relief was prayed upon the allegation that the deed was a forgery. R. W. Milum and wife, and Ernest Huff and wife, who claim title under a deed from H. E. Pursley and wife to Milum and deed from Milum to Huff, were made parties defendant. Depositions were taken, but, for some reason not explained, there was no appearance at the taking of the depositions by any of the defendants, who had filed answer denying the allegations of the complaint.
After much testimony had been taken, an amendment to the complaint, was filed, in which Martha alleged that she had furnished the purchase' money, amounting to $1,200, to her husband and his brother, with which the land had been bought on November 6, 1920, and she prayed judgment against her husband’s brother for one-lialf thereof, or $600, with interest. An answer was filed denying this allegation, and thereafter, without further pleadings having been filed, additional testimony was taken which enlarged the issues and, in effect, sought an accounting of the relations of these brothers as partners.
The principal question in the case, and the only question raised in the original pleadings, is whether the deed above referred to is a forgery, and if it be found, as was found by the court below, that it was not a forgery, but was a genuine deed, the decision of other questions raised by the conflicting testimony will be simplified. The court below dismissed the entire case as being without equity, and this action was warranted and required if the testimony of the plaintiffs and that offered in their behalf was found not to be true.
The deed in question was a warranty deed, with relinquishment of dower, and recites that O. J. Pursley had, for the consideration of $1,200 cash in hand paid, conveyed his undivided one-half interest in the 80-acre tract of land in Marion county to H. E. Pursley. ■ The deed bears date of September 20, 1927, and contains a proper form of acknowledgment by O. J. Pursley and Martha _ Pursley, his wife, taken by E. Gr. Whitaker, a notary public, on the same date. The deed was not filed for record until the 15th day of May, 1937, which was subsequent to the death of O. J., and this fact is strongly urged as a circumstance supporting the contention that the deed was not a genuine instrument.
Martha denied categorically that she or her husband had signed or acknowledged the deed, and she offered testimony to the apparent effect that subsequent to the date of the deed H. E. Pursley had recognized his brother as a half owner of the land.
The notary testified he was about 74 years of age, and had been a notary public for 40 years, - and that, “except for rheumatism, my health is very good. I can’t get around much.” He knew O. J. Pursley and Martha, his wife, but did not know H. E., and he had no recollection whatever of having ever taken the acknowledgment of O. J. and Martha to the deed which was exhibited. He testified that he looked over some of his old signatures, and none are just alike. “I couldn’t say. There is a similarity. Some of the individual letters seem like mine, and some don’t. The signature is similar, but I can’t say whether it is mine or not.” He produced the seal which he had in use in 1927, and made the impression of the seal on a blank sheet of paper, which was offered in evidence, but does not appear in the transcript. He testified: “The impression I now make with the seal and the impression of the seal on the deed which I examine being compared, I believe the impression just made on the paper is a little bit plainer than the one on the deed. The seal now seems to make a dim impression. I do not know whether it made a clearer impression in 1927 than now or not.” He admitted that the 'signature on the deed resembled his signature, and would not say that it was not his signature, but testified: “Comparing signatures and individual letters in the signature on the deed, I don’t generally make waves like that. That looks more like a flowing hand. I never made a wave much like that.” There w.as offered in evidence an affidavit for a warrant of arrest issued by Whitaker, as a justice of the peace, and his signature on the affidavit for the warrant appears to be identical with his signature on the deed.
There was offered in evidence a note dated December 3, 1925, payable to the Bank of Alpena, which has the admitted genuine signature of O. J. Pursley. Sterlin Hurley testified that he was the cashier of that bank from 1923 to 1930; that later he had been with the National Banking Department for four and one-half years, and had since been with the Federal Land Bank. He did not undertake to qualify as a handwriting expert, but did testify that he was familiar with different hand-writings, and expressed the opinion that the deed con- tamed the genuine signature of O. J. Pursley. This note, containing the admitted signature of O. J. Pursley, and the original of the deed in question, have been submitted for our examination and comparison, and they appear to us to be the handwriting of the same person. Martha did not submit her signature for comparison.
Upon the question of H. E. Pursley’s liability for the $600 sued for in the amended complaint, it may be said that much testimony was introduced relating to matters more or less collateral, principally in regard to the manner in which it was paid, if paid at all.
The land here in question was purchased in 1920, and Martha testified that money inherited by her from her father was used in its payment. At that time, and for some years subsequent thereto, the brothers owned jointly a farm in Boone county, and many head of cattle and a number of mules, and some other personal property, and much of the testimony relates to the disposal of this property; but we think no useful purpose would be served in reviewing and reciting the conflicting testimony on this subject. H. E. Pursley testified that he paid this debt, and he insists also that if not paid, the debt has long since been barred by the statute of limitations. We do not know from the record before us which of these defenses the chancellor sustained; but we think a finding in appellees’ favor, on either ground, could not be said to be against the preponderance of the testimony.
Appellants insist that the debt is not barred by the statute of limitations, for the reason that it was payable when the partnership existing between the brothers had been settled, and that there has been, even yet, no settlement. We do not think, however, that the testimony established the existence of a partnership relation between the brothers. No transaction was shown in which they had shared either the profit or the loss. It does appear that at one time they owned jointly considerable livestock, and it also appears that this joint ownership had diminished as the stock was sold or traded. Appel lants do not ask for an accounting of the assets of the partnership, and they rely on its existence only to defeat the plea of the statute of limitations.
After the purchase of the land here in question, in 1920, both brothers for a time resided on it, hut O. J. returned to Boone county and resided on another tract of land which the brothers owned as tenants in common. Thereafter IT. E. Pursley accumulated livestock, concerning which no contention is made that O. J. had any interest. Prior to 1927, the date of the deed alleged to have been forged, the land there described was assessed for taxation in the names of both brothers, and they jointly paid the taxes. After 1927, H. E. caused the land to be assessed in his individual name, and all tax receipts thereafter were issued to H. E. individually. It is conceded that II. E. proceeded to make various improvements on the land, of which fact his brother was advised, and it is not contended that his brother ever made, or was asked to make, any contribution to the payment of these expenses.
It must he remembered that the land in question was purchased by the brothers in 1920, and the amended complaint alleging the loan of $600, used in its purchase, was not filed until December, 1943, and the testimony of H. E. Pursley is to the effect that the last of the personalty, consisting of some cattle and mules, OAvned by the brothers jointly, was sold in 1928, and that the proceeds of this sale were applied to the payment of a joint note of the brothers to one T. L. Richesin. However, that may be, we think the statute of limitations certainly'began to run May 15, 1938, the date of a letter admittedly received by Martha, written by Virgie for her husband, H. E. Pursley, which expressed surprise that demand for payment had been made, and asserted that the debt had been paid. We think the statute ran from that date, if the demand was not previously barred.
On the whole case, we think the action of the court in dismissing the case is not contrary to the preponderance of the evidence, and the decree will be affirmed. | [
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Smith, J.
This litigation arose out of a collision which occurred May 31, 1943, between an automobile, in which the plaintiff was riding, and one of the defendant’s trains, at the point where the railroad tracks crossed North Front Street in the city of Forrest City.
There was a verdict and judgment for plaintiff for the sum of $2,300, from which is this appeal.
Plaintiff stopped his. automobile as he approached the railroad track, but he did so at a point where his vision was obstructed by a building, which will be referred to as the Yaccaro Building. The testimony is undisputed that as plaintiff approached the track the range of his view of the track was enlarged, and had he stopped at a point 25 feet east of the intersection of the street and the railroad track, he would have had an unobstructed view of the approaching train for a distance of 840 feet, before it reached the intersection. Plaintiff had lived in Forrest City for 26 years, and was thoroughly familiar with the surroundings and the location of the Vaccaro Building which obstructed his vision. Plaintiff was driving east on North Front Street, and the train which struck his automobile was • traveling south. Although plaintiff stopped his car before driving upon the track, it is undisputed that he did so at a point where this precaution was not effective. Plaintiff placed the point at which he stopped 35 feet from the track, but the presence of the Yaccaro Building, and its proximity to the railroad track, was such that he was afforded from that point a view of onfy a few feet of the railroad track.
• Ordinary care would have suggested to one familiar with the locality, as the undisputed testimony shows plaintiff to have been, that the precaution of stopping and looking should have been taken at a point where that action would have been effective. ' Had he done so he would have known by either looking or listening that a train was approaching.
The judgment will not, however, be reversed on that account, for the reason that there was testimony legally sufficient to support the finding that the Railroad Company was also negligent, in that warning of the train’s approach to the crossing was not given by ringing the bell, or blowing the whistle of the engine, while the train approached the crossing, as the law required. The testimony was conflicting as to whether these signals, or either of them, were given. There was undisputed testimony that the whistle was blown, but the jury was warranted in finding that this signal was given, not for the Front Street crossing, but before reaching the Jackson Street crossing, a distance of considerably more than 80 rods from' the crossing where the collision occurred.
In the opinion of the trial court the case made was one calling for the application of what is known as the comparative negligence doctrine, and upon that theory, and upon the authority of § 1-213, Pope’s Digest, the court gave an instruction reading as follows:
“Contributory negligence of the plaintiff is a complete bar to his right of recovery in this action, provided you should find from the testimony that such contributory negligence was equal to, or greater than, the negligence, if any, of the railroad company. If, however, you should find from the testimony that the railroad company was negligent and that the plaintiff was negligent, but that the negligence of the plaintiff was less than the negligence of the railroad company, your verdict should be for plaintiff. In this event, however, it would become your duty to diminish the damages recoverable by plaintiff in that proportion which his negligence bears to the negligence of the railroad company. In other words, this is the comparative negligence doctrine of the State of Arkansas, and simply means that you should compare the negligence of plaintiff and defendant. As heretofore stated, if the negligence of the plaintiff is equal to or greater than the negligence of the defendant, then plaintiff cannot recover. But, if the negligence of the plaintiff contributed to his injuries, but was less in degree than the negligence of the railroad company, then the amount of damages recoverable by. him should be reduced by that extent to which his negligence compares with the negligence of the defendant.”
The correctness of this instruction is not challenged, and we think the testimony warranted the court in giving it. Plaintiff sustained very serious and painful injuries, the nature and extent of which are not abstracted by appellant, and no contention is made that the judgment is excessive. The testimony would sustain a much larger verdict than the one recovered, but the jury no doubt found both plaintiff and defendant were negligent and reduced the damages as directed in the instruction above copied. We are unable to say that the testimony did not warrant the submission of the case to the jury upon this theory, and the judgment must, therefore, be affirmed, and it is so ordered. | [
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McFaddin, J.
This appeal involves the Firemen’s Belief and Pension Fund Act (Act No. 491 of 1921 and amendments) as found in § 7737, et seq., Pope’s Digest.
Appellee filed this action against appellants, who are the trustees (§ 7738, Pope’s Digest) of the Firemen’s Belief .and Pension Fund of the city of Hot Springs, praying that he be granted a pension under the act. The salient facts, shown by stipulation and evidence practically uncontroverted, are: appellee served as a fireman of the city of Hot Springs from January 1, 1926, to May 10, 1942, when he entered the United States Army. He received a disability in line of duty in the United States Army on June 5, 1942, and received his honorable discharge from the Army on June 18, 1943. On August 1, 1942, the city of Hot Springs passed its ordinance No. 2081 which, omitting caption and enacting clause, reads as follows:
“Section I. That all members of the Hot Springs Fire Department or the Hot Springs Police Department who have volunteered or been drafted into the Military Service of the United States of America since December 6, 1941, shall, upon their honorable discharge from such service, be restored to their positions with such departments.
‘ ‘ Section II. That the time during which such members shall be in the military service of the United States of America shall be counted upon their records as service in the above-named departments, or either of them, so that such members, upon their return to service in either of the above-named departments shall have the same status as they would have had if they had not been in the military service of the United States and had been on constant duty with their respective department.”
This ordinance was in all things repealed by ordinance No. 2090 on October 4, 1943. But in the interim (on September 10, 1943) appellee made application to appellants for a pension. This application for pension was rejected some time after September 15, 1943; and thereafter, on January 20, 1944, appellee filed in the Garland circuit court the action involved on this appeal, praying that he either receive pension of $57 per month for the rest of his natural life, or be reinstated to active duty as a fireman. All the facts above recited are uncontroverted, as also are that the pay of a regular fireman was $114 per month; and at the time of appellee’s discharge from the Army, and the time of the trial below, he was physically disabled from performing the duties of a fireman.’
The trial court, sitting as a jury, found that appellee received his disability “in line of duty as a soldier in the Army of the United States; and that the disability so received was of such nature as' to preclude him from reinstatement to his former position in the fire department in the city of Hot Springs”; and the trial court adjudged- that the appellee was entitled to a pension of $57 per month beginning on June 18,1943, and continuing for his natural life. From an unavailing motion for new trial, appellants prosecute this appeal, and the following topics dispose of the case.
I. The Firemen’s Relief Act Independent of the Municipal Ordinance. Before we consider the effect of the municipal ordinance, it is well that we first examine the Firemen’s Belief Act. This was Act No. 491 of 1921, and is now found in §§ 7737-7757, inclusive, of Pope’s Digest. Subsequent constitutional and legislative enactments affecting the act are Act No. 30 of 1939; Act No. 84 of 1939; Amendment No. 31 to the Constitution, adopted in 1940; Act No. 14 of 1941; and Act No. 167 of 1943. Each of the following cases has involved some question about the act or the amendments. Paragould v. Thompson, 190 Ark. 847, 82 S. W. 2d 31; Jones v. Had- field, 192 Ark. 224, 96 S. W. 2d 959; Firemen’s Relief Fund of Stuttgart v. Buerkle, 193 Ark. 157, 97 S. W. 2d 914; Firemen’s Relief Fund of Stuttgart v. Rittman, 198 Ark. 580, 129 S. W. 2d 595; Adamson v. Little Rock, 199 Ark. 435, 134 S. W. 2d 558; McLaughlin v. Lovett, 204 Ark. 708, 163 S. W. 2d 826. The last-mentioned case gives the history of some of the various enactments.
The pension claimed by appellee is for-disability. The provision in the act covering disability is found in § 7741 of Pope’s Digest, and reads in part as follows:
“Whenever a person serving as a fireman in such city or town shall become physically or mentally disabled while in, and in consequence of, the performance of his duty as such fireman, said board may, upon his written request, . . . retire such person from active service and . . . shall order and direct that he be paid from said fund a monthly pension equal to one-half of the amount of the salary attached to the rank which he may have held. . .
It will be observed that to be entitled to a pension for disability, the fireman must have become ‘ ‘ disabled while in, and in consequence of, the performance of his duty as such fireman.” The uncontroverted facts here show that appellee did not receive his injury in, and in consequence of, the performance of his duty as such fireman. On the contrary, he received his injury while on target practice in the United States Army. This was entirely disconnected from his work as a fireman in Hot Springs. We have great admiration for a soldier of our country, but the Firemen’s Pension Fund is a trust fund for those persons described in the act as eligible thereto, and we cannot let our patriotic zeal overcome our judicial duty. It is as clear as day that the appellee did not receive his injury at a timé or place, or in a manner, within the purview of the Firemen’s Pension Relief Fund Act of this state. In 21 R. C. L. 243, in discussing the nature of the injury as affecting the right to pension, the rule is stated:
“Statutes providing for pensions to policemen and firemen limit the right thereto to cases of injuries or death resulting from injuries received ,in the line of duty. Construing such a provision, death resulting from suicide while on duty is not considered as resulting from an injury received in the line of duty.”
See, .also, 40 Am. Juris. 983, and Annotation in 20 L. B. A., N. S., 1176, on the subject, “Nature and Circumstances of Injury as Affecting Bight to Share in Pension or Insurance Fund for Policemen and Firemen.” And see, also, Cosgrove v. Carey, 278 N. Y. 350, 16 N. E. 2d 361, and State v. Lentz, 132 Ohio St. 50, 5 N. E. 2d 167. We, therefore, conclude that appellee is not entitled to a pension for disability under § 7741 of Pope’s Digest unless the ordinance No. 2081 of Hot Springs affords him some support.
II. The Effect of Ordinance 2081 on Appellee’s Claim for Pension. Appellee claims that the municipal ordinance is broad enough to make his injury in the Army the same as if he had been injured while in, and in consequence of, the- performance of his duty as a fireman. But does the ordinance seek to accomplish this result? Section I of the ordinance says that any fireman, who may have entered the Army shall, upon discharge, be restored to his former position. Section II of the ordinance says the time in the Army shall be counted as time in the fire department and, upon return, the soldier shall have the same status he would have had, had he been on constant duty with the fire department.
The ordinance does not say that any injury received in the Army would be considered as received while in, and in consequence of, the performance of his ’duty as a fireman. The ordinance only says' the' time in the Army is to be counted as though the soldier had been on constant duty as a fireman. The injury that the appellee suffered in the Army was shown to have been a knee injury sustained when he hit his knee on. a stump during target practice. He could have sustained such an injury while hunting, even if he had been all the time a fireman in Hot Springs. If he had sustained the injury while hunting, he would not have been entitled to a pension under the Firemen’s Act for the reasons, as we have already shown. The ordinance said that the Army time should count on his retirement time, hut it did not say that any injury he might receive in the Army would entitle him to the same benefits for which he might have been eligible had the injury occurred while in, and in consequence of, the performance of his duty as a fireman. So the city ordinance provides the appellee no support.
III. The Ordinance Could Not Enlarge the Stahite. Furthermore, if the ordinance had actually sought to accomplish what the appellee claims, we would be compelled to hold the ordinance void to the extent that, it went, beyond the statutory enactment by the legislature. The legislature originally created the fund and prescribed the conditions that must exist before any person could become a beneficiary, that is, in case of disability, that the injury be sustained in, and in consequence of, the performance of his duty as such fireman. The Constitutional Amendment No. 31 says that the eligibility for pensions “shall be such as may be provided by law.” Act No. 14 of 1941, passed in keeping with the constitutional amendment, says, in § 4, that the funds shall be distributed “to the same class of beneficiaries and in the same manner as the funds provided for” in Act No. 491 of 1921. There was no intention in the constitutional amendment or in 'the statutory law that the cities could broaden the lists of beneficiaries. The city council could not, by ordinance, broaden the conditions of the statute. Article XII, § 4, of our Constitution says “No municipal corporation shall be authorized to pass any law contrary to the general laws of the state. ’ ’ In construing this provision in Morrilton v. Comes, 75 Ark. 458, 87 S. W. 1024, Mr. Justice Battle said:
“. . . the Constitution denies to the Legislature the power to authorize municipal corporations to pass any laws contrary to the general laws of the state. So the ordinance, being contrary to the general law of the state, is void. State v. Lindsay, 34 Ark. 372.”
And in Greenwood v. Smothers, 103 Ark. 158, 146 S. W. 109, 'Chief Justice McCulloch, speaking "of a municipal ordinance that was broader than tbe statute, said:
“. . . tbe ordinance of tbe town council cannot, of course, be broader tban tbe statute upon wbicb it is based.”
And to tbe same effect, see 37 Am. Juris. 787, and McQuillin on Municipal Corporations, 2d Ed., §§ 678, 683, and 685. Appellants are trustees of a fund, and are bound to administer tbe fund by a state law ratber tban a municipal ordinance, and tbe city of Hot Springs could not by municipal ordinance change a state statute.
IY. The Federal ■Selective Service Act Does Not Apply. Finally, appellee claims that be is an.honorably discharged serviceman, and is entitled to this former employment, claiming that tbe Federal Selective Training and Service Act guarantees him that employment. An investigation of tbe law discloses otherwise. The pertinent section of tbe act may be found in 50 U.S.C.A. Appendix, § 308. Tbe act does not mandatorily apply to a case like this one, where tbe soldier was in tbe employ of a political subdivision of a state. Tbe Federal Government did not attempt to make tbe act mandatory on states and political subdivisions. In subsection (C) of § (b) of § 308 tbe act says: “. . . if such position was in tbe employ of any state or political subdivision thereof, it is hereby declared to be tbe sense of tbe 'Congress that such person should be restored to such position or to a position of like seniority, status, and pay. ’ ’
But even if tbe act were mandatory on tbe city of Hot Springs, there are two other reasons why tbe appellee herein is not entitled to successfully invoke tbe act in this case; and these reasons are:
(1) Tbe appellee was discharged from tbe Army on June 18, 1943, and tbe first time that be applied to tbe city for reinstatement as a fireman was on September 10, 1943, being some 82 days after bis discharge. Condition 3 of subsection (b) of § 308, supra, requires that the veteran must make application for re-employment within forty days after he is discharged from military service. The appellee failed to make application within the statutory time.
(2) The appellee was physically disabled from discharging his duties as a fireman; and requirement No. 2 of Subdivision (b) of § 308, supra, requires that the veteran be “still qualified to perform the duties of such position.” By the appellee’s own testimony, he placed himself clearly outside of the provisions of the Federal Selective Service Act.
It follows, therefore, that the trial court erred in rendering judgment against appellants; and the judgment of the lower court is reversed, and the cause is-dismissed.
Smith, J., concurs. | [
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Knox, J.
The question presented by this appeal is whether in view of the 'special facts and circumstances connected with the sale of a tractor, the seller thereof could he held liable for special damages resulting from the loss of crops, occasioned by inability to cultivate the same because the tractor could not be used at night, the seller Having failed to furnish starter and lighting équipment for the tractor within, the time contemplated by contract.
On or about December 4, 1941, appellant verbally contracted with appellee, Gay Lacy, dealer for Interna tional Tractors, for the purchase of one H. tractor, one H. M. 221 cultivator, two cylinders, and one 9 A. disc harrow, for a total price of $1,485. The parties agreed that buyer would deliver and seller accept a pair of horses and an old tractor for a credit, for $642, and that the balance of the purchase price, $843, together with a finance charge of $53.71, a total of $896.71, should be represented by a title retaining note, payable in three installments as follows: 10/1/42 — $404.84, 4/1/43— $162.72; and 10/1/43 — $329.15.
Because of the limited number of tractors available, it was agreed that delivery of the new equipment might be postponed until about March 1, 1942, and as a matter of fact delivery was actually delayed until after May 1, 1942. In the meantime appellant had surrendered to dealer the horses and old tractor.
The new equipment was finally delivered to appellant’s home at a time when he was absent therefrom, hut a few days thereafter the dealer returned and requested appellant to execute the note and the sales contract. Appellant testified that he at first refused to execute the papers, because the tractor was not equipped with lights and starter, hut upon the express promise by dealer that such equipment would be supplied within three weeks he finally did sign the papers. On account of governmental priority regulations this equipment was not supplied within the three weeks period. In November, 1942, the dealer obtained this equipment, and requested that appellant bring the tractor to his shop so that it might he installed. Fearing that the tractor would be held for- past due installment on note, appellant refused to deliver it to dealer, hut insisted that equipment be installed at his home, and while tractor was in his possession. This equipment was actually installed on the tractor after this action was begun.-
When the equipment, without starter and lighting equipment, was delivered in May of 1942, appellant did sign the note, and, also, a document designated “Order for Farm Equipment.” These instruments were introduced in evidence at the trial. No words appear in these written instruments indicating that any part of the equipment had not been delivered, nor that the dealer was charged with notice that the tractor was to be used in cultivating a crop at night, nor that the parties were contracting with respect to special damage which might accrue to appellant by reason of loss of crops resulting from his inability to use tractor at night for want of lights thereon. The note and contract each lists one article of equipment included in the sale and price thereof as follows : ‘ ‘ Two cylinders $20. ’ ’ Appellee Lacy, the dealer, in his brief says that this item “constituted the lighting equipment for this tractor.”
The note was indorsed and negotiated to appellee, International Harvester Company, on June 4,1942, which company began this action in replevin on January 16, 1943. Appellant filed- answer and also filed cross-complaint against Lacy, the dealer, and the International Harvester Company. His cross-action was based upon the failure to deliver the starter and lighting equipment, and the resultant loss occasioned by inability to use the tractor at night. At the time the original cross-complaint was filed, the equipment had not been placed on the tractor. He alleged: “That by reason of the failure of the cross-defendant, Gay Lacy, and the International Harvester Company, to equip said tractor with lights and a starter as he agreed to do, the defendant was denied the use of said tractor at nights over a period of forty-five days; and by reason of such deprivation, the-defendant was unable to plant, cultivate and harvest a part of his crop, namely, twenty-five acres of land which he could and would have planted and cultivated in soy beans if he had had the lights and starter on said tractor, and by reason of such loss, the defendant has been damaged in the sum of $10 per night, for each and every night he was unable to use said tractor, or a total sum of $450, which amount he is entitled to set off against the indebtedness of $896.71 mentioned in the note sued on.”
The prayer was for said sum of $450, and the ‘ ‘ additional sum of $100, the value of the lights and starter which were not delivered.”
The starter and lighting equipment was later delivered and thereafter appellant, in an amendment to his cross-complaint, stated: “Defendant further says that the starter and lights in question were in fact delivered about April 1, 1943, and installed, and, while they were second-hand, or appeared to be so, and have never been satisfactory, they have been retained by the defendant, and the demand for their value is therefore waived.” His amended prayer is for $450' by way of special damages as a set-off against the note sued on . . . or . . . judgment . . . against Lacy for said sum.”
Other facts reflected by the record, which relate directly to the question of special damages will be stated in the course of the opinion.
Both here and in the court below, appellant limited his defense solely to his right to recover special damages. The trial court held that the facts presented by the record were not sufficient to justify submission of the question to the jury and directed a verdict against appellant.
Ordinarily when a seller fails to deliver goods within the time agreed upon the buyer is entitled to recover as damages the difference between the contract price and the market price at the time of the breach. Under some circumstances, however, a buyer may recover special or consequential damages resulting from failure to deliver, or delay in delivery. The rules applicable in such cases are fully discussed in the case of Hooks Smelting Co. v. Planters Compress Co., 72 Ark. 275, 79 S. W. 1052, which case has been consistently cited and adhered to. Long v. Chas. T. Abeles Co., 77 Ark. 150, 91 S. W. 29; Pine Bluff Iron Works v. Boling & Bro., 75 Ark. 469, 88 S. W. 306; Sager v. Jung & Sons Co., 143 Ark. 506, 220 S. W. 801; Southwestern Bell Tel. Co. v. Carter, 181 Ark. 209, 25 S. W. 2d 448; Interstate Grocery Co. v. Namour, 201 Ark. 1095, 148 S. W. 2d 175.
In Hooks Smelting Co. v. Planters Compress Co., supra, Mr. Justice Riddick points out that the rule of law relating to special or consequential damages was first announced in the English case of Hadley v. Baxendale, 9 Exch. 341.
After reviewing and criticising the interpretation given to the English case by certain textwriters, the learned justice declared what this court had determined was the correct rules of law for the assessment of special damages. A complete'restatement of these rules, as set forth in that opinion, is unnecessary. For the purpose of this opinion it is necessary to point out only that in order to render a seller liable to the buyer for special or consequential damages arising from delay in delivering the article of sale, it is necessary that at or before the time of the making of the contract of sale he knew of the special circumstances which would expose the buyer to special damages by reason of the delay in delivery, and that such seller at least tacitly consented to assume the particular risks arising from such delay. The seller cannot be charged with special damages, where his knowledge respecting the special circumstances which would cause such special damage is acquired after the purchase price of the article of sale is fixed. But notice of such circumstances is not alone sufficient to make the seller liable, for as was said in Hooks, etc., v. Planters, etc., supra: “where the damages arise from special circumstances, and are so large as to be out of proportion to the consideration agreed to be paid for the services to be rendered under the contract, it raises a doubt at once as to whether the party would have assented to such liability had it been called to his attention at the making of the contract unless the consideration to be paid was also raised so as to correspond in some respect to the liability assumed. To make him liable for the special damages in such a case, there must not only be knowledge of the special circumstances, but such knowledge ‘must be brought home to the party sought to be charged under such circumstances -that he must know that the person he contracts with reasonably believes that he accepts the contract with the special condition attached to it.’ In other words, where there is no express contract to pay such special damages, the facts and circumstances in -proof must be such as to make it reasonable for the judge or jury trying the case to believe that the party at the time of the contract tacitly consented to be bound to more than ordinary damages in case of default on his part. ”
Evidence relating to notice and, also, relating to circumstances indicating an implied agreement by seller to be liable for special damages is meager, vague and indefinite. Responding to a general question from his counsel, appellant testified in detail as to the original sales agreement made on December 4, but failed to recount that in such agreement there was any mention of the starter or lighting equipment, the necessity therefor, or special understanding with respect thereto. Referring to the conversation had between himself and Lacy relative to these items after the tractor was delivered, he testified as follows: “I says ‘Mr. Lacy I can’t use this tractor. ... I don’t want it without a starter or lights.’ And I told him that when we traded.” “I had been operated on and didn’t want the tractor that had no starter.” Asked what reason he had given to the dealer as to why he “wanted the lights,” appellant replied “so that I could operate it at night, I had nearly 200 acres of land to work.” To the leading question— “Did you tell Mr. Lacy that you required the starter and lights and the reason why at the time you made the original trade with him?”, appellant answered — “Yes, sir.”
The above quotations reflect the entire evidence contained in the record relative to special damages. Conceding that such evidence is sufficient to show that appellant communicated notice to the dealer on or before December '4, 1941, that he desired lighting equipment so that he might work at night, there is nothing in the testimony showing circumstances surrounding and connected with the transaction which were calculated to bring home to the dealer knowledge that appellant expected him to- assume liability for a crop loss, which might amount to several hundreds of dollars, if he should fail to deliver a $20 lighting accessory. There was, of course, no such express contract on the dealer’s part, and tbe facts and circumstances are not sucb as to make it reasonable for tbe trier of facts to believe tbat tbe dealer at tbe time tacitly consented to be bound- for more than ordinary damages in case of default on bis part.
Furthermore, appellant’s claim for damages, asserted in bis cross-complaint, is based upon allegations tbat be was prevented from planting and growing a twenty-five-acre crop of soybeans. Tbe measure of damages for preventing planting of a crop is tbe rental value of tbe land. Dilday v. David, 178 Ark. 898, 12 S. W. 2d 899; St. L., I. M. & S. Ry. Co. v. Saunders, 85 Ark. 111, 107 S. W. 194. Proof of tbe rental value of tbr twenty-five acres is absent from tbe record.
We are convinced tbat tbe trial court did not err in dismissing appellant’s cross-complaint and directing a verdict against bim for tbe full amount of tbe note and interest. Tbe judgment is affirmed. | [
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Holt, J.
Appellees, John W. Clay with his son, were engaged in mining, selling and shipping coal in Sebastian county, Arkansas, as the Clay Excelsior Coal Company. In February, 1940, they shipped four cars of coal, involved here, to the O. W. M. Miller Coal Company of Omaha, Nebraska, under separate, ordinary straight bills of lading, appellees being the consignors and the Miller Company, the consignee, in each of the four bills of lading. On the day following the receipt of the bills of lading by the appellees, they forwarded them, by mail, to the consignee, Miller Company, in Omaha, which received them in due course. Shortly after the bills of lading were mailed to the Miller Company and while one of the cars of coal was still in the yards of the initial carrier and the other three cars were in transit, appellees placed a diversion order for the four cars in the hands of the railroad company. The cars, however, were not diverted in accordance with the order of appellees, but were delivered by appellant to the original consignee, the Miller Company, which company sold the four cars of coal to its customers. Appellees instituted the instant suit to recover for the value of these four cars of coal, which they alleged appellant misdelivered, and recovered judgment.
This is the second appeal in this case. On the former appeal, which appears in 205 Ark. 300, 168 S. W. 2d 621, the judgment was reversed and the cause remanded, (a) because “there was no competent testimony as to the value of the coal, except two cars,” and (b) in order that the question of the ownership of the four cars in question at the time of the diversion order might be determined.
We think the question of the ownership of the coal at the time of the diversion order is decisive of this case. After a careful review of the record before us, we have reached the conclusion that the undisputed testimony is to the effect that the Miller Company was the owner at the time of the diversion order by appellees, and therefore that the trial* court erred in refusing to instruct a verdict for appellant at the close of all the testimony in compliance with appellant’s request therefor.
The law seems to be well settled that a consignor of goods, after he has sold them to a consignee and is no longer the owner, has no right to divert these goods to another consignee while in transit, unless it develops that the original consignee to whom the goods were sold has become insolvent. In the instant case, there is no evidence of the insolvency of the Miller Company.
In Michie on “Carriers,” vol. 1, p. 349, § 499, the text writer says: ‘ ‘ The prima facie effect of a bill of lading, as regards the consignee, is to vest- the ownership of the goods consigned by it in him, and the transportation is at his risk, but the proof may show that the consignor is still the owner. If the bill of lading shows that the shipment is made for the benefit of the consignee, it is almost decisive of the consignor’s intention to part with the ownership of the property. . . . Bight of Carrier to Treat Consignee as Owner. — The consignee named in bill of lading is, for all purposes, considered as the owner of the goods, and the carrier is entitled to treat him as the owner until the contrary appears. The shipment in itself, until it is shown that the consignee is not the owner, vests him with the title of owner. ”
In 13 O. J. S., p. 290, § 147, it is said: “The true owner of goods transported by a common carrier or for warding agent has the right to have his consignment while in transit withheld or diverted at any intermediate point through which it passes. Instructions for a change in the destination of goods in transit must emanate from the party who is the real owner or one who has the authority to divert; otherwise the carrier alters the destination at its peril. ... In the absence of anything to show the contrary the consignee is presumed to be the owner of the goods shipped, and the carrier before complying with a demand for a diversion of the shipment by one not the consignee is entitled to be furnished with evidence of ■ the ownership of the person making the request and, in case he fails or refuses to furnish it, he cannot complain thereafter of a refusal to divert the shipment. As the consignee is presumptively the owner of the goods in transit, unless the carrier is advised that the shipper has retained title, the carrier is justified in complying with the consignee’s request to deliver the goods at some other destination than that designated by the consignor and incurs no liability to the latter by so doing.”
And, in M. & L. R. R. R. Co. as Reorganized, v. C. M. Freed, 38 Ark. 614, this court held: (Headnote 2) “Upon the consignment of goods the title becomes vested in the consignee, absolutely and against all the world, subject only to the carrier’s lien for freight, and the consignor’s right of stoppage in transitu upon the consignee’s insolvency.”
On this question of ownership, the testimony is to the following effect. In June, 1940, subsequent to the shipment of the four cars of coal in question and the diversion order in February, 1940, appellees sued the Miller Company in the Sebastian circuit court for the value of approximately forty cars of coal, which they alleged they had sold and shipped to the Miller Company during the months of January and February, 1940. The four cars involved here were included among these forty cars. There was evidence by Clay, Sr., that these four cars were erroneously included in this Sebastian county suit, without his knowledge or consent. The complaint further alleged that the Miller Company, consignee of tlie coal in question, was “engaged in the dealing of coal, purchasing same for resale in the several states of the American Union . . . from mines in the State of Arkansas.” Appellees admit filing this Sebastian county-suit and nowhere denied that the remaining thirty-six cars in the suit were sold to the Miller Company. They admit that the four cars were shipped to the Miller Company as consignee, unconditionally, and assert that at the time the diversion order was given the Miller Company owed them money, and that they owed the company nothing.
John W. Clay testified: “ Q. Along with the mining of coal, you also sold coal? A. Yes sir. Q. Along in 1940, you shipped certain cars of coal that were not delivered according to orders. A. Yes sir. Q. Explain what happened. A. I originally shipped 4 cars to O. W. M. Miller & Company. During the past two years we have had-this agreement to ship him coal. I did not ship him more until his bill had been paid. . . . Q. The same day that you got the bill of lading from the Midland Valley, your bookkeeper mailed it to O. W. M. Miller? A. Yes sir. Q. That was several days before you told the Midland Valley to divert the coal? A. Grot it on the 14th and sent it on the 15th. Q. You told them to divert it on the 15th, so you sent the bill of lading before you told them to divert? A. Yes sir.”
C. E. Brown, appellees ’ bookkeeper for many years, testified: “Q. Claude, did you attend to the billing of these cars, MP-22510, CBQ-166268, MP-67631 and MP-22582, the coal described in this diversion order Exhibit E? Did you make the bills of lading? A. Yes, lots of the time Mr. Sanders helped. Q. When you made out the bills of lading, what did you do with them? A. Mr. Sanders got a copy. Q. You got the original? A. Yes, sir. Q. What did you do with it? A. Sent it to buyer. Q. In this case, the O. W. M. Miller Coal Company? A. Yes, sir. . . . Q. The bills of lading you did send to Miller, what was the purpose? A. You send the bill of lading when you sell coal. Q. When you sell coal and send it to him, you also send the bill of lading? A. Yes, bnt you can divert a car of coal any time yon get ready. ’ ’
O. W. M. Miller, owner and operator of the O. W. M. Miller Coal Company, testified positively that he was the owner of the fonr cars involved here. He testified by deposition and cross-examination was waived.
John W. Clay further testified: “Q. You heard the reading of the Miller deposition. Have yon ever agreed to let Mr. Miller or the O. W. M. Miller Coal Company have the entire output of your mine? A. No sir. Q. With reference to the shipping of these fonr cars . . .? A. Miller owes me $900 and some cents besides for these cars.”
We find nothing in the record contradicting the positive testimony of appellees’ bookkeeper, Brown, to the effect that the four cars in qnestion were sold to the Miller Company, the original consignee in the fonr bills of lading. The most that can be said of the testimony of John W. Clay is that he didn’t owe the Miller Company anything when the cars in qnestion were shipped to that company. Whether appellees owed Miller or Miller owed appellees could make no difference if the Miller Company owned the coal and was solvent when the diversion order was made. As heretofore indicated, we think the undisputed testimony shows that the coal in qnestion was sold to the Miller Company and that it was the owner at the time of the diversion order: This being true, appellant was not liable for refusing to obey the diversion order, and the trial court erred in refusing appellant’s request for an instructed verdict at the close of all the testimony.
The facts on this appeal are materially different from those on the former appeal. The decision in that case, therefore, would not become the law of the case. On this appeal, the complete deposition of O. W. M. Miller, taken on interrogatories, was introduced in evidence. This additional evidence of Miller presents additional facts and shows that he was not a factor,- or the agent of the consignor, appellees here, but was buying coal from them and was, in fact, the owner of the coal in question here., Nelson v. Forbes, 172 Ark. 346, 289 S. W. 10.
For the error indicated, the judgment is reversed and since the canse appears to have been fully developed, it is dismissed. | [
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Knox, J.
Initiated Act No. 1, 'commonly known as the Local Option Liquor Law, adopted by the people at the general election of 1942, and published at page 998 of the Acts of 1943, by this appeal is again challenged as being unconstitutional and void. No other question is presented.
Pleadings filed by appellant in the lower courts set forth several grounds of alleged constitutional objection to the Act. Most of these objections were decided adversely to appellant’s contention in our recent case of Yarbrough, et al., v. Beardon, et al., 206 Ark. 553, 177 S. W. 2d 38.
Appellant, in effect, concedes this, and has confined his argument to the question whether such act violates art. II, § 2; art. Ill, § 2, and Amendment No. 8 of the Constitution of the state of Arkansas.
Appellant contends that the Act is in conflict with the three constitutional provisions above referred to, because he says it “is an encroachment of, if not a complete denial of, the right of men in the army and navy . . . at this time to cast their vote. . . .” We understand appellant’s contention to be that, since the Act was adopted by the people at a time when many electors were in the armed forces and away from their voting precincts, they were thereby, denied the right to vote thereon, and thus deprived of their right of suffrage guaranteed by Amendment No. 8 to the Constitution and further assured by art. Ill, § 2 of the Constitution, which provides that “no power civil or military, shall ever interfere to prevent the free exercise of the right of suffrage”; that because such electors had no opportunity to vote for or against the adoption of the Act, it is unconstitutional and void. Appellant’s further contention is that since during the war, service men will have little opportunity to participate in the local elections which may be held under authority of the Act, such Act violates the above-mentioned provision of the Constitution.
The contention is entirely without merit. No elector in the armed forces is, has been, or will be prohibited from voting by any- provision of this Act. It is the war and the necessity for winning it which has taken them away from their homes. This Act had nothing to do with it.
Furthermore, it is nowhere alleged that appellant is serving with any branch of the armed forces of the United States, or that by reason thereof, he has been or will be deprived of his right to participate in. any election held or to be held under the authority of this Act. It is well settled that a litigant can question a statute’s validity only when and insofar as it is being, or is about to be, applied to his disadvantage. Wiseman v. Phillips, 191 Ark. 63, 84 S. W. 2d 91; Arkansas Power & Light Co. v. West Memphis Power & Water Co., 184 Ark. 206, 41 S. W. 2d 755; Ferguson v. Hudson, 143 Ark. 187, 220 S. W. 306.
In the original pleading filed by appellant in the county court, appellant identified himself only as “a citizen and qualified elector within and for Conway county.” In a pleading filed in the circuit court, he declares tliat lie appears “in person and as president of the Conway county citizens committee.” The nature of the last-mentioned organization, and its interest in the controversy is nowhere disclosed in the record. There is nothing in the record which shows appellant to' have such an interest in the controversy as would entitle him to interpose constitutional objections to the Act.
The' judgment is affirmed, and it appearing that the appeal was taken for delay, appellees’ request for an immediate mandate is granted, and the clerk is directed to issue the same forthwith. | [
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Smith, J.
Mrs. Lillie Dowell brought this suit for a divorce from her husband, Lewis Dowell, and as grounds therefor alleged that he had been guilty of such cruel and harsh treatment as to endanger her life, and that he had been convicted of a felony. She alleged also that her husband was disposing of his property with the intent and for the purpose of depriving her of the benefit of § 4393 of Pope’s Digest, this being the section of the statute providing for the division of property of a married couple where a divorce is granted. She prayed that such disposal be enjoined, pending the hearing of her suit for divorce, and that prayer was granted.
An answer was filed in which defendant Dowell admitted that he had been convicted of a felony, to-wit, the crime of manslaughter, but he alleged that the party killed was his wife’s paramour. He prayed that a decree of divorce be granted Mm, on account of Ms wife’s infidelity, and that she be denied any share of his estate.
After hearing much conflicting testimony, the court awarded the wife a divorce, and made division of the husband’s property pursuant to the statute above mentioned, from which decree the husband has appealed.
Disposing first of the right of the wife to a divorce, it may be said that the husband told a •fantastic story of his wife’s attempt to poison him, and of her infidelity to him; it was wholly uncorroborated, which the chancellor did not credit, nor do we.
The parties were married in 1913, and so far as the record before us reflects, only one child, á son named Frank, was born to this union, at any rate he was the only living child when the marital troubles of these parties began in July, 1941. The fathér, at the suit of the son, was committed to the State Hospital for Nervous Diseases, where he remained until April 29, 1942. Returning home from the hospital he killed the man who, according to his testimony, was his wife’s paramour, and he later shot his son. For the first offense he was sentenced to the penitentiary; for the second a fine of $500 was imposed. The son later died, whether from the effect of his wound does not appear.
The decree from which is this appeal contains the finding that, at the time of its rendition, the husband owned certain lands, and finds also, that at the time of the son’s death,'he, the son, was the owner of other lands, which were also described. Probably the most important question in the case is whether the lands owned by the son were ancestral or were new acquisitions. The son had title to the lands owned by him, at the time of his death, under three separate deeds from different grantors, but the major portion of his lands were acquired under a deed from his father and mother, the lands thus conveyed haying belonged to the father.
The relevancy and importance of the question just stated is that the answer thereto determines the interest which the mother takes in the lands of her son, who died intestate, unmarried, without issue and without creditors. By § 4338 of Pope’s Digest, it is provided that:
“When any person shall die, having title to any real estate of inheritance, or personal estate, not disposed of, nor otherwise limited by marriage settlement, and shall be intestate as to such estate, it shall descend and be distributed, in parcenary, to his kindred, male and female, subject to the payment of his debts and the widow’s dower in the following manner:
“First: To children, or their descendants, in equal parts.
‘ ‘ Second: If there be no children, then to the father and mother in equal parts, or, if one parent be dead, then the whole to the surviving parent ;• if no father or mother, then to the brothers and sisters, in equal parts.
‘ ‘ Third: . . . ”
Section 4347 of Pope’s Digest provides that: “In cases where -the intestate shall die without descendants, if the estate come by .the father, then it shall ascend to the father and his heirs; if by the mother, the estate shall ascend to the mother and her heirs; but if the estate be a new acquisition, it shall ascend to the father and mother for life in equal shares, and upon the death of one parent, the share enjoyed by such parent during his or her life shall pass to the sole surviving parent for life, and then, both shares shall descend in remainder to the collateral kindred of the intestate in the manner provided in this-act. . . .”
The court found that the lands owned by the son at his death, were a new acquisition, and upon that finding, awarded to each parent an equal undivided one-half interest in the son’s lands, in fee, and in addition'directed that the wife take, under § 4393, Pope’s Digest, a one-third interest in the land which the father had inherited from his son. There was error in this respect. If the lands were a new acquisition as found by the court (a finding which appellant questioned, and which will later be reviewed) then each parent took an equal undivided one-half interest, but neither took the title in fee, as found by the court. Under § 4347, Pope’s Digest, above quoted, each parent took only a life estate. But in addition to the interest which the mother took as the heir of her son, she was entitled to share, under § 4393, Pope’s Digest, in the interest which her husband took as heir of his son.
As stated, the husband questioned the finding that the son had title as under a new acquisition, the insistence being that the lands conveyed to him by his father and mother, but which had been owned by the father, constituted an ancestral estate, and that having come to the son from the father, they should, as an ancestral estate, ascend to the father alone, and to the exclusion of the mother.
We think, however, that the court was warranted in finding that the son’s estate in the lands owned by him at his death, was not ancestral, but a new acquisition. The deed to the son from his parents recites that it was executed, “For and in consideration of the sum of one dollar and other good and valuable considerations, to us paid by Frank Dowell, do hereby grant, bargain and sell unto the said Frank Dowell, and unto his heirs and assigns forever, the following described lands . . . ,” which are then described.
It was held in the cases of Martin v. Martin, 98 Ark. 93, 135 S. W. 348, and McElwee v. McElwee, 142 Ark. 560, 219 S. W. 30, that ancestral estates come from no other consideration but that of blood; all others are new acquisitions. Our cases on this subject were reviewed in the case of Webb v. Caldwell, 198 Ark. 331, 128 S. W. 2d 691, 122 A. L. R. 814, where we quoted, with approval, the following statement from the case of McElwee v. McElwee, supra: “In order to constitute a gift from a parent to a child an ancestral estate within the meaning of our statute, the conveyance must be entirely in consideration of blood and without any consideration deemed val-' uable in law, . . . ” We think the court was warranted in finding that there was a consideration other than that of blood, this being the labor of the son, both before and after the conveyance to him, in the management of his father’s business.
The real estate here involved was unencumbered, and its sale in solido was ordered. ■ It is insisted that this order was erroneous, and that the lands should have been divided in kind. The sheriff, county judge and circuit clerk of the county were appointed commissioners and directed to consider this question, and an adjournment of the hearing was had to enable the commissioners to report on the question, and they found in a unanimous report that the lands were not susceptible of division in kind, and, upon the approval of that report, the lands were ordered sold. We approve this order, but we think it was error to direct the sale of the land in solido. The value of the respective tracts of land is not shown, and if they were sold in solido, there would be no way of knowing what one tract brought as distinguished from the others. The father has title to certain lands in fee, while he and his wife have only a life estate in other lands, and the proceeds of the sale can be more equitably divided than can the lands themselves, if indeed they could be divided in kind, which the court found could not be done. It is urged that it is error to order the lands sold at all, but § 4393, Pope’s Digest, specially authorizes that action in proper circumstances. See cases cited in the Digester’s note to this section. The order for the sale of the lands will, therefore, be approved, the proceeds to be distributed in accordance with the law.
The real estate was unencumbered, but on June 8, 1943, appellant executed a chattel mortgage on a portion of his personal property, securing a debt alleged to be due James R. Dowell, a nephew. The court held, however, that the wife took her interest in the personalty free from this conveyance, this, no doubt, upon the theory and finding that the mortgage was executed in fraud of and to defeat the wife’s marital rights; and we think the testimony supports this finding, and we, ourselves, find this to be a fact.
Appellant says in Ms brief that “After the summer of 1941 and before 1943 appellant’s domestic difficulties were aired publicly in five separate court proceedings in Boone county,” the home of the parties. There was no testimony as to the debt due by appellant to his nephew except that of the appellant himself, which evidently was not credited by the court below; and the personal property was ordered divided as if it were unencumbered.
It is said in 27 C. J. S., § 273, p. 1078, Chapter “Divorce,” that, “A conveyance made by the husband in anticipation of the wife’s libel for divorce, and to prevent her from recovering alimony, is fraudulent, and may be set aside. . . .” Here, the chattel mortgage above mentioned was executed shortly before this suit was filed, but we think it was executed in contemplation of the suit and fully warranted the court in enjoining appellant from further disposing of his property in the preliminary order made by the court. Our opinion in the very recent case of Renn v. Renn, ante, p. 147, 179 S. W. 2d 657, sustains the action of the court in regard to- thi's mortgage.
It is said in 27 C. J. S., page 1078, Chapter “Divorce,” that, “A conveyance made by the husband in anticipation of the wife’s libel for divorce, and to prevent her from recovering alimony, is fraudulent, and may ’be set aside. . . .” Here, the chattel mortgage was executed shortly before this suit was filed, but we think it was executed in contemplation of the suit and fully warranted the court in enjoining appellant from further disposing of his property in the preliminary order made by the court. Our opinion in the very recent case, not yet officially reported, that of Renn v. Renn, ante, p. 147, 179 S. W. 2d 657, sustains the action of the court in regard to this mortgage.
Much of the testimony in the voluminous record before us relates to the ownership of the personal property as between the father and mother and their son, but it would serve no useful purpose as a precedent in future cases to review this conflicting testimony in detail.
It appears that before the institution of this suit the parties owned 40 head of cattle, and that the wife sold 9 head of these, and that one of them died. The wife testified that the 9 head which she sold were the progeny of the cow and heifer calf given her by her father at the time of her marriage, and that the proceeds of this sale did not exceed the value of her individual interest in the herd, and the decree is predicated upon the truth of this statement.
Thirty head of cattle remained and it was decreed that these were the property of Frank and his father, and that Mrs. Dowell was entitled to a half interest in the cattle owned by her son, the father inheriting the other half. It appears that an execution issued upon the judgment imposing a fine upon Dowell for shooting his son, and that 15 head of the cattle, of the value of $713.25, were sold in its satisfaction, and that after this sale 13 head of cattle were sold by agreement of the parties, under an order of the court.’ If there were other cattle remaining they are not accounted for.
We think it inequitable that the interest of Frank Dowell in these cattle should be charged with the satisfaction of the fine imposed upon the man who shot him, and in the settlement of the proceeds of the sale of the cattle, that item will be charged against Dowell’s interest. Subject to this charge, Dowell will be credited with one-half the proceeds of the cattle and the value of the one-half interest inherited from his son, against which half interest, however, should be charged the interest therein which Mrs. Dowell has under § 4393, Pope’s Digest. Section 2517, S. So H. Digest, now appearing as § 4393, Pope’s Digest, was construed in the case of Beene v. Beene, 64 Ark. 518, 43 S. W. 968, where it was said:
“As to the question.of alimony, that is settled by statute. Sec. 2517, .Sand. So H. Dig. The Legislature, seems to have enacted that statute for the purpose of putting an end to all after controversies as to dower rights, and to settle the matter when a divorce is granted dissolving the marital bonds. Hence the allowance to the divorced wife, who is entitled at all, is exactly or substantially the same as would»be her dower interest in case of death of her husband; that is to say, one-third for life of all the real estate of which he has been seized of an estate of inheritance at any time during the marriage, except such as she has relinquished in due form. The court therefore erred in decreeing her only one-third of the remainder of his estate after deducting the amount of his debts, and should have allotted her one-third the value of his personalty absolutely, without taking his indebtedness into consideration, and should have given her one-third of his realty for her natural life, and ordered otherwise as the statute provides.” See, also, Williams v. Williams, 150 Ark. 319, 234 S. W. 169.
When Dowell was ■ committed to the State Hospital for Nervous Diseases, his son Frank was appointed as his guardian, and upon Dowell’s discharge from the hospital, he filed a proceeding in the probate court for an accounting of the son’s administration during the disability of his father. Exceptions were filed by Dowell to his son’s settlement upon the hearing of which the testimony of his son was offered in evidence and transcribed.
In the decree from which is this appeal the court awarded title to a Ford automobile to Mrs. Dowell, who had referred to it as the property of her son, whereas it is argued that the testimony of the son at the probate hearing above referred to would, if admitted, have shown that Dowell was the owner of the automobile; but the court excluded that testimony. We think this was error. The son was a strong partisan of his mother, yet he testified in the probate proceeding that the car belonged not to her, but to his father. This was testimony given by one while in possession and was against his interest, and should, therefore, have been admitted, and when admitted and considered we think the finding should have been made that the car belonged to Mr. Dowell, and not to his wife. The decree must be modified in this respect. See Norden v. Martin, 202 Ark. 180, 149 S. W. 2d 550, and cases there cited; § 65, chapter on Admissions and Declarations, vol. 1, p. 371, Nichols’ Applied Evidence.
Frank and Ms father owned a garden of Golden Seal or Ginseng which they undertook to divide equally, but on February 12, 1943, Dowell executed a bill of sale for his interest to his brother, W. M. Dowell, which appellant Dowell says was executed in payment of his indebtedness to his brother. This bill of sale was executed while Dowell was an inmate of the penitentiary.
Á part of the Golden Seal was marketed by a receiver appointed by the court. The remainder was shipped by appellant Dowell to St. Louis after the institution of this suit and sold'for the gross sum of $2,558.08 for the account of Dowell’s brother, W. M. Proceeds of the remainder sold by the receiver are in his hands. The proceeds of the sale of the Golden Seal shipped to St. Louis are in the hands of the Commission Company there, which made the sale, and will probably not be paid over to anyone until the title thereto has been adjudicated. W. M. Dowell, for whose account the Golden Seal was sold, is not a party to this proceeding, and is entitled to his day in court, and this he must have by being made a party before his right to the money in St. Louis is concluded by any division of it between Mr. and Mrs. Dowell. Upon the remand of the cause, which will be ordered, further and appropriate action will be taken to vest title to the proceeds of the Golden Seal now in St. Louis.
"We find no error in other orders relating to other personal property, and as to such property the decree is affirmed. But the cause will be remanded for further proceedings in accordance with this opinion. | [
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McFaddin, J.
The question at issue is the liability of a parent' to support his adult daughter, and necessitates the construction and interpretation of a chancery decree directing such support.
In August, 1940, Mrs. Nan P. Worthington filed suit for divorce against C. B. Worthington on the grounds of indignities; and prayed for maintenance for their two daughters under the age of twenty-one, being Rosalind, then aged nineteen, and Helen, then aged sixteen. The defendant entered his appearance and demanded strict proof; and on August 22, 1940, a decree of divorce was entered which, in so far as maintenance was concerned stated: “It is further, ordered and decreed that the defendant shall pay to the plaintiff the sum of $150 per month, the payments to be made in installments of $75 each on the first and fifteenth of each month, to and including February 1, 1941; the said payments of $150 per month to be applied as follows: $50 per month as alimony to the plaintiff and $50 for the support of each of the minor children above named. Tha-t after February 1, 1941, the payments of alimony to the plaintiff shall terminate; and that if at the date of February 1, 1941, the said Rosalind Worthington, now 19, shall be employed and self-supporting the payments of $50 per month for her maintenance shall also be terminated; and the pay nients of $50 per month for the support- of the said Helen Aim Worthington, now 16, shall be continued until she is employed and self-supporting and shall be terminated when she does reach the state of employment and self-support. ” '
C. B. Worthington made the payments of $150 per month to February Í, 1941, as provided in the decree; and made the payments of $100 per month until July, 1941, when Rosaline], (nineteen years of age) became self-supporting; and C. B. Worthington made the payments of $50 per month until June 1, 1943. Helen was nineteen on May 27, 1943, and had completed high school and two years in Junior College. In May, 1943, C. B. Worthington found employment for Helen Worthington that would pay her $110 per month. The work was at the Pulaski County Ration Board. C. B. Worthington testified: “I told her I thought she had reached the point where I thought she was well able. and capable to take care of herself, and that I had arranged to get her a job, and told her what to do with Mr. George Howell here. He said he needed her, and he said a girl with two years of college was better than the average he had in his office . . . and he would be ready to put her to work immediately because he needed some help right then. This was about the fifteenth of May, and I paid her up until June 1.”
Mr. Worthington was substantiated by Mr. George Howell, the executive secretary of the Ration Board. Miss Helen refused the employment, and C. B. Worthington refused to make any more $50 payments and this litigation ensued, being instituted by Mrs. Nan Worthington to compel the continuation of the monthly payments for Miss Helen Worthington. The trial reflected the facts as heretofore and hereinafter detailed.
The chancery court on November 22, 1943, entered a decree requiring C. B. Worthington to pay the $50 per month to November 30, 1943, and to pay $30 per month thereafter; and C. 'B. Worthington has prosecuted this appeal, contending that: (1) since Mis.s Helen was of age she could not legally require support and; (2) even if the decree was contractual so as to r.equire support for Miss Helen “until she was employed and self-supporting,” still she was offered employment and could not refuse the offer, and still demand support. We discuss these contentions.
I. Ordinarily the legal obligation of a parent to support a normal child ceases upon majority of the child. 39 Am. J. 645, Mo. Pac. Ry. v. Forman, 196 Ark. 636, 119 S. W. 2d 747. In Upchurch v. Upchurch, 196 Ark. 324, 117 S. W. 2d 339, it was stated that there was a moral duty on a father to contribute to the support of his children even after they become of age, if the circumstances be such to make it necessary. But in the case here at bar the child was, so far as the record shows, a normal person /in every respect. There was no physical or mental handicap which would imply a continuing obligation of support by the parent. Under our statute (§ 6215 of Pope’s Digest) a female is considered of full age for all purposes at eighteen years of age; so when Miss Helen became eighteen years of age, the legal obligation ceased and ended, in the absence of a contract to the contrary.
But a parent can contract and bind himself to support a child past majority, and such a contract is just as binding and enforceable as any other contract. ‘ ‘ The support of an adult child by a parent, may, of course, be the subject of contract, either expressed or implied, in which case the ordinary rules of contract law are applicable.” (39 Am. J. 710.) “Contracts by one person for the support or maintenance of another are to be construed in accordance with their terms and in the light of the surrounding circumstances.” (13 C. J. 554.) Assuming that the divorce decree provision for support of the children (as previously copied herein) was based on a contract, expressed or implied, we construe the decree in the light of what the parties did; and we find that the father, C. B. Worthington, certainly did support the daughters past the eighteenth birthday of each of them. Miss Rosalind was nineteen when the decree was rendered and he supported her until she received employment and became self-supporting. He likewise supported Miss Helen until slie was nineteen. 'So, adopting the construction and interpretation that the parties put on the decree at the time, and up to the events immediately preceding this litigation, we find no merit in the appellant’s first contention, for he undertook to support Miss Helen past her majority, “until she was employed and self-supporting.”
II. Rendering Performance Impossible. The most favorable point of view for Miss Helen Worthington is that the decree was a contract made for her benefit past her majority. As such she had a cause of action on that contract-in her own right. Chamblee v. McKenzie, 31 Ark. 155; Hecht v. Caughron, 46 Ark. 132; West’s Arkansas Digest, “Contracts,” Key No. 187. Thus, we treat this proceeding as though it were instituted by her. In Dunham v. Dunham, 189 Ia. 802, 178 N. W. 551, the Supreme Court of Iowa held that a divorce decree between parents providing that the husband should pay the child’s expenses at college until the child was self-supporting-required the husband to pay the child’s expenses while at college even after the child was of age; and also the court held that the child, upon reaching majority had a cause of action on the decree.
Miss Helen Worthington testified in this case, and admitted the conversation with her father, but stated that she did not want to accept the employment that her father had arranged for her so she would be employed and self-supporting. She did other work, went to New York to see her fiance,’ and decided to continue at college for two more j^ears and obtain an A. B. degree rather than accept employment and become self-supporting. There is no contention urged by appellee here that the offered employment would not have been “employment and self-supporting.” Miss Helen is, thus, in the attitude of refusing to become employed and self-supporting and still demanding support from her father. Her attitude thus violates the rule of contracts that where one party refuses to perform the contract the other party is excused from the” performance on his side, 13 C. J. 654. In Elliott on “Contracts,” § 1914, it is stated: “It is a well settled principle of law that if by any act of one of tlie parties the performance of a contract is rendered impossible, then the other party may rescind the contract. . . . Where the condition of a bond is possible at the time of making it, and, before the same can be performed, becomes impossible by act of the obligee, .then the obligation is saved. If the impossibility arises directly or even indirectly from the acts of promisee, it is a sufficient excuse for nonperformance.”
In the case of Townes v. Oklahoma Mill Company, 85 Ark. 596, 109 S. W. 548, Mr. Justice McCulloch stated: “It is an elementary principle needing no citation of authority in support, that there is no breach of a contract where performance is prevented by the conduct of the other party. The party whose own conduct prevents performance of a contract cannot complain of nonperformance. ’ ’
In 13 C. J. 647 the rule isolated: “Performance of a contract is excused when it is prevented by acts of the opposite party, or is rendered impossible by him. ’ ’ See, also, Page on “Contracts,” 2d Ed., § 2918.
Miss Helen Worthington makes the plausible argument that she wants to finish college and get an A. B. degree rather than accept employment and become self-supporting. But since she is insisting on the decree as a contract in her favor then she is bound by its terms; and this decree requires the father to continue the support until she is “employed and self-supporting” rather than when she should finish college with an A. B. degree. The end of the father’s legal responsibility to support her, as measured by the terms of the decree, was that she would be “employed and self-supporting,” not that she should have an A. B. clegreé or achieve matrimony. It would be fine if her father would see her through college. Many parents have worked long hours and made great sacrifices for a child to complete college, but these sacrifices were voluntary and an evidence of continued parental love. They were not compulsory by court order on unassumed legal obligations.
It therefore follows that when C. B. Worthington offered Helen Worthington employment so that she woulcl l)e self-supporting she could not refuse that offer and then demand further support from her father. The decree of the chancery court is, therefore, reversed and the cause dismissed.
The Chief Justice dissents. | [
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McHaney, J.
Appellant began this action to obtain a divorce from appellee and to quiet her title to lot 9, block 8, Ward’s Addition to the town of Calion, in Union county. She alleged that she is the owner of said lot and that appellee is making some claim thereto. Appellee answered denying the alleged ground of divorce and asserted that he is the owner of said lot which has on it a large house, furnished throughout; that he bought and paid for said property and had the deed made to her with the express understanding and agreement that she would hold the same in trust for him; that thereafter he made certain repairs and improvements to the house at his own expense to the extent of about $1,000; that the house was insured at his cost and in his name; and that he has paid all taxes and at all times claimed it as his own. He prayed that title be vested in him.
The parties went to trial on the sole issue of the title to said property, which resulted in a finding by the court that, although appellee purchased the property and took the title in appellant’s name, he did not intend in so doing to make a gift of same to her, and that he is now and at all times has been the owner thereof, and entered a decree vesting the title thereto in him. In his written opinion the court said: “To me the testimony is clear, satisfactory and cogent that she does not own a fee simple title, and that the only interest she has in it is that as his wife.” The case is here on appeal.
The question to be decided is one of fact. There does not seem to be any dispute as to the law. It is well settled in this state that where a husband purchases land and causes the deed therefor to he made to his wife, there .is a rebuttable presumption of fact that he intended the conveyance to he a gift to her, and that a trust does not result in his favor. As said in Poole v. Oliver, 89 Ark. 578, 117 S. W. 747, after making substantially the statement above, the court said: ‘ ‘ This presumption may he rebutted by evidence of facts showing the husband’s intention to have been that his wife should take the land as trustee and not for her own benefit; but such facts must have existed or taken place antecedently to or contemporaneously with the conveyance, or so soon thereafter as to form a part of the transaction. Miller v. Freeman, 40 Ark. 62; Robinson v. Robinson, 45 Ark. 481; Chambers v. Michael, 71 Ark. 373, 74 S. W. 516; Womack v. Womack, 73 Ark. 281, 83 S. W. 937; O’Hair v. O’Hair, 76 Ark. 389, 88 S. W. 945.
‘ ‘ Tested by this rule, there is no satisfactory evidence of an intention to create a trust in favor of the husband. In fact, there is no evidence at all except that he occupied the land and cultivated it, and afterwards claimed it as his own; but his use and occupation is referable to his natural desire to manage and care for his wife’s property. Chambers v. Michael, supra.” And in one of our later cases, Hill v. Hopkins, 198 Ark. 1049, 133 S. W. 2d 634, a headnote reads: “Since it is the duty of the husband to make provision for the support and maintenance of his wife, the purchase by the husband of land taking-title in the name of his wife raises the legal presumption that it was a gift to her and that she took as donee, rather than as trustee.” See, also, the more recent case of Aycock v. Bottoms, 201 Ark. 104, 144 S. W. 2d 43. And the rule is also well settled that the proof to overcome this presumption of gift should be clear and convincing. Wood v. Wood, 116 Ark. 142, 172 S. W. 860, and cases there collected and cited.
The cases all seem to hold, as stated in Poole v. Oliver, supra, that “such facts must have existed or taken place antecedently to or contemporaneously with the conveyance, or so soon thereafter as to form a part of the transaction. ’ ’
What are the facts that existed before the conveyance, or at that time, or so soon thereafter as to form a part of the conveyance that would justify a court of equity in finding that the presumption of gift had been overcome, under the- rule stated? When Evans, the grantor in the deed, asked appellee how he wanted the deed made, he was told by appellee to make it to his wife, appellant, “for business reason's.” Nowhere in .this record do we find his “business reasons” amplified or explained. He testified that he had bought oil leases and mineral interests in his wife’s name and that she had always conveyed same at his request to purchasers. The property in question was the home in which he and appellant lived after its purchase and was not business prop erty. We think the testimony that ]je took title to this property in his wife’s name for business reasons is not sufficient to establish a trust in her. On February 20, 1932, appellee purchased lot 7 in the same block, and took the title in his wife’s name. The deed recited a consideration of $50, and in addition to the usual granting clause of “do hereby grant, bargain, sell and convey unto the said Mary Giles Parks” there was the additional clause immediately following “as her individual property and estate.” In the deed to the property in question dated October 14, 1933, those words were omitted, and it is argued that this is a circumstance to show that appellee did not intend the latter purchase to be her “individual property and estate. ’ ’ But the deed was not prepared by appellee and he gave no direction to the grantor to have those words in the later deed of October 14, 1933, and while their presence in the earlier deed might be construed conclusively to show a gift of lot 7, their absence from the deed in question can have no evidentiary hearing on the question of gift or no gift to lot 9. The only instruction given by appellee to Evans was to convey the property to his wife for business reasons.
As to the repairs and improvements relied on to show that he had made no gift to his wife and she held the title as trustee, appellee testified that he built three rooms in 1937 and made other repairs in 1938. This was from four to five years after the date of the deed, which shows conclusively, under the rule above stated, that they cannot be considered to determine his intent or their joint intent at the date of the deed, since they did not exist or take place “antecedently to or contemporaneously with the conveyance, or so soon thereafter as to form a part of the transaction.” Nor can the payment of taxes and insurance help the appellee for the same reason. Moreover, his subsequent improvements, payment of taxes and insurance are all “referable to his natural desire to manage and care for his wife’s property” as said in Poole v. Oliver, supra. Also, as said in Chambers v. Michael, 71 Ark. 373, 74 S. W. 516, “There was evidence adduced at the hearing which tended to prove that the husband managed and improved the property as he would his own, but he-at the same time received and enjoyed the rents and profits free of charge. He evinced a desire of an affectionate husband to protect and improve the property of his wife, and thereby to maintain and provide for her. His conduct was referable to his duty to his wife.”
Appellee did not testify that he and his wife had any agreement that she should hold title as his trustee, either before or after its purchase, while she testified very positively that there was no such agreement,- but, on the contrary, that when he gave her the deed, he told her that he bought it for her for a home, “so no one could take it away from me, that the children would give no trouble, ’ ’ meaning so that his children by a former marriage could give no trouble. Several of her relatives testified to similar statements made to them by appellee. He denied making these statements.
So we conclude that appellee failed to overcome the presumption attendant upon the recital of the deed under the rules above stated, and that the learned trial court was in error in holding that he did. For other cases holding the evidence insufficient to establish a trust in favor of the husband, see Johnson v. Johnson, 115 Ark. 416, 171 S. W. 475; Wood v. Wood, 100 Ark. 370, 140 S. W. 275; Dillard v. Battle, 166 Ark. 241, 266 S. W. 80; and Collins v. Collins, 176 Ark. 12, 2 S. W. 2d 41.
The decree will be reversed, and the cause remanded with directions to enter a decree in her favor as to this property. | [
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Robert H. Dudley, Justice.
The primary issue in this divorce case is whether we continue to hold, as we did in Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986), that the language of our marital property statute does not include nonvested military retirement benefits. We again construe the statute in the same way. The chancellor did not follow the Durham case, and, on that point, we modify. We affirm on all other points of appeal.
The appellant husband, Major Harold J. Burns, received a commission in the United States Army in May 1977. He and appellee, Janet Burns, married in June 1980, separated in May 1991, and divorced in January 1992. The chancellor found that on the date of the divorce the appellant had been in the Army almost fifteen years, but that his military pension will not vest until he has served twenty years. The chancellor awarded the wife an interest in the nonvested retirement benefits that the husband may receive. The husband filed a post-trial motion citing Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986), and asking the chancellor to reconsider the issue of the nonvested retirement benefits. The wife responded with a brief that began: “If Defendant’s interpretation of Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986), is correct, it is bad law,” and continues, “Plaintiff welcomes a review of this Court’s ruling by an appellate court.” Apparently the chancellor was persuaded that a review of our decision should be had since he ruled that the husband “will” have retirement benefits and the “wife ... is entitled to her interest therein as a wife of the defendant and a dependent of a military service person, but this interest shall be only for that period of time that the parties were married during the defendant’s military service.” The husband appealed. The court of appeals certified the case to this court. Understandably, the husband’s first assignment of error is that the trial court erred in awarding the wife a part of the nonvested military retirement. The assignment of error is well taken.
In 1979, the General Assembly enacted the current marital property statute. “Marital property” means “all property acquired subsequent to marriage,” with certain enumerated exceptions not applicable to this case. Ark. Code Ann. § 9-12-315 (b) (Supp. 1991). Prior to our decision in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), we had not recognized pension benefits as marital property. However, in Day, we held that vested pension benefits acquired during a marriage are marital property and subject to division. In that case the husband’s interest was vested as it could not be diminished by his employer, and it was not dependent upon continued employment with that employer. The husband contributed 10% of his salary into a retirement program, and that contribution was matched by his employer. At the time of the divorce, the husband and the employer together had contributed $62,498.10 into the program, and the accumulated value of his interest was $95,425.03. The contributions were divided in two funds. One was invested in bonds and mortgages to provide guaranteed fixed annuities for participants in the plan, and the other was invested in stocks to provide a variable annuity. The amount of the annuities were based upon the accumulated value of the employees’ interest in each of the funds. At the time of the divorce the husband could stop making contributions and begin receiving his annuities. We construed this pension annuity benefit to be property under the statute. We reasoned that it was comparable to the husband taking part of his salary and depositing it in a savings account each month, or paying part of his salary on an annuity each month. It was property. We said that neither spouse could deprive the other of an interest in property simply by placing it temporarily beyond his or her control, such as by the purchase of an annuity.
Two years later, in Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986), we held that a nonvested right in military retirement did not constitute property as contemplated by the marital property act. We wrote:
The proof is that Durham will not be entitled to a pension until he has served for at least 20 years. Until then, unlike the professor in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), Major Durham has no vested right that must be recognized as marital property. He is employed by the United States; so Congress could at any time change his retirement plan or abolish it. Durham’s expectancy is more like the expectancy of termination pay that we considered in Lawyer v. Lawyer, 288 Ark. 128, 702 S.W.2d 790 (1986). The appellant relies upon the Uniformed Services Former Spouses’ Protection Act, 10 USCA § 1408 (1983), but that federal statute merely provides that the military authorities may treat a serviceman’s retirement pay as the property of him and his spouse in accordance with state law. No independent property right is created in the spouse by the federal act. In this instance no such right exists under Arkansas law.
Id. at 5, 708 S.W.2d at 619 (emphasis supplied.)
Nonvested military retirement benefits lack the following characteristics of property: cash surrender value, loan value, redemption value, lump sum value, and a value realizable after death. Baker v. Baker, 421 A.2d 998 (N.H. 1980).
The general rule in states with statutes similar to ours is set out in American Law Reports as follows:
Retirement or pension benefits that have not vested at all have been held explicitly or implicitly by the courts, in noncommunity property states having statutes providing for equitable division of the spouses’ property upon divorce, not to be property subject to division or direct consideration in making such equitable property divisions.
Charles C. Marvel, Annotation, Pension or Retirement Benefits as Subject to Award or Division by Court in Settlement of Property Rights Between Spouses, 94 A.L.R. 3d 176, § 13 (c) (1979).
In sum, our marital property statute requires that all property acquired subsequent to the marriage be divided, with certain exceptions not applicable. We have construed the statute to mean that nonvested military retirement benefits to which the serviceman or servicewoman may become entitled in the future are not property. This interpretation of the statute has now become a part of the statute itself, and we should not now reinterpret it. In E.C. Barton & Co. v. Neal, 263 Ark. 40, 43, 562 S.W.2d 294, 295 (1978), we explained: “That construction of the statute became as much a part of the statute as the words of the statute itself, and change is a matter that addresses itself to the General Assembly, not this court.” See also Gibson v. Gibson, 264 Ark. 418, 572 S.W.2d 146 (1978).
Accordingly, we decline to reverse our construction of the marital property statute and leave change, if any, in the word “property” to the General Assembly. Accordingly, we modify the trial court’s final order to provide that the wife is not entitled to an interest in whatever military pension the husband may be entitled to receive in the future.
The husband makes several other arguments, but none have merit. In the first of these he argues that the chancellor erred in giving the wife custody of the children. The wife’s expert witness, a clinical psychologist, testified that she had a stable personality, and another expert testified that the father had a stable personality. We have held that, even in a de novo review, we will not set aside a chancellor’s decision unless it is “clearly wrong.” Pinkston v. Pinkston, 278 Ark. 233, 644 S.W.2d 930 (1983). We cannot say the decision in this case is clearly wrong.
The husband’s main contention is that the chancellor’s decision is erroneous because the wife admitted having intercourse with another man on two occasions. Fault in the divorce is not necessarily the determining factor in awarding custody since an award of custody is neither a reward nor a punishment for a parent. Johnson v. Arledge, 258 Ark. 608, 527 S.W.2d 917 (1975). The children’s welfare is the controlling consideration. Id. Here, the wife candidly admitted the affair and stated that it was a regrettable mistake. She also stated that it was not conducted in front of the children, and that she has not been involved with anyone else. Under these facts we cannot say the chancellor erred. Accord, Hoing v. Hoing, 28 Ark. App. 340, 775 S.W.2d 81 (1989).
The husband contends the chancellor erred in ordering child support and alimony, as well as ordering him to make house payments. In the original decree the husband was ordered to pay $1,090.00 per month child support. He was also ordered to make house payments of $769.00 per month until the wife moved from the home, at which time the $769.00 monthly payment was to be converted to alimony for a period of twelve months. After the post-trial motion, the chancellor amended the order to make it clear that the husband was to make either the house payment or the alimony payment, but not both at the same time. The husband attached a copy of his earnings statement to his post-trial motion, and after examining it, the chancellor decreased the amount of alimony to $710.00, when it becomes payable, but increased the amount of child support to $1,150.00
The husband contends that the amount of child support is not in conformity with the child support chart. See In re: Guidelines for Child Support Enforcement, 301 Ark. 627, 784 S.W.2d 589 (1990). He argues that the amounts of pay that are designated on the earnings statement as BAS OFF and BAQPD do not constitute income since the guidelines provide that “income” for purposes of calculating child support shall be the same as income for federal income tax purposes. He contends that BAS OFF, or basic allowance for subsistence for officers, and BAQPD, or bachelor’s allowance for quarters with dependents, are not income under the Internal Revenue Code. The argument may have merit, but it is not one that we reach because the chancellor was not apprised of the issue, and we do not consider issues raised for the first time on appeal. Menard v. City of Carlisle, 309 Ark. 522, 834 S.W.2d 632 (1992).
The husband contends that he should not pay alimony because the wife’s adulterous relationship caused the divorce. Fault is not a factor in deciding whether to award alimony unless it relates to need or the ability to pay. Murphy v. Murphy, 302 Ark. 157, 787 S.W.2d 684 (1990). The fault of the wife in this case is not relevant to the decision to award alimony to her. The ability of a party to pay and the need of the other party are primary factors to be considered in awarding alimony. Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982). Here, the ability of the husband to pay a limited amount of alimony was demonstrated, and the chancellor ordered a reasonable amount. In addition, the chancellor relieved him of paying alimony while he was making the house payments. The need of the wife was shown. She has not worked during the time of the marriage and has no job skills. She does not have a college degree, but hopes to obtain one in order to be better able to support herself and the children. The twelve-month award of alimony will help her finish college. An award of alimony lies within the discretion of the chancellor and will not be reversed absent an abuse of that discretion. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987). Under the circumstances of this case, we cannot say the chancellor erred in awarding alimony for twelve months commencing when the wife moves out of the house. Since this is a de novo review, and since we have reduced the amount awarded as marital property, we have considered increasing the amount of alimony, but we do not do so because the amount awarded by the trial court, when coupled with the child support, relates well to the husband’s ability to pay.
The husband’s next argument involves some bank withdrawals and credit card advances amounting to about $3,000.00. The wife testified that she used credit card advances and funds she withdrew from a joint bank account to pay part of her and the children’s living expenses, car expenses, and her attorney’s fee during the pendency of this action. The husband argues that the chancellor erred in refusing to allow him a set-off for half of this amount. No citation of authority is given. Parties to a divorce case must often use marital funds to meet necessary expenses incurred during the pendency of the action, and a chancellor has discretion to determine when it is necessary to use these funds, whether the amount used was reasonable, whether fraud or overreaching occurred, and whether an offset is appropriate. The chancellor obviously thought the amount used in this case was reasonable and necessary under the circumstances and should not be offset. We cannot say the chancellor abused his discretion.
Finally, the husband argues that the chancellor abused his discretion in ordering him to pay part of the wife’s attorney’s fee in the final order of divorce. The argument is without merit. An award of an attorney’s fee is within the discretion of the trial court in a divorce case and will not be reversed absent an abuse of discretion See Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). The chancellor did not abuse his discretion in this case.
Affirmed as modified.
Hays and Brown, JJ., dissent. | [
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Butler, J.
H. M. Johnson, some time prior to- March 28, 1926, purchased a lot in El Dorado upon which was a .dwelling and which, after his purchase, he occupied with Ms father and mother and a sister. On July 30, 1926, he borrowed $7,000 from the appellee association, to secure which he conveyed by mortgage the said property, representing to' the mortgagee, and including in said mortgage the statement that he was an unmarried man. He agreed to pay to said association a stipulated sum each month, in default of which it was agreed that the mortgage might be foreclosed. Johnson failing to pay a number of said monthly installments, the association brought suit to foreclose the mortgage on May 28, 1929, alleging that since the execution of the mortgage Johnson had married; that Mrs. Jimmie Johnson (the mother of H. M. Johnson) claimed to have a deed to the property, and others who were named held mortgages executed by Mrs. Jimmie Johnson and the other defendants covering the property, and that still others claimed to have judgment liens of some nature against said property all of whom were made parties defendant, and summons was duly issued and served upon the defendants on* May 29, 1929.
The defendants, H. M. Johnson, T. E. Barton and the Exchange Bank & Trust Company filed their separate answers, but none of the other defendants, including Mrs. Ruth Johnson.(the wife of H. M. Johnson) and Mrs. Jimmie Johnson, his mother, filed any answer.
On November 4th, the case was called for trial and H. M. Johnson and the Exchange Bank & Trust Company appeared and confessed the justness of the claim of plaintiff and their willingness that judgment be entered against said H. M. Johnson in favor of the plaintiff association for the amount sued for, and that said judgment be decreed a first mortgage lien on the property, and that the plaintiff have a decree of foreclosure. Thereupon the court found that Mrs. Ruth Johnson, Mrs. Jimmie Johnson, and the other defendants, save those named above who made answer, had been duly summoned but had failed to appear to make defense, and rendered a judgment against them by default and against the defendants who had answered on their confession and decreed á foreclosure of the mortgage and a sale of the property. From this decree no appeal was prosecuted.
Sale was made on December 6, 1929, at which the appellee association became the purchaser and on December 16, 1929, the said sale was confirmed. On January 5, 1930', a writ of assistance was procured, and on the 4th of February following H. M. Johnson, Mrs. Ruth Johnson and Mrs. Jimmie Johnson filed their motion to quash the writ of assistance and for a bill of review, alleging that the decree was taker by default, that Mrs. Ruth Johnson at the time of the execution of the mortage was the wife of H. M. Johnson, that the property contained in the mortgage was their homestead, and that she did not join in the execution of the mortgage which rendered the same void, and asked that the decree of foreclosure he set aside and the bill of foreclosure be dismissed.
The appellee association responded controverting the allegations of the petition, and on a trial of the issues the petition to quash the writ of assistance and for bill of review was overruled, from which order and decree of November 4,1929, the petitioners (appellants) have prosecuted this appeal and filed a supersedeas bond February 14, 1930.
The appellants, insist that under $ ©542 of Crawford & Moses’ Digest, providing that no mortgage affecting the homestead of any married man shall be of any validity except for taxes and other liens and the purchase money, unless his wife joins in the execution of such instrument and acknowledges same, and, by virtue of our decisions construing said statute, the mortgage under which appellee claims was and is void, and that the decree of foreclosure and the order made denying the petition for bill of review should be reversed and set aside.
The law is well settled as contended for by the appellants, but the appellee takes the position that the appellants may not benefit thereby for a number of reasons: first, that appellants have failed to comply with rule 9 by not having furnished an abstract of the pleadings and testimony; second, that the proof fails to show the property involved to have been the homestead of H. M. Johnson; third, that H. M. Johnson and Mrs. Jimmie Johnson are estopped from asserting the invalidity of the mortgage; fourth, that whatever rights Mrs. Ruth Johnson might have had are precluded by a decree of divorce; and, fifth, that having been made parties to the foreclosure proceeding and duly summoned to answer and having failed to do so, and no errors appearing upon the face of the record, the decree of November 4,1929, as to them was res judicata.
I.
In the statement of the ease the declaration is made that the facts are not in dispute, and in each fact stated there is a reference to the transcript for its verification. The facts appear to be fairly well stated, and indeed the appellee makes no complaint of any misstatement, and we therefore conclude that there was a sufficient compliance with rule 9.
Our decision on points Nos. 3 and 4 is decisive of the questions involved, and therefore it will be unnecessary to discuss or decide the questions raised by points Nos. 2 and 5.
II.
On the trial of the issues joined on the petition for the quashing of the writ of assistance it was disclosed that, although H. M.. Johnson represented himself to be a single man on July 30, 1926, in fact he was not. On March 26, preceding, in Ruston, Louisiana, he married Miss or Mrs. Ruth Davis. Just when he began to live with her after the marriage or where is not shown, but on January 29, 1927, in a divorce proceeding instituted by Mrs. Ruth Johnson against H. M. Johnson, in which he failed to appear and make defense, she obtained a decree of divorce and on October 10, 1927, following, she and H. M. Johnson were remarried. On January 16, 1928, they jointly conveyed the property in controversy to appellant, Mrs. Jimmie Johnson, mother of TI. M. Johnson, by deed of general warranty, who, on December 17, 1928, to secure a loan of $4,200, executed a 'mortgage to the Exchange Bank & Trust Company in which she specifically stated that “this mortgage is subject and inferior to a certain mortgage executed on the 30th day of July, 1926, by H. M. Johnson, unmarried, to Commonwealth Building & Loan Association covering- the above land and of record in the office of the recorder of Union'County, Arkansas, in book No. 225, page No. 155.”
If, at the time of the conveyance by H. M. Johnson and Ruth Johnson, his wife, to Mrs. Jimmie Johnson, Mrs. Ruth Johnson had any interest in or right to the property as her homestead this right was abandoned by virtue of said conveyance to Mrs. Jimmie Johnson. Burel v. Baker, 89 Ark. 168, 116 S. W. 181 ; Gatlin v. Lafon, 95 Ark. 256, 129 S. W. 284 ; Bowen v. Black, 170 Ark. 237, 279 S. W. 782. Consequently, thereafter, and at the time of the filing of the petition aforesaid, she had no right or interest in the property, and was therefore not a proper party to the proceeding’s.
As a privy in estate is one who takes title to the property in question by purchase or by conveyance, Mrs. Jimmie Johnson, by reason of the conveyance to her by H. M. Johnson, became his privy in estate. 50 C. J. 407, sec. 3 ; Collum v. Hervey, 176 Ark. 714, 3 S. W. (2d) 993, and, while Mrs. Ruth Johnson, as the wife of H. M. Johnson, was not bound by the false representation of Johnson in the procurement of the loan and the execution of the mortgage to secure the same, Mrs. Jimmie Johnson, by reason of her privity in estate, was and is bound. Therefore, as H. M. Johnson, although the owner of a homestead, having conveyed it on the representation that he was single, would have been and is estopped to now claim otherwise, so also is Mrs. Jimmie Johnson because of her privity in estate. Mason v. Dierks Lumber Co., 94 Ark. 107, 125 S. W. 656, 26 L. R. A. N. S. 574, and cases cited. Mrs. Jimmie Johnson also expressly and falsely represented that H. M. Johnson was unmarried at the time of the execution of the mortgage to the appellee company by a recital in the mortgage made by her to the Exchange Bank & Trust Company, where a statement to that effect was reiterated.
Our conclusion on this proposition necessitates the affirmance of the decree of the court below, but on the fourth point raised we conclude that the rights of Mrs. Ruth Johnson to the homestead was divested by the de cree of divorce rendered January 29, 1927, for in that decree, which was offered in evidence in the case, there is a recital that on the representation of plaintiff’s attorney the matters of property right and alimony had been settled. The effect of this decree of divorce was to divest Mrs. Johnson of all dower and homestead rights so that then and thereafter H. M. Johnson was the owner as if he had always been a single person. See Taylor v. Taylor, 153 Ark. 206, 240 S. W. 6 ; Moore v. Warren, 160 Ark. 629-630, 255 S. W. 306 ; Oliver v. Halley, 170 Ark. 763, 281 S. W. 17.
The order and decree of the court below is correct, and it is therefore affirmed. | [
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Darrell Hickman, Justice.
Wallace Floyd confessed to burglarizing several homes in the Fort Smith area, claiming he was a drug addict and needed to steal to support his habit. He was convicted of two counts of burglary and three counts of theft. He was sentenced as an habitual criminal with two or more prior convictions. His total sentence imposed was fifty years imprisonment and a $30,000 fine. Floyd argues five reasons that his convictions should be overturned.
First, he argues his confession was involuntary because he was under the influence of drugs. He was arrested in Muskogee, Oklahoma, on a traffic offense on August 21, 1981. The Fort Smith authorities were called when certain evidence that had been-reported stolen was found in Floyd’s vehicle: A Pangburn High School ring, three savings bonds and some prescription medicine. Floyd had been under suspicion by the Fort Smith police for several residential burglaries. A warrant was issued out of Fort Smith August 24th, and Detective Mike Brooks went to Muskogee the next day. Floyd was arrested, waived extradition and Officer Brooks drove him back to Arkansas.
En route Brooks said he warned Floyd of his Miranda rights and Floyd acknowledged those rights in Arkansas before giving a full written statement involving himself in several burglaries, more than he was convicted of in this case.
Floyd’s argument of involuntariness is that he was addicted to cocaine, codeine and speed when he confessed. He said he had secreted a drug in his shoe and took it after he was in jail in Oklahoma. He said he told Brooks he was addicted and that that statement was a preface to his confession. He said he was “high” when he made the statement and, therefore, it was involuntary. He cites the case of Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1980), as authority and contends that his assertions were not contradicted at trial and must be accepted as true. Detective Brooks did offer contradicting testimony. He said although Floyd told him he was an addict, he observed no signs that Floyd was under the influence of drugs or suffering from withdrawal pain. He saw no needle marks, evidence of fever, chills or sweating, and Floyd did not ask for sweets or water. The trial court did not have to accept Floyd’s statement as true in view of this testimony. On review we consider the totality of the circumstances and the State must prove by a preponderance of the evidence that a statement made in custody was voluntary. State v. Branam, 275 Ark. 16, 627 S.W.2d 8 (1982). We so find in this case.
Floyd concedes that his second argument regarding the sufficiency of the evidence must fail if the statement is found admissible. We find the statement admissible so there is no need to address the second argument.
By a motion in limine, Floyd sought to prevent the State from using four prior convictions to impeach his credibility if he testified. His third argument is that the State simply sought to prove he was a “bad person,” and therefore prejudice the jury and insure conviction, rather than discredit Floyd’s veracity, citing Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). Alford is not controlling. Ark. Stat. Ann. § 28-1001, Rule 609 (a) (Repl. 1979) provides that a witness’ credibility can be attacked by proving certain prior convictions, and if the prior convictions are for false statements or dishonesty, the trial court does not determine whether the prejudicial effect of the prior convictions outweighs their probative value. Since Floyd’s convictions for burglary and theft were for crimes involving dishonesty, they were admissible without the weighing test. His convictions for delivery of a controlled substance and attempted escape were for crimes punishable by imprisonment in excess of one year and so the trial court was required to weigh their probative value against the possibility of prejudice. After argument of counsel the court ruled they could be used. We cannot say the court abused its discretion.
Fourth, it is argued that the trial court should have granted a mistrial when the prosecuting attorney said if the jury found that a residence was broken into, they must find Floyd guilty of burglary and not a lesser crime. The defense objected and the court admonished the jury to disregard the statements of the attorneys and to follow the court’s instructions as to the applicable law.
Floyd cannot complain for lack of a mistrial on appeal when none was requested. Fielder v. State, 206 Ark. 511, 176 S.W.2d 233 (1943). The judge admonished the jury without being asked to do so. If the admonishment was too weak Floyd should have complained to the trial court.
Fifth, Floyd argues that a statement made by the prosecutor in argument merited a mistrial. The prosecutor said:
Just one point. The testimony, I believe, was that the defendant was committing these burglaries to get money to buy drugs. If you do fine him and don’t send him to the pen I think we all know where the fine money will come from, so please don’t do that.
The trial court denied the motion for a mistrial but admonished the jury. It is well-settled that a prosecutor is allowed to argue any inference reasonably and legitimately deducible from the evidence. Gruzen v. State, 276 Ark. 149, 634 S.W.2d 92 (1982). Although similar, the remark is not comparable to the improper one in Mays v. State, 264 Ark. 353, 571 S.W.2d 429 (1978), where the prosecutor referred to the defendant as a dope pusher and there was not a shred of evidence to that effect. There was evidence that Floyd supported a drug habit by stealing.
In Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980), we said: “A mistrial is an extreme and drastic remedy which should be resorted to only when there has been an error so prejudicial that justice could not be served by continuing the trial.”
Affirmed.
Purtle, J., not participating. | [
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Robert L. Brown, Justice.
Appellant Willie King, Jr., was convicted of capital murder and sentenced to life without parole. On appeal, he makes three arguments, each of which concerns the denial of a fair trial. None of his arguments has merit, however, and we affirm.
King was convicted of the manual strangulation of a female victim who was last seen with the appellant on the evening of March 22, 1991. Three days later, her body was discovered in McKinney Park in El Dorado.
King, whose face, neck and chest exhibited numerous scratches, was arrested and charged with first-degree murder. That count was changed to capital murder on August 29, 1991, and the death penalty was requested. Several pretrial motions were filed, including a motion in limine to prevent the state from referring to any of the appellant’s prior criminal arrests and charges. The state agreed not to do that. Also, a motion was filed to direct a non-capital'sentence because no applicable aggravating circumstance existed at the time of the murder that warranted imposition of the death penalty. That motion was denied.
The trial in this cause occurred over five days. The jury was informed at the outset that this was a capital murder case and that death and life without parole were the appropriate punishments. A principal witness for the state was Sylvance Wright, who testified that he was in jail with King and that King told him that he had been with the victim on the night she was killed, that he had threatened to tell her boyfriend that she was seeing someone else if she did not have sex with him, and that he had killed her when she refused to have sex with him. Wright further testified that King said he did not intend to kill the victim but showed no remorse for having done so.
The jury returned a verdict of guilty and following the penalty phase assessed punishment of life without parole. The jury did find an aggravating circumstance—that the murder was perpetrated in a cruel and depraved manner — but refused to conclude that this warranted capital punishment. King filed a motion for a new trial on grounds that the jury was tainted due to consideration of the death penalty and, further, that he was not afforded a fair trial. That motion was denied, and he appeals from that order.
We begin by noting that the appellant’s abstract is flagrantly deficient and ordinarily would be grounds for Rule 9 sanctions. No rulings or orders of the circuit court are abstracted; nor is the instruction on aggravating circumstances that forms the basis for one of the issues on appeal or the colloquy between the prosecutor and Sylvance Wright that gives rise to King’s claim of prejudice and grounds for a mistrial. The appellant also fails to abstract other objections decided adversely to him as required by our Supreme Court Rule 11 (f) when a life sentence is involved. What salvages this appeal is the state’s supplemental abstract and the fact that this is a capital case with a sentence of life without parole which all but necessitates review. We observe, however, that the process is not well served when a case of this magnitude is presented in violation of the minimal requirements for abstracting required by our Rules.
Turning to the merits, King first contends that a death-qualified jury was inappropriate because the aggravating circumstance found by the jury was not in effect on the date of the murder and, thus, there was no basis for capital punishment. Hence, King argues, the circuit court erred in refusing to direct a sentence of life without parole.
King is correct that the aggravating circumstance referring to commission of the murder “in an especially heinous, atrocious, or cruel manner”, codified at Ark. Code Ann. § 5-4-604(8) (1987), was struck down by this court in 1988 for vagueness. Wilson v. State, 295 Ark. 682, 751 S.W.2d 734, modified 295 Ark. 692A, 752 S.W.2d 762 (1988). He is further correct that Act 683 of 1991, also codified at Ark. Code Ann. § 5-4-604(8) (Supp. 1991), was enacted after the date of the murder and provided as an aggravating circumstance murder perpetrated in an especially cruel and depraved manner. After Act 683 was in effect, the state amended the charge in this case from first-degree murder to capital murder. Accordingly, he urges that an ex post facto issue exists concerning the application of an aggravating circumstance which became effective after the murder date.
Nevertheless, King did not receive the death penalty, and we have held that an appellant has no standing to contest the constitutionality of the death penalty when that person receives a lesser sentence. See Ashley v. State, 310 Ark. 575, 840 S.W.2d 793 (1992); Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991); Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991). Those cases are analogous to the case at hand. The fact that the jury was death-qualified, that death was considered throughout the trial as a possible sentence, and that the jury was instructed on an aggravating circumstance that was not in effect at the time of the killing is of no moment when death is not the penalty assessed.
What the appellant is contending, in essence, is that the trial was tainted generally by the fact that death was considered when it should not have been because of an inapplicable aggravating circumstance. It is incumbent on the appellant, however, to demonstrate a prejudicial impact. Greer v. State, 310 Ark. 522, 837 S.W.2d 884 (1992). Here, the prejudice that may have resulted is difficult to gauge under such circumstances and places us squarely in the realm of speculation. We will not speculate on what prejudice, if any, occurred from the fact that the death penalty was mentioned and considered at the trial though not assessed. Without a more precise objection by King or a showing on his part as to how he was harmed, the circuit court had no basis to grant a new trial; nor do we have a foundation for reversal. See Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992).
Moreover, the United States Supreme Court and this court have held that the mere fact that a jury is death-qualified but a lesser sentence is imposed is not sufficient prejudice to warrant a reversal. Lockhart v. McCree, 476 U.S. 162 (1986); Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991). In sum, the circuit court did not err in denying a new trial on this point.
For his second issue, King maintains that the jury panel was expanded from some fifty-five members to almost double that size, and that this was not accomplished by giving five-days’ notice as contemplated under Ark. Code Ann. § 16-32-106(c)(l) (Supp. 1991). This lapse in procedure, under the theory propounded, denied the appellant an opportunity to evaluate the qualifications of the new members and may have eliminated a cross-section of the community under our holding in Kitchen v. State, 264 Ark. 579, 572 S.W.2d 839 (1978). This argument, too, is meritless.
The circuit court found that the jury that heard Kings’ case was selected from the original venire, which King had ample time to research. There is nothing before us to suggest that this finding was in error. Thus, no prejudice due to lack of research time or abbreviated notice could have resulted. We note additionally in this respect that § 16-32-106(c)(1) does not require five-days’ notice to jurors. It provides that when jurors are mailed a notice to serve, they are to confirm with the sheriff that it was received. If no confirmation is given, the sheriff follows up with a telephone call to the non-responsive panel member not later than five days before trial. In this instance, the additional jurors apparently were not contacted by mail, but by telephone which was a permissible alternative under the statute. There was no breach of statutory procedure under these circumstances.
Lastly, the appellant argues that the circuit court erred in refusing to grant a mistrial following this colloquy:
DEPUTY PROSECUTING ATTORNEY: Okay. And did the Defendant discuss with you, what he was in jail for?
WITNESS: Yes, ma’am.
DEPUTY PROSECUTING ATTORNEY: What did he tell you?
WITNESS: Well, we woke up one morning and right after breakfast and we started talking. And the conversation led to about women and he said about a lot of this and that and then he said, “Well, just like the case I just beat.” He said. . .
DEFENSE COUNSEL: Objection, Your Honor. May we approach?
Defense then objected, moved to strike, and moved for a mistrial on grounds that the response violated the order in limine forbidding comment on King’s prior arrests and charges. The circuit court denied the mistrial motion and then asked if defense counsel wanted an instruction to the jury. Defense counsel answered: “Yes. At the very least. Note my objection.” The prosecutor then asked if she should take the witness aside and remind the witness not to refer to King’s past conduct. Defense counsel responded: “No. I simply ask that the objection at least be sustained. I do move for a mistrial.”
The court then sustained the objection, denied the mistrial, and admonished the jury with the following:
Ladies and gentlemen of the jury, it’s the instruction of the Court that you disregard the last response of this witness, if you heard it. If you didn’t hear it, then I suppose there’s nothing for you to disregard. But, you are instructed that I have sustained an objection to that response. It should be disregarded and not considered at all. Put it out of your minds completely as you listen to the evidence and eventually as you deliberate with respect to this case. You may proceed.
We have held that a mistrial is a drastic remedy and one that lies within the discretion of the trial court. Green v. State, 310 Ark. 16, 832 S.W.2d 494 (1992);Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). Moreover, we have held that admonitions to the jury may be sufficient to cure statements by a witness, not elicited in bad faith, relating to other criminal activity of the accused. See, e.g., Strawhacker, v. State, 304 Ark. 726, 804 S.W.2d 720 (1991); Ronning v. State, 295 Ark. 228, 748 S.W.2d 633 (1988).
In the case before us, defense counsel was somewhat ambivalent about the relief he wanted. On the one hand, he requested a mistrial. But on the other, he wanted his objection sustained and was agreeable to an admonition to the jury “at the very least.” We have stated that a mistrial motion asserts that the error is beyond repair and cannot be corrected by any curative relief, while an objection to evidence does not carry with it the same gravity. Sullinger v. State, 310 Ark. 690, 840 S.W.2d 747 (1992). A curative instruction is an acknowledged means of curing error. Id. Defense counsel got part of the relief he requested.
There is no question but that the statement about “beating” a prior case had the potential to harm the appellant. And yet, the particulars of what was meant by that statement were left to the jurors’ imaginations. The circuit court told them in no uncertain terms to disregard the comment. We cannot say with any certainty that the admonition did not have the desired effect or that the circuit court abused its discretion in denying a mistrial.
The record has been examined in accordance with Ark. Sup. Ct. R. 11(f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.
Affirmed. | [
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Per Curiam.
In 1987 petitioner Bragg filed in circuit court a pro se petition to proceed pursuant to Criminal Procedure Rule 37. The petition was denied, and he subsequently filed a timely notice of appeal and designation of record but did not contact the court reporter about preparing the transcript on appeal. In 1988, after the time for lodging the record here had elapsed, petitioner filed in this court a petition for writ of mandamus in which he alleged that the lower court had not taken timely action to prepare the record on appeal. In an apparent reaction to the filing of the mandamus petition, the appeal record was prepared by the circuit court and forwarded to this court. Since the record was not tendered in a timely manner, petitioner could not lodge it in this court absent our granting a motion for rule on the clerk. In his motion, which is now before us, the petitioner relies primarily on the fact that there was a timely notice of appeal and that he relied on a fellow inmate for legal advice. There is no mention in the motion of petitioner’s responsibility to order the record from the court reporter.
Criminal Procedure Rule 36.9 provides that a notice of appeal “shall include either a certificate by the appealing party or his attorney that the transcript of the trial record has been ordered from the court reporter or a petition to obtain the record as a pauper if, for the purposes of the appeal, a transcript is deemed essential to resolve the issues on appeal.” The notice of appeal filed by petitioner neither said that he had contacted the court reporter directly nor said that he was asking to obtain the record as a pauper. The record does not contain an order declaring him indigent for postconviction purposes or for an appeal of the denial of postconviction relief.
While Rule 3 7.3 (b) affords a right to appointment of counsel for an appeal by an indigent, there is no requirement under the rule that the circuit clerk perfect the appeal for the petitioner. In fact, even on direct appeal of a judgment of conviction where the defendant is entitled to be informed of his right to appeal, there is no requirement that he be informed of every procedure to be followed. Petitioner Bragg said in the notice of appeal that he had “requested the circuit court to cause the transcript of the designated record on appeal deemed essential to be ordered,” but he does not say he contacted the court reporter nor is there any other evidence that he did so.
All litigants, including those who proceed pro se, must bear responsibility for conforming to the rules of procedure or demonstrating a good cause for not doing so. Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986); Perry v. State, 287 Ark. 384, 699 S.W.2d 739 (1985); Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983); see also Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986). Petitioner here offers no explanation for his failure to contact the court reporter. His reliance on a fellow inmate for legal advice does not excuse him from following proper procedure. Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987).
Motions denied.
Hickman and Purtle, JJ., dissent. | [
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John I. Purtle, Justice.
The trial court granted a summary judgment in favor of the appellee on the appellant’s complaint which accused the appellee of slander and interference with a business expectancy. The appellant’s four arguments for reversal are that: (1) the court erred in dismissing the defamation action because malice had been alleged, and if proven at trial, this would destroy the qualified privilege which the appellee enjoyed; (2) the court erred in failing to hold that malice must be presumed from the statements presented in the complaint; (3) the court erred in dismissing the claim for damages for interference with a contractual relation; and (4) the court erred in granting summary judgment because there were disputed issues of fact. We hold that the pleadings, affidavits, and other supporting documents did not state facts from which “malice” could be found. Therefore, the qualified immunity enjoyed by the appellee under the circumstances was not destroyed. The judgment by the trial court is affirmed.
The appellant and appellee, together with two other persons, were the directors of Le Metro Cafe Continental, Inc., an Arkansas corporation which operated a restaurant in the Union Station in Pine Bluff, Arkansas. The appellant was the chef and manager of the restaurant, and the appellee was the president of the corporation.
The corporation grew out of an arrangement whereby the appellant furnished some equipment as well as her expertise in the business, and the other persons furnished the capital for the venture. Things did not go well, and the business was losing money. During a board meeting, attended only by the board members and the corporation’s attorney, the appellee stated that the corporation’s accountant had informed him that the taxes had not been paid and that criminal charges were going to be filed. He further stated that the directors had given the appellant $ 100,000 a few weeks earlier and that she had mishandled these funds, not having paid the rent and the taxes with the money.
We first discuss the appellant’s last two arguments for reversal: interference with a contractual relation and the granting of a summary judgment. We agree with appellant’s statement that a successful claim for interference with a contractual relation must allege and prove that a third person either did not enter into or failed to continue a contractual relationship with the claimant as a result of the unauthorized conduct of the defendant. According to the allegations in the complaint, the only contractual relationship the appellant enjoyed was her employment with the now-defunct corporation. Both the appellant and appellee were directors of the corporation. (Appellee owned only one-fourth of the shares of the corporation; therefore he did not own controlling interest as argued by the appellant.) An action for tortious interference with a contractual relationship is based upon a defendant’s conduct toward a third party. There was no third party in the present case. See Mason v. Funderburk, 247 Ark. 521, 446 S.W.2d 543 (1969). For reasons stated above and below we hold that the trial court did not err in granting summary judgment in favor of the appellee.
For the purpose of considering the motion for summary judgment, the appellee concedes that his statements about appellant were false. According to Black’s Law Dictionary, Fifth Edition (1979), slander is the speaking of false and malicious words concerning another, whereby injury results to his reputation. Black’s defines publication of slander as “the act of making the defamatory matter known publicly, of disseminating it, or communicating it to one or more persons.” According to the Restatement of Torts, publication consists of communicating slanderous matter intentionally or by a negligent act to one other than the person defamed. Restatement of Torts, Second, § 577 (1977). Although the publication of defamatory matter, intentionally or through negligence, may give rise to a tort action, the defamatory statement may be protected by a qualified privilege.
The appellant concedes that communications between members of the board of directors of a corporation are qualifiedly privileged. She argues, however, that when malice is demonstrated, the publication loses the protection of this privilege. Therefore the question to be decided by this court is whether the qualified privilege enjoyed by the appellee was lost because of malice on his part.
The appellee argues that there must be publication before a slanderous statement is actionable. He contends that there was no publication in the present case.
The basis of liability for slander is the publication. Publication has been defined by Prosser as follows:
Since the interest protected is that of reputation, it is essential to tort liability for either libel or slander that the defamation be communicated to someone other than persons defamed. This element of communication is given the technical name of “publication,” but this does not mean that it must be printed or written; it may be oral, or conveyed by means of gestures, or the exhibition of a picture or statue.
There may be publication to any third person. It may be made to a member of the plaintiffs family, including his wife, or to the plaintiffs agent or employee. It may be made to the defendant’s own agent, employee or officer, even where the defendant is a corporation. The dictation of defamatory matter to a stenographer generally is regarded as sufficient publication, although it may be privileged. A few courts, with the tendency to confuse the question of publication with that of privilege, have held that it is not, regarding dictation as an indispensable method in modern business transactions, and therefore merely equivalent to the defendant’s own writing.
Prosser and Keeton on Torts, Fifth Edition (1984), § 113.
Alternatively to claiming there was no publication, the appellee (defendant below) argues that the statements were qualifiedly privileged. Historically, the common law recognized situations in which the interest of a party making such an utterance is sufficiently justified to allow for some mistakes. Admittedly finding it difficult to reduce such exceptions to a single statement, Professor Prosser quoted Baron Parke to the effect that the publication is privileged when it is “fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned.” See Dillard v. Felton, infra, and Restatement of Torts, Second, § 595.
In determining whether an utterance is actionable, it is necessary to examine the interests of the publisher and the recipients of the communication. A qualified or conditional privilege frequently arises when a common interest is involved. On the subject of common interest, Prosser has observed:
A conditional privilege is recognized in many cases where the publisher and the recipient have a common interest, and the communication is of a kind reasonably calculated to protect or further it. Frequently in such cases there is a legal, as well as a moral obligation to speak. This is most obvious, of course, in the case of those who have entered upon or are considering business dealings with one another, or where the parties are members of a group with a common pecuniary interest, as where officers, agents or employees of a business organization communicate with stockholders, or with other employees or branch offices about the affairs of the organization itself, or taxpayers discuss the management of public funds, or an association of property owners the desirability of a prospective purchaser, or creditors the affairs of a common debtor.
Prosser, § 115.
It is a condition and qualification of the privilege that the utterance must be exercised in a reasonable manner and for a proper purpose. Therefore, if the person making the statement steps outside the bounds of the privilege or abuses the privilege, the qualified privilege is lost. The immunity does not extend to a publication of irrelevant defamatory statements which have no relation to the interest entitled to protection. Hines v. Shumaker, 52 So. 705 (Miss. 1910). The qualified privilege is lost if the publication is not made for the purpose of furthering the common interest. Restatement of Torts, Second, § 603.
The arguments of both the appellant and appellee in this case largely concern the concept of “malice.” The authorities are quite clear that the qualified privilege is forfeited if it is abused; i.e., the privilege will be lost if the defendant publishes the defamatory statement with “malice.” In this sense the word “malice” means something more than the fictitious “legal malice” which is “implied” in order to impose strict liability in a case of unprivileged defamation. On the other hand, it may mean something less than “express malice,” or ill will. See Prosser, § 115. On this subject Prosser has commented:
[I]t is the better and perhaps more generally accepted view that the mere existence of such ill will does not necessarily defeat the privilege. If the privilege is otherwise established by the occasion and a proper purpose, the addition of the fact that the defendant feels indignation and resentment towards the plaintiff and enjoys defaming him will not always forfeit it. Perhaps the statement which best fits the decided cases is that the court will look to the primary motive or purpose by which the defendant apparently is inspired.
The appellant relies primarily on the case of Bohlinger v. Germania Life Insurance Company, 100 Ark. 477, 140 S.W. 257 (1911). There are many similarities between that case and the case before us. The basic communication at issue in Bohlinger was a letter from a retail credit company to an insurance company which had issued a life insurance policy on Bohlinger. In that case the insurance company did not contend that the statements concerning the plaintiff were not libelous, nor did it contend that the communication to its agents was not a publication. The issue was stated by Judge Frauenthal as follows:
The sole contention made by him why plaintiff is not entitled to recover is that the undisputed evidence shows that the statements in the report were made and sent on and in connection with an occasion which constituted it a privileged communication, for which an action for libel would not lie.
100 Ark. at 482.
The opinion stated that privileged communications are of two kinds: absolutely privileged and qualifiedly privileged; that an essential ingredient in either case is “malice”; and that such communications are not actionable if made upon such occasions and under such circumstances as to refute the legal inference of malice. Bohlinger continued:
A communication is held to be qualifiedly privileged when it is made in good faith upon any subject-matter in which the person making the communication has an interest or in reference to which he has a duty, and to a person having a corresponding interest or duty, although it contains matters which, without such privilege, would be actionable.
The Bohlinger opinion went on to state that the law will not infer malice on occasions when the utterances are appropriate, in the absence of evidence which goes beyond a showing that the statements were false and were published. In other words, the communications are privileged so long as they do not go beyond what the occasion allowed. At the heart of the Bohlinger ruling was the following statement:
When the facts adduced in evidence are uncontroverted, it becomes the duty of the court to determine whether or not the communication complained of is privileged. The great weight of authority supports the doctrine that the court must decide whether the writing which is claimed to be libelous is one within a qualified privilege. If the court decides that it is, then it will go further and determine whether or not there is any testimony adduced upon the trial which tends to prove malice. If, from the uncontroverted testimony, there is no malice shown, then there exists no cause of action, and it becomes the duty of the court to direct a verdict for the defendant.
100 Ark. at 483-484.
The appellee first argues that there was no publication in the present case. The argument is based in part upon the case of Farris v. Tvedten, 274 Ark. 185, 623 S.W.2d 205 (1981), where we stated: “In a defamation case a libelous or slanderous statement must be published or communicated to a third person to be actionable.” The case held that the fact that a libelous letter was dictated to a stenographer did not constitute publication; nor did the fact that the husband opened the letter addressed to his wife render the statement a publication. A somewhat stronger case relied upon by the appellee is that of Halsell v. Kimberly-Clark Corp., 683 F.2d 285 (8th Cir. 1982). The holding in Halsell was that until a slanderous statement is communicated outside the corporate sphere or internal organization there is no publication. The Eighth Circuit was applying Wisconsin law at the time.
The appellee also relies upon Ikani v. Bennet & Russell, 284 Ark. 409, 682 S.W.2d 747 (1985); and Dillard Department Stores, Inc. v. Felton, 276 Ark. 304, 634 S.W.2d 135 (1982). Both of these cases concerned qualified privilege or immunity. In Dillard we held that normally communications within a corporation are entitled to the privilege, but we also held that, although privileged, the immunity can be lost if the utterances go outside the bounds of reason and the purpose for the making of the statements. In Ikani we simply held that statements made by fellow employees were shielded from liability by the qualified privilege. We also considered slander and libel in the case of Little Rock Newspapers, Inc. v. Dodrill, 281 Ark. 25, 660 S.W.2d 933 (1983), where we reversed because of the failure to show damage to reputation. Since the action by Dodrill was based upon newspaper articles, publication had occurred. Moreover, qualified immunity was not an issue.
It is essential to tort liability for slander that the defamation be communicated to one other than the person slandered. When the defamation is communicated to another person, it is at that time published within the meaning of the law of slander. Publication and privilege have been either confused or used interchangeably by a number of jurisdictions. However, the great majority of the cases dealing with defamation are not concerned with publication but with privilege. The case before us involves a question of privilege or qualified immunity.
Although the Eighth Circuit Court of Appeals stated in Halsell v. Kimberly-Clark Corporation, supra, that statements made within the branches of the same corporation did not constitute publication, the court did so in reliance upon the law of the state of Wisconsin. The facts in the Halsell case fit perfectly well into the pattern of qualified immunity or privilege. The authorities are in general agreement that qualified privileges must be exercised in a reasonable and responsible manner and for the purpose of furthering the interest of the parties concerned. As previously stated, if the publication or utterance of the defamatory statement has no bearing on the public or private interest which is entitled to protection, then the privilege is lost. Hines v. Shumaker, supra.
The defamatory utterances in the present case were not exceptionally harsh, and the record does not demonstrate that they were motivated by spite or revenge. The statements were more in line with statements made by an investor who fears his investment is going down the drain. It was spoken to the members of the board of directors of the corporation. All of the parties present at the time obviously had a legitimate interest in the subject matter of the statements. It was clearly a privileged publication. Neither the allegations in the complaint nor other matters presented to the court, even if established at trial, would support a finding of malice.
In Bohlinger we held that when the facts adduced in evidence are uncontrover'ted it becomes the duty of the court to determine whether the communication is privileged. The opinion further held that if the court decided that the utterance was privileged there must be a decision whether any evidence had been presented to prove malice. The court stated: “If, from the uncontroverted testimony, there is no malice shown, then there exists no cause of action, and it becomes the duty of the court to direct a verdict for the defendant.” Bohlinger is controlling in the present case. Therefore, we hold that the trial court did not abuse its discretion in granting a summary judgment for the appellee.
Affirmed.
Although we upheld a directed verdict in that decision and are concerned with a summary judgment in the present case, the reasoning is the same. In the summary judgment cases we consider not only the affidavits and pleadings but all reasonable inferences deducible therefrom. In directed verdict cases it is not necessary to indulge in reasonable inferences from the pleadings and affidavits because the proof has been completed. | [
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Darrell Hickman, Justice.
This is the second appeal of this case. We ordered a new trial the first time because the defense was limited in its cross-examination of a witness. Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981).
James David Simpson, Jr. was again convicted, this time on two counts of capital murder and sentenced to life without parole on each count.
The evidence of Simpson’s guilt was overwhelming. The State produced an eyewitness to the double execution-style murders. Simpson and another man came to a trailer in North Little Rock on March 4, 1979, where Carl Gilmore, his girl friend, Cecelia Pigg Marks, and Larry Gilmore, Carl’s brother, lived. Carl, Larry, their brother Grealing, and Cecelia were all there. All four were shot by Simpson and the other man. Larry and Grealing Gilmore were killed; Carl survived as did Cecelia Pigg Marks, although she had been shot three times. She was the State’s main witness, and identified Simpson as one of the killers.
In this appeal three arguments are raised for reversal. Two of them may be disposed of quickly. The State’s proof of robbery, the underlying felony to the capital murders, is questioned. Marks said she saw one of the men counting money from a billfold and testified that “Larry or Carl one said that Grady [Grealing] didn’t have any more money.” This was sufficient evidence to support the robbery allegation. It is also argued that capital murder and first degree murder charges overlap and the instructions for the similar crimes allow a jury to arbitrarily choose between the two. We adhere to our prior decisions which hold that the statutes are constitutional. Simpson v. State, supra; Earl v. State, 272 Ark. 5, 612 S. W.2d 98 (1981); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980).
The other argument is that a policeman gave an unresponsive, prejudicial answer to a question during cross-examination. David Jones, a policeman from Memphis, who arrested Simpson, mentioned Simpson’s “rap sheet” during cross-examination by Simpson’s counsel. Policemen, prosecution and defense attorneys know that a “rap sheet” is a police document that lists the arrests and sometimes the convictions of an individual. See Shaddox v. State, 243 Ark. 55, 418 S.W.2d 780 (1967). A mistrial was requested and denied. The trial court declined to give an admonition finding that counsel had invited the answer.
While the mention of “rap sheet” is not per se prejudicial, its mention under certain circumstances has been deemed prejudicial error. For example, in Shaddox v. State, supra, during cross-examination of the defendant by the State, the defendant was questioned about his convictions and arrests. At the same time the prosecuting attorney was examining the defendant he was holding a sheet of paper and repeatedly referred to it. We observed, “The reference to the notes undoubtedly could influence members of the jury to feel that the State’s attorney was holding irrefutable evidence of previous convictions, and could well have been prejudicial.”
In a civil case, a plaintiff’s lawyer mentioned the defendant’s “rap sheet” during cross-examination of the defendant. After he asked the defendant whether he kept a room in his hotel available for prostitution, the lawyer said he had a “rap sheet” on the defendant. Shroeder v. Johnson, 234 Ark. 443, 352 S.W.2d 570 (1962). Again we ruled that the manner in which the reference was made was prejudicial.
The facts in this case are unlike those in Shaddox and Shroeder. Here the defendant’s lawyer was questioning a State’s witness on cross-examination. No reference at all was made as to what a rap sheet is or what it might contain. The transcript of the critical testimony reveals that neither the questions nor answers were models of directness or clarity. Jones had briefly testified that his office had received a telephone number from Arkansas authorities and it led to a residence occupied by Simpson. The residence was placed under surveillance. When two or three men helped Simpson load a U-Haul and Simpson tried to leave, he was arrested. The following exchange occurred in the cross-examination of Jones:
Q Now, when you use the word surveillance that is j ust kind of a technial term meaning we were watching the house because we were asked to watch the house. Isn’t it?
A Well, after we had this James David Simpson identified and found that he did have an alias of Little Dave, we did put the residence under surveillance until we could get warrants from Little Rock.
Q Little Dave?
A Yes, sir.
Q You mean that his friends call him Little Dave, also?
A That was the name that was on his rap sheet from the police department.
The appellant argues there were only three possible responsive answers to the last question: Yes, no, or I don’t know. Obviously the officer thought the question meant how he knew Simpson was called “Little Dave,” and he answered how he knew. The trial court found the answer was invited and that decision has to be discretionary under the circumstances. See Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980); and Ark. Stat. Ann. § 28-1001, Rule 611 (Repl. 1979).
It is suggested that the question which evoked the reference to the rap sheet was an effort by the defense to play-down or diminish the use of the word “alias” by the officer in one of his prior answers. No doubt the appellant hoped for a brief answer but he left the door open for the answer given. Watson v. State, 277 Ark. 197, 640 S.W.2d 447 (1982). Certainly the answer was not unquestionably unresponsive as the appellant argues.
We cannot say under the circumstances that the trial court clearly abused his discretion or that in view of the evidence of Simpson’s guilt, that the trial court erred. Harrington v. California, 395 U.S. 250 (1969); See Chapman v. California, 386 U.S. 18 (1967).
We find no other prejudicial errors in the record.
Affirmed. | [
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Darrell Hickman, Justice.
The appellants are the cities of Branch and Charleston and residents of the Charleston District of Franklin County. They filed suit in the Charleston District Chancery Court challenging an election held March 8, 1988, which approved a one cent county-wide sales tax.
The appellees moved to dismiss for lack of jurisdiction. The trial judge said the action should have been filed in the Ozark District and dismissed the case. We find the action is an election contest and, therefore, the chancery court is without jurisdiction.
We have settled the question of which court, circuit or chancery, has jurisdiction over election contests — it is circuit court.
In Rich v. Walker, 237 Ark. 586, 374 S.W.2d 476 (1964), and Catlett v. Republican Party of Arkansas, 242 Ark. 283, 413 S.W.2d 651 (1967), we held election contests must be filed in a law court. See also Alcoholic Beverage Control Board v. Munson, 287 Ark. 53, 696 S.W.2d 720 (1985); Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980). That part of Ark. Code Ann. § 26-74-309(c) (1987), which attempts to grant chancery court jurisdiction of an election contest, is unconstitutional.
The trial court reached the right result. So we affirm his decision, not reaching the question raised on appeal.
Affirmed. | [
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Dunaway, J.
Petitioners as members of Communications Workers of America, CIO, Division No. 6, an unincorporated labor organization, bave filed a petition in the Supreme Court of Arkansas for a Writ of Prohibition to the Pulaski Chancery Court, First Division. Petitioners pray that the court be prohibited and restrained from proceeding further in the case therein pending, Southwestern Bell Telephone Company v. Jack N. Brashears and Others (Chancery Case No. 90241), and that the temporary restraining order issued by said court on November 9, 1950, be dissolved.
The complete record of the proceedings in the Chancery Court has been filed with the Supreme Court. From the record it appears that no testimony was taken and that the temporary restraining order was issued without notice on the basis of the petition for injunction filed by the Southwestern Bell Telephone Company.
Since the Supreme Court is not in session, petitioners presented their petition to me asking for a temporary Writ of Prohibition under the provisions, of Art. VII, § 4, of the State Constitution, which authorizes the issuance of such writs by the several judges of the Supreme Court. In view of the fact that any decision on my part in this matter would be effective only until the next regular sitting of the Court, on Monday, November 20,1950,1 asked all the other Justices to hear the argument of both sides in regard to the petition.
Petitioners are members of the Communications Workers of America, CIO, Division No. 6 and at present are on strike against their employer, the Western Electric Company. It was conceded in the oral argument that petitioners and others are regularly employed by the Western Electric Company to install and maintain telephone equipment in the various offices of the Southwestern Bell Telephone Company. It was further conceded that both the Western Electric Company and the Southwestern Bell Telephone Company are controlled by a common parent corporation, the American Telephone & Telegraph Company.
In the petition for an injunction to restrain these striking employees of Western Electric Company from engaging in picketing around the Telephone Company offices in Little Rock and in the Rosedale community, it was alleged that as a result of said picketing employees of the Telephone Company, not involved in the strike, were refusing to cross the picket lines and that thereby telephone service would be disrupted. The basis for granting injunctive relief as set out in the petition filed in the Chancery Court, and as presented in the oral argument here, is contained in this allegation: “The above described picketing of plaintiff’s offices and garages is contrary to the public policy of the State of Arkansas and has endangered and, if allowed to continue, will further endanger the health, welfare and convenience of the public. ’ ’
Petitioners in seeking a Writ of Prohibition challenge the jurisdiction of the Chancery Court. This attack is made on two grounds: First, that the court had no jurisdiction of the petition for the reason that the Communications Workers of America, CIO, Division No. 6, is an unincorporated labor organization which cannot be sued in its association name as it is not a legal entity. Second, that the court has no jurisdiction of the subject matter covered by the complaint for the reason that the field of picketing for higher wages in business engaged in interstate commerce has been pre-empted by the Federal Labor-Management Relations Act of 1947 (Public Law 101, 80th Congress, 29 U. S. C. A. Supp. § 141, et seq.). It is petitioners’ contention that, in the absence of an allegation of some acts in connection with picketing over which the State has police power (either because of acts in violation of state statutes or common law), the remedy for an alleged unfair labor practice under the Federal Labor-Management Relations Act is before the National Labor Relations Board or in the Federal courts as prescribed in that Act.
There is no allegation in the petition filed by the Telephone Company in the Chancery Court of any violence, mass picketing, threats, or intimidation. It is con ceded that the picketing complained of was peaceful and, as already stated, the only basis for the injunction was that the picketing was resulting, or would result, in disruption of telephone service, and that this is contrary to the public policy of the State of Arkansas. It was conceded in the oral argument that the striking employees, when on the job, work in certain buildings of the Telephone Company, and that their supervisors operate from these buildings. There are no disputed questions of fact involved.
As already stated the complete record of the proceedings in the Chancery Court has been filed with the Clerk of the Supreme Court. After consultation of all the Justices of the Court, a majority of the Justices are of the opinion that the petition filed herein should be treated as an appeal from the interlocutory order of the Chancellor granting a temporary restraining order against all picketing. Ark. Stats. § 27-2102 provides that an appeal may be taken to the Supreme Court from an interlocutory order granting or refusing an injunction. That section further provides : ‘ ‘ The proceedings in other respects in the circuit or chancery court shall not be stayed during the pendency of such appeal unless otherwise ordered by the court, or by the Supreme Court, or a judge thereof.” ' In view of the opinion of a majority of the Justices that this proceeding should be treated as brought under that section of the statutes, the question is whether a stay should be granted as therein provided pending final determination of the appeal by the court.
The only ground stated in the petition below for the relief prayed and for the restraining order prayed thereon is that the picketing violates the public policy of this state. No statute nor decision of this court is cited as declaring this public policy. There is no allegation nor finding of violence, law violation or breaches of the peace. Another allegation in the petition in the court below was “The defendant union does not represent any of the employees of the plaintiff and no labor dispute exists or could exist between the plaintiff and the said defendant union or the members thereof . . . Ac cordingly, there is no offer,-concession or other act.which the plaintiff could make or do which would solve or in any other way affect any labor dispute to which the defendant union is a party. ’ ’
That members of labor unions may engage in peaceful picketing is elementary. In the recent case of Local No. 802 v. Asimos, 216 Ark. 694, 227 S. W. 2d 154, the authorities both of the Supreme Court of Arkansas and of the Supreme Court of the United States in regard to the right to picket were fully collected and reviewed. The public policy of this State, as found in the Constitution and decisions of the Supreme Court, may be summarized in the words of a headnote to that case. £<In the absence of proof showing that mass picketing is conducted and that acts of violence in connection with the picketing have occurred, labor unions may, on the grounds of free speech guaranteed by the 14th Amendment to the U. S. Constitution, engage in picketing. ’ ’
That case, it seems to me, is also determinative of the Telephone Companj^’s argument with regard to the non-existence of a labor dispute with its own employees. There, in seeking to uphold an injunction it was argued “Because no labor dispute existed between appellees'and their employees, . . . there was in progress no strike which might have justified peaceful picketing.” In answer to that contention Justice McFaddiN, speaking for the court, said: (at page 702 et seq.) “Appellees are correct in stating the fact that no labor dispute existed between the Jefferson Coffee Shop and its employees.
“Thus, the learned Chancellor was evidently of the opinion that until the employees went on strike, there could be no picketing; and that in the absence of a labor dispute, the Union had no right to establish a picket line.
“. . . we are under oath to obey the United States Constitution; and the interpretation of that document, as made by the United States Supreme .Court, is binding on us. That tribunal has decided that there may be picketing in the entire absence of a labor dis- ptite. (Citing and discussing Bakery and Pastry Drivers v. Wohl, 315 U. S. 769, 86 L. Ed. 1178, 62 S. Ct. 816, and Cafeteria Employees v. Angelos, 320 U. S. 293, 88 L. Ed. 58, 64 S. Ct. 126.)
“The Bakery case and the Cafeteria case, just discussed, are cases that rule here. In the case at bar there was an absence of violence, law violations, or breaches of the peace (growing directly out of the picketing); there was no mass picketing; the signs carried by the pickets were not libelous or false; there is no proof that there was a demand, for a closed-shop. In short, there is no fact present in the case at bar to distinguish it from the Bakery case and the Cafeteria case, just discussed, so ,we must hold that there can be peaceful picketing even in the absence of a labor dispute relating to persons presently employed; and we must dissolve in part the injunction granted by the Chancery Court.”
Lest this memorandum be misunderstood,' I should add that this case does not involve the question of whether a secondary boycott is legal under Aiicansas law. A secondary boycott occurs when striking employees, in addition to picketing the premises of their own employer, also establish picket lines around the premises of others not so directly interested in the labor dispute, such as customers to whom the primary employer sells or manufacturers from whom he buys. This question is not now presented, for in the oral argument it was admitted by counsel for the Telephone Company that no contention of the existence of a secondary boycott is being made.
It may be that the right to picket as presently interpreted should be circumscribed in cases where widespread public inconvenience might result, as in the case of public utilities, but that is a matter for the legislative branch of government and not the courts to determine.
Constitutionality of Ark. Stats. § 27-2102 was upheld in the case of Sager v. Hibbard, 203 Ark. 672, 158 S. W. 2d 922. There in discussing the reasons for the enactment of this statxxte, Chief Justice GteipeiN Smith, speaking for the court, said: (at page 676) “Modern business, commerce, and even professions, are such that serious consequences may attend delay in determining whether an order mentioned in Act 355 has been improvidently granted or denied. It was the legislative intent to relieve againstjpossible error.”
The effects of an improperly granted injunction against a labor union can be just as important to that economic group as to'those mentioned in the Sager case. The Telephone Company argues that since it has filed a thousand dollar bond petitioners are adequately protected against damage in the event the court ultimately determines that an injunction should not have been granted. Aside from the economic consequences to these petitioners of being wrongfully restrained from engaging in peaceful picketing, which would hardly be susceptible of proof, deprivation of their constitutional right of free speech cannot be compensated for in dollars and cents.
The Clerk of this court is therefore directed to issue an order staying any further proceedings under the temporary restraining order of the Pulaski Chancery Court in so far as it applies to picketing around any buildings of the Telephone Company where the petitioners regularly engage in work, until further orders of the Supreme Court. This of course is without prejudice to the right of the Southwestern Bell Telephone Company to petition the Chancery Court for appropriate injunctive relief if the picketing engaged in violates the law of this State as set forth in Local No. 802 v. Asimos, supra.
The question of whether federal or state jurisdiction is involved in the circumstances of this case can be decided when the case is submitted to the court on appeal. I therefore express no opinion on this matter and will not discuss the authorities cited by counsel.
Since the Chief Justice and Justice McF addin are filing separate memoranda, noting their disagreement with this order, 1 might add that Justices Holt, Millwee, George Rose Smith and Leflar agree with the views herein expressed.
Griffin Smith, C. J.,
expressing Ms own views. The controversy was presented to a Justice of this Court on petition for a temporary writ of prohibition. The J istice addressed requested other members to sit with him in an advisory capacity during presentation of the case by oral argument. The general rule is that something the trial court has already done cannot be tested by prohibition. But the Justice who was asked to consider the petition concluded it should be treated as an appeal and that the Chancellor’s injunction should be stayed under authority of Sec. 27-2102 Ark. Stats. On the face of the transaction there would follow the conclusion that the relief given is good until the Court convenes November 20.
But in 'deciding how the petition should be treated and in discussions relating to the stay, four other Justices agreed with the procedure; so we have the anomaly of an appeal wherein the merits of highly controversial issues will relate back to the action of a single Judge acting when the Court was not in session, but relying upon assurances of associates who have advised that the petition be transmuted to a classification under which the injunction can be stayed.
The so-called labor dispute (as a consequence of which Western Electric employees picketed Southwestern Bell) does not involve a disagreement between the telephone company and its own employees. The petition filed with Judge Dodge contains the sworn statement that “there is no offer, concession, or act which (Southwestern) could make or do which would solve or in any way affect any labor dispute to which the defendant union is a party. ’ ’ This paragraph was called to the attention of attorneys for the prohibition petitioners during oral argument, and the question was asked whether it was true. No answer has yet been given.
The effect of what we are doing is to decide the litigation-on its merits, and — in the absence of any evidence • — to hold that Western Electric strikers have the right to picket Southwestern. In the present state of the record not a member of this Court knows, or can know, what the facts are upon which Western workers predicate their claim to the right of interference with Southwestern property and personnel. It is not disputed that Western Electric and Southwestern Bell are distinct corporations. Whether the control of Western by Southwestern, or whether Southwestern’s business influence precipitated the strike — these are matters not yet developed. It is admitted that Southwestern buys mechanical equipment from Western, and that Western workers make the installations. It is also conceded that no Western employee is now working in or on Southwestern property.
My disagreement with the majority goes to procedural rules alone. Primarily it is grounded upon the belief that the judicial process should not be accelerated at the cost of deliberation when facts essential to a fair determination may be procured. In treating the petition for prohibition as an appeal we have deprived the losing party of its right to show (when the Chancellor would if not interfered with hear the cause on motion to make the injunction permanent) what the actual facts relating to the dispute are. This is not a service to capital, labor, the judicial process, or the public.
I would deny the writ, but direct an expeditious hearing on the motion to make permanent, then reach a conclusion in the light of record information.
Per Curiam.
On November 17,1950, by order of one of the justices of this court, an appeal was granted in this cause and a temporary stay issued against further proceedings in the Pulaski Chancery Court under a temporary restraining order theretofore issued by that court.
This court at its next regular sitting, on November 20, 1950, continued this temporary stay in effect until further orders of the court. By this action, the memorandum opinion of Justice Dunaway was adopted as the opinion of the court, the Chief Justice and Justice McFaddiN dissenting.
It is now made to appear to the court that the temporary restraining order of the Pulaski Chancery Court appealed from herein was dissolved and the petition for injunction dismissed on motion of the petitioner below, Southwestern Bell Telephone Company. Appellee, Southwestern Bell Telephone Company, now prays that the memorandum opinion of November 17,1950, be withdrawn and the appeal be dismissed since the questions raised by the appeal are now moot.
It is the opinion of the court that the appeal is now moot, and the same is hereby dismissed. The memorandum opinion rendered in granting the temporary relief sought in this court, however, will not be withdrawn, and stands as the opinion of the court with respect to the relief heretofore granted.
The dismissal of the appeal is without prejudice to any proceedings which may be had under the bond made in the Pulaski Chancery Court in connection with the granting of the temporarv restraining order of November 9,1950. | [
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PER CURIAM.
The question is -whether this Court has power to direct retrial of a cause on petition of those who would have appealed had they been able to file the record within the time prescribed by law.
On January 17, 1950, Alice Criner and others filed with the Clerk of this Court a certified copy of a Ouachita Chancery Court decree in an action they had brought against John H. Criner and a list of named defendants. The subject-matter was involved in a decision of this Court rendered January 26, 1948, Criner v. Ritchie, 212 Ark. 815, 208 S. W. 2d 447. In the present action there were 93 plaintiffs, all claiming to be heirs of Reason and Susan Criner, who were mentioned in the cited case.
When the decree was filed there was a petition for certiorari, asking that the complete record be brought up. The decree was dated July 28, 1949, but not filed here until five months and twenty days later. In the meantime (January 8, 1950) the official Court Reporter died. He had taken in shorthand all of the testimony: This testimony filled seventeen notebooks with the pages written on each side. A few of the books had been transcribed.
This incomplete bill of exceptions — perhaps less than a third of the entire testimony — was available to the trial Court, and to this Court. Efforts were made to ascertain if some other reporter, or an expert in shorthand writ-' ing could decipher the notes, using the transcribed portion as a guide to characters and arbitrary designations the official Reporter — a man of long experience — had adopted. The result of these inquiries was unsatisfactory, hence there was no practicable method of receiving the appeal through extension of time within our rules relating to certiorari.
The only alternative would be to direct a retrial of the cause. This, of course, would result in some advantage and some disadvantage to each side on the single issue of retrial because the testimony of particular witnesses could be anticipated and preparation made for rebuttal. This, however, would not control our disposition of the motion if all other conditions suggested the justice of a different course, and if precedent and prac tice were not involved, and power to make the order were not highly questionable.
A majority of the Court thinks that the right to have the bill of exceptions approved was lost before the Reporter died.
The trial was in First Division of Ouachita Chancery Court. Terms begin the second Monday in March, July, and November. The decree was rendered during the July term. Time for appeal would have expired January 28, 1950, but for the filing of the decree and the petition for certiorari heretofore mentioned. Act 345 of 1941 (patterned after Act 202 of 1927 for the Sixth District) regulates Chancery practice in the First Division of the Seventh District. In the 1927 (Sixth District) measure, it is provided that “The original copy of said transcribed notes when filed with the clerk of the court, as herein directed, shall be treated as depositions in said cause as fully and completely as if filed within the term of the court. ’ ’
This provision is omitted from the 1941 enactment, and its non-inclusion has the effect, generally, of depriving the trial court of power to approve a bill of exceptions at a subsequent term. The situation would be different if the decree by its terms authorized the additional time, or if the Court had a standing order tolling the time. See Johnson v. U. S. Gypsum Co., ante, p. 264, 229 S. W. 2d 671; Elvins v. Morrow, 204 Ark. 456, 162 S. W. 2d 892.
In the instant case there was no standing order, and, as has been pointed out, the decree does not give time. For the reasons expressed a majority of the Court are of opinion that time for filing the bill of exceptions expired before the Reporter died. The motion is overruled.
Since there is no record before us, aside from the decree, and there being no apparent error therein, the appeal is dismissed.
The same order applies in Case No. 9276—Chas. M. Martin v. H. A. Davis et al. | [
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David Newbern, Justice.
This criminal appeal arises from the conviction, upon a jury verdict, and sentence to life imprisonment of the appellant, Jerry Hayes. Hayes was charged with the murder of Patricia Taunt. He questions the sufficiency of the evidence to sustain the conviction and argues a statement he made to the police should have been suppressed. We decline to consider the sufficiency argument because of Hayes’s failure to move for a directed verdict, and we find no basis for suppressing the statement.
An unidentified person reported that Ms. Taunt was missing and that the police should “look into” her disappearance. Detective Stafford visited Ms. Taunt’s home where he met Hayes and the victim’s daughter. The daughter said the victim was not home and she didn’t know where she was but that some of her clothing and jewelry were missing. The daughter said the victim had vanished a week earlier and she assumed that she was on the road with her truck-driver husband. Hayes was taken in for questioning and released an hour later.
Barry Mattinson had worked with Hayes for three months at a Pizza Hut restaurant, and they had become friends. Mattinson was interviewed by the police and made a statement implicating Hayes in the murder. In his testimony at Hayes’s trial Mattinson said he received a call from Hayes at the restaurant asking for help. Mattinson said he told Hayes he would not help him kill the victim, but then Hayes said he had just killed her and needed help to hide the body. Mattinsons said Hayes had, in the presence of other witnesses, threatened to kill the victim on several occasions. Brian Lowery, a former Pizza Hut manager, also testified of hearing Hayes threaten to kill the victim.
Mattinson said he agreed to help dispose of the body because Hayes threatened to kill the victim’s son and any police officer with whom he came into contact. He also said he was a homosexual and in love with Hayes and became afraid of Hayes while they were in the process of trying to hide the body.
When Mattinson arrived at the house where Hayes and Ms. Taunt lived, Hayes was wearing bloody pants and seemed agitated. Mattinson saw a body wrapped in bloody blankets. Hayes placed the body in Mattinson’s car. Forensic examination of the car later revealed bloodstains in the rear passenger floorboard. They drove to Heber Springs, hid the body under some brush, and returned later to bury it.
Mattinson led the police to the grave. Hayes was arrested shortly thereafter and interrogated by two officers who testified Hayes signed a statement acknowledging he had been advised of his rights, but he refused to sign a form stating he waived his rights. The officers said, however, that Hayes agreed to talk with them despite his unwillingness to sign the waiver. According to the officers, when Hayes was informed that Mattinson had told them the story Hayes made statements they felt were incriminating.
1. Sufficiency of the evidence
Arkansas R. Crim. P. 36.21(b) provides:
Failure to Question the Sufficiency of the Evidence. When there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and at the close of the case because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.
Hayes did not move for a directed verdict at the conclusion of the evidence presented by the prosecution. Nor did he move for a directed verdict at the close of the case. He did, however, move at the conclusion of a discussion of instructions to be presented to the jury, and just before the jury was to return to the courtroom for closing arguments, to “dismiss for lack of evidence.”
Even if we were to equate the dismissal motion with one for a directed verdict, we would not consider it because of failure to make the motion at the conclusion of the prosecution’s case. We have no case in which we have considered the issue whether a motion for directed verdict at the conclusion of the trial is sufficient to warrant consideration of sufficiency of the evidence when no such motion was made at the close of the prosecution’s case. We observe, however, that the Rule is stated in the conjunctive, clearly requiring the motion to be made in both instances, as we said in cases such as Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992), and Dewitt v. State, 306 Ark. 559, 815 S.W.2d 942 (1991).
The failure to make the motion at the conclusion of the prosecution’s case and at the close of the case and the motion to “dismiss,” made apparently as an afterthought, are indications that, apparently with good reason, Hayes was not serious about questioning the sufficiency of the evidence to go to the jury. We decline to consider the point.
2. Suppression
At the suppression hearing Officer Durham testified Hayes was arrested at 5:30 a.m., September 11, 1991, and advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 467 (1966). An interview took place after Hayes had, according to Officer Stafford, acknowledged being informed of his rights, refused to sign the waiver, but agreed to talk. The interview was not recorded. Officers Durham and Oberle testified that Hayes was coherent and had no problem understanding what was taking place. They also testified that Hayes did not request an attorney until the end of the interview, and after he did so no further questions were asked.
Oberle began the interview and informed Hayes that Barry Mattinson had made a statement identifying Hayes as the murderer and had led them to the body. At one point, Oberle asked Hayes if he wanted to tell his side of the story, to which Hayes replied, “Why should I? Barry already told you everything.” Later Hayes said, “I knew Barry would end up telling. I saw Barry get picked up down the street earlier, and I knew y’all would be coming to get me. That’s why I was clothed and my shoes on .... I was sitting in the chair waiting and had fallen asleep.”
Other statements were alleged to have been made by Hayes, but the Court concluded they were actually non-answers to questions from which the officers made assumptions. Only the statements contained in the testimony quoted were admitted in evidence.
Hayes denies making any statements and asserts he requested an attorney at the beginning of the interview. He first argues the statements should have been suppressed because Mattinson testified at trial that the officers had lied to him (Mattinson) to obtain information. No such argument was made to the Trial Court, and as this objection is being raised for the first time on appeal it need not be considered. Smith v. State, 310 Ark. 30, 832 S.W.2d 497 (1992); St. Clair v. State, 301 Ark. 223, 783 S.W.2d 835 (1990).
Hayes argues that the fact that he was arrested at 5:30 a.m. and was suffering from sleep deprivation justified suppression. Again, he made no such argument at the trial, and it will not be considered.
Finally Hayes contends he did not make the statements attributed to him by the officers. He argues his refusal to sign the waiver form indicates he did not waive his rights and that as he requested an attorney the officers should not have continued to question him. To the extent these arguments raise issues of credibility, we defer to the trier of fact, in this instance the Trial Court, who was in the better position to assess their truthfulness. Atkins v. State, 310 Ark. 295, 836 S.W.2d 367 (1992); Brown v. State, 309 Ark. 503, 832 S.W.2d 217 (1992).
In reviewing the denial of a motion to suppress we make an independent examination based upon the totality of the circumstances and reverse only if the decision of the Trial Court was clearly against the preponderance of the evidence.. Watson v. State, 308 Ark. 643, 826 S.W.2d 281 (1992).
No argument was advanced or evidence presented which would support the conclusion that Hayes lacked the capacity to understand the warnings given him or the consequences of his speaking to the officers. Hayes was 26 years old at the time of his omnibus hearing which took place approximately 9 months after his interrogation. Hayes testified he had some college education, and he said no threats or promises were made. He also said there was no lengthy wait prior to his interrogation. Given the totality of the circumstances we conclude Hayes’s implicit waiver of his right to remain silent was with knowledge of the consequences.
The waiver was also voluntary. In making his ruling the Court made a threshold inquiry whether there is any requirement that prior to making a statement an accused must sign a written waiver. Hayes’s counsel conceded there is no such requirement, and we so held in Fleming v. State, 284 Ark. 307, 681 S. W.2d 390 (1984).
The totality of the circumstances approach in these situations involves two major components; first, the conduct of the officers and second, the vulnerability of the accused. State v. Graham, 277 Ark. 465, 642 S.W.2d 880 (1982). Two officers said Hayes waived his right and made the incriminating statements. Hayes denies it but acknowledges the lack of coercive circumstances. As noted above, we decline to reverse the Trial Court’s ruling which was obviously based on belief of the officers’ testimony as opposed to that of Hayes with respect to the implied waiver.
3. Rule 11
The record has been examined in accordance with Ark. Sup. Ct. R. 11(f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.
Affirmed. | [
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Steele Hays, Justice.
James and Daisy Heffner filed suit on May 21,1981 against Dave Widsom Harrod, a lawyer, alleging they had sold $3,546.79 worth of carpet to Harrod’s client, Myers Munnerlyn, a house builder; that when Munnerlyn’s check in payment was returned because of insufficient funds they filed a materialman’s lien; that Harrod wrote to the Heffners on March 29,1977 to say that if they would release their lien he would, as their agent, obtain the money owed them by Munnerlyn from the prospective purchaser; that they relied on written and oral representations from Harrod and released their liens, but were never paid. They alleged that Harrod intentionally deceived them, that he breached a fiduciary duty as a lawyer and agent by collecting the money and refusing to account; that he was guilty of professional misconduct and negligence, of breach of oral and written contracts, and of conversion. They asked for compensatory and punitive damages.
Harrod pleaded the statute of limitations as a defense and moved for summary judgment, which the court granted with respect to any cause of action to which a one year, two year or three year statute of limitations would apply, finding that the Heffners stopped relying on the alleged representations of Harrod as a matter of law prior to May 25,1978 when they retained a lawyer to recover the money. The court denied summary judgment with respect to the claim of breach of a written contract and held the Heffners would be permitted to introduce evidence relevant to all claims raised by their pleadings, that the case would be submitted to the jury on special interrogatories to enable the court to determine whether the case sounded in contract or in tort and if in tort, the Heffners would be barred from the recovery of damages.
The Heffners have raised a number of issues on appeal and argue that Harrod is estopped from asserting the statute of limitations as a defense. However, we do not reach the merits of these issues, as we find the appeal to be premature for the lack of a final order, a jurisdictional requirement which we are obliged to raise even when the parties do not. Arkansas Savings and Loan Association v. Corning Savings and Loan Association, 252 Ark. 264, 478 S.W.2d 431 (1972), McConnell v. Sadie, 248 Ark. 1182, 455 S.W.2d 880 (1970).
Here, the court did not dismiss the parties from the court, nor discharge them from the action, nor conclude their rights to the subject matter in controversy. It did, acting on the motion for summary judgment, make findings of fact and conclusions of law which narrowed the issues raised by the amended complaint, but whether error occurred is subject to later review, when and if the case is appealed. The trial court did not grant summary judgment in the whole case, but simply determined what it thought to be the controverted issues and continued the case for a jury trial. This procedure is contemplated by ARCP Rule 56 (d) and is not the equivalent of a final determination of the case so as to constitute an appealable order.
We have said frequently that in order for a judgment to be appealable it must dismiss the parties from the court, discharge them from the action or conclude their rights to the subject matter in controversy. Nolan Lumber Co. v. Manning, 241 Ark. 422, 407 S.W.2d 937 (1966), Piercy v. Baldwin, 205 Ark. 413, 168 S.W.2d 1110 (1943). This attempted appeal illustrates the reason for the rule that an order must be final to be appealable: if this appeal were allowed and these preliminary issues reviewed, the case would necessarily be remanded for trial and if subsequent errors occurred, or were alleged, the case could be appealed a second time, resulting in two appeals where one would suffice. See Rule 2, Arkansas Rules of Appellate Procedure.
In McConnell v. Sadie, supra, we said:
Cases cannot be tried by piecemeal, and one can not delay the final adjudication of a cause by appealing from the separate orders of the court as the cause progresses. When a final order or judgment has been entered in the court below determining the relative rights and liabilities of the respective parties, an appeal may be taken, but not before. McPherson v. Consolidated Casualty Co., 105 Ark. 324, 151 S.W. 283 (1912).
In Arkansas Savings and Loan Association v. Corning Savings and Loan Association, supra, we said:
We have also said that an appeal will not lie from an interlocutory order relating only to some question of law or matter of practice in the course of the proceeding leaving something remaining to be done by some court having jurisdiction to entertain the same and proceed further therewith. Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967).
We take this opportunity to point out that the trial judge may well have intended his order to be tentative rather than final, as he made express provision for the introduction of evidence in trial “relevant to all claims for relief stated by the plaintiffs”, which we think is consistent with the wording of ARCP Rule 54 (b), which reads in part:
(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third party claim, . . . the court may direct the entry of a final judgment as to one or more but fewer than all of the claims ... 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 ... shall not terminate the action as to any of the claims .. .and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties, (our italics).
Note 2 of the Reporter’s Notes to Rule 54, provides:
2. Under FRCP 54 (b), the practice is to wait until all claims have been finally determined before entering judgment on any particular claim. The purpose is to prevent piecemeal appeal while portions of the litigation remain unresolved. There may be situations, however, where a particular claim should be finally determined before the entire case is concluded. Accordingly, the trial court may direct the entry of a final judgment on fewer than all claims involved upon the express determination that there is no good reason for delay. Thus, a party will always know whether a judgment in a Rule 54 (b) situation is ripe for appeal. Unless this determination has been made by the trial court, there can be no appeal. RePass v. Freeland, 357 F.2d 801 (C.C.A. 3rd, 1966); Oak Construction Co. v. Huron Cement Co., 475 F.2d 1220 (C.C.A. 6th, 1973).
The trial court made no such finding and the order is not final and not appealable; it is subject to revision at any time prior to final judgment.
Appeal dismissed.
Purtle, J., dissents. | [
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Jack Holt, Jr., Chief Justice.
The appellant, Harvey Plotts, was convicted of possession of marijuana with intent to deliver and sentenced to ten years imprisonment and a fine of $25,000.00. For reversal he argues that the trial court erred in (1) refusing to grant a directed verdict in that there is insufficient evidence of guilt and (2) refusing to give the jury an instruction on the lesser included offense of simple possession thereby creating an unconstitutional mandatory presumption. We find no error and affirm the judgment of the trial court.
At approximately 11:20 p.m. on September 24,1987, Officer David Hathcoat, while patrolling on 1-30 near Arkadelphia, spotted an eastbound Datsun “280ZX” weaving from lane to lane. After following the car for a short distance, the officer pulled the car over. After determining that Vega, the driver, had no driver’s license, the officer informed him that he was under arrest for reckless driving and driving without a license. As the officer was putting the handcuffs on Vega, Vega dropped an aluminum foil package with syringes sticking out of it onto the ground. The officer then called for assistance.
Immediately thereafter, the officer walked over to the passenger side of the car to question appellant Plotts. As he approached Plotts, the officer (with the aid of a flashlight) spotted a clothes bag in the backseat which appeared to be full and thick but had no hangers sticking out of the top. He also noticed that there was a plastic bag containing green vegetable material protruding out of the clothes bag. After determining that Plotts owned the car, the officer asked him if he could search it. According to the officer, Plotts replied, “You can search the vehicle, any part of the vehicle you want to. If there are any drugs in there, I want them out.”
After the deputy arrived, Officer Hathcoat took the clothes bag out of the back seat, placed it on the hood of the car, and unzipped the bag. Therein he found seven bags containing a total of 5 lbs., 12.7 ounces of marijuana. The officer immediately read Plotts his rights and arrested him.
Testimony and physical evidence supporting this scenario were the State’s case. At the close of the State’s presentation, Plotts moved for a directed verdict on the grounds that the State had not proved beyond a reasonable doubt that he possessed marijuana with intent to deliver. The court denied the motion, and the defense rested. The jury then found Plotts guilty.
I. SUFFICIENCY OF THE EVIDENCE.
Plotts alleges that there is insufficientevidence to support the jury verdict. We hold to the contrary.
In determining whether there is sufficient evidence to support a jury verdict, we view the evidence in a light most favorable to the State and affirm if there is substantial evidence to support the conviction. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988). Substantial evidence is evidence which is of sufficient force to compel a conclusion one way or another. Id. It must be more than mere speculation or conjecture. Williams v. State, 289 Ark. 443, 711 S.W.2d 825 (1986).
The issue we must decide is whether the State presented sufficient evidence to prove that Plotts possessed marijuana with intent to deliver. In order to convict a defendant on possession of a controlled substance, the State need not prove that the accused had actual possession of the controlled substance. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Constructive possession, which is the control or right to control the contraband, is sufficient. Id. Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Id.
Where there is joint occupancy of the premises where contraband is found, some additional factor must be present linking the accused to the contraband. Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985). See Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978). In such cases, the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband and (2) that the accused knew the matter possessed was contraband. Williams, supra.
In Williams, supra, the police stopped the appellant, who was driving his ex-wife’s car, and another individual, who was seated in the right front seat, for speeding. In searching the car, which was emitting a cloud of blue marijuana smoke, the police found a brown paper sack on the floorboard in front of the passenger (according to one officer, in the center of the floorboard) containing 3.6 ounces of marijuana, traces of marijuana “strung all over”, the floorboard, and several “roaches” in the ashtray, one still simmering. In addition, the passenger had a significant amount of marijuana scattered over his clothing. No traces of marijuana were found on the appellant.
In holding that there was insufficient evidence to support the appellant’s conviction for possession of marijuana, we found that the State did not meet its burden of proving that the appellant had both (1) knowledge of the presence of marijuana and (2) control over it.
We have had few cases, except Williams, in which to develop workable guidelines for reviewing a possession conviction where the police find contraband in a vehicle occupied by more than one person, and there is no direct evidence that the contraband belongs to a particular occupant. Accordingly, a review of the analytical framework utilized by other jurisdictions would be useful.
Other courts have held that the prosecution can sufficiently link an accused to contraband found in an automobile jointly occupied by more than one person by showing additional facts and circumstances indicating the accused’s knowledge and control of the contraband, such as the contraband’s being (1) in plain view [Albert v. State, 659 S.W.2d 41 (Tex. Ct. App. 1983); State v. Godsey, 202 Mont. 100, 656 P.2d 811 (1982); Zicca v. State, 232 So. 2d 414 (Fla. Dist. Ct. App. 1970)]; (2) on the defendant’s person or with his personal effects [Vaughn v. State, 473 So. 2d 661 (Ala. Crim. App. 1985)];or (3) found on the same side of the car seat as the defendant was sitting or in immediate proximity to him [Taylor v. State, 682 S.W.2d 391 (Tex. Ct. App. 1984); State v. Woodruff, 205 Neb. 638, 288 N.W.2d 754 (1980); Machin v. Wainwright, 758 F.2d 1431 (11th Cir. 1985)]. Other facts include the accused (4) being the owner of the automobile in question [Rudd v. State, 649 P.2d 791 (Okla. Crim. App. 1982); Albert, supra; Taylor, supra. See also Zicca, supra] or exercising dominion and control over it [Woodruff, supra]; and (5) acting suspiciously before or during arrest [Machin, supra; Taylor, supra].
In Taylor, supra, the police discovered cocaine in a clear cellophane package on the floorboard of the driver’s side of a truck in which the driver-appellant and a passenger were seated. The court held that the officer’s testimony that the appellant was the owner of the truck, that cocaine was located on the appellant’s side of the truck, and that the appellant’s movements just before his arrest indicated he was removing something from his pocket was sufficient to show possession.
In Zicca, supra, the police stopped a vehicle in which the appellant-driver and three other persons were present. The evidence introduced at trial established that the appellant was the owner of the car and that after stopping the appellant, the police spotted marijuana in a cellophane bag on a homemade shelf behind the passenger seat of the car in plain view. On appeal, the court held that this evidence was sufficient to show possession.
In Westbrook, supra, utilizing some of the same facts or circumstances enunciated by these other courts, we linked the accused to contraband found in the kitchen area of a home jointly occupied by the accused and another individual. These facts or circumstances were as follows: (1) the accused owned the house and had the superior right to its control; (2) while an officer was searching the bathroom, the accused came in, picked up a jewelry box, and started out; when the officer retrieved the box it was found to contain $3,700.00 wrapped in three brown paper bags; and (3) upon being taken into custody, the accused asked, “I would like to know which whore in town turned me in.”
We turn now to the facts of the case at bar and apply the relevant factors. After stopping Plotts’ car and determining that Vega, the driver, had no driver’s license, the officer informed Vega that he was under arrest for reckless driving and driving without a license. As the officer was putting the handcuffs on Vega, Vega dropped an aluminum foil package with syringes sticking out of it onto the ground. The officer then called for assistance.
Immediately thereafter, the officer walked over to the passenger side of the car to question appellant Plotts. As he approached Plotts, the officer (with the aid of a flashlight) spotted a clothes bag in the backseat which appeared to be full and thick but had no hangers sticking out of the top. He also noticed that there was a plastic bag containing green vegetable material protruding out of the clothes bag. After determining that Plotts owned the car, the officer asked him if he could search it. According to the officer, Plotts replied, “You can search the vehicle, any part of the vehicle you want to. If there are any drugs in there, I want them out.” Shortly thereafter, the officers searched the clothes bag and found seven bags of marijuana.
We conclude that the following facts, when blended together, constitute sufficient evidence of Plotts’ knowledge of and control over the marijuana so as to establish possession of the controlled substance: (1) the officer spotted the suspicious looking clothes bag and the plastic bag containing marijuana in plain view in the backseat of the car; (2) Plotts owned the vehicle in question; and (3) he made the somewhat suspicious statement, “You can search the vehicle, any part of the vehicle you want to. If there are any drugs in there, I want them out,” after Vega had been removed from the vehicle.
In finding that these facts sufficiently establish possession, we note that our decision in Williams likely would have been decided differently under our current analysis. To the extent Williams is inconsistent with this decision, Williams is overruled.
II. JURY INSTRUCTION.
Plotts contends that the trial court erred in refusing to give the jury an instruction on the lesser included offense of simple possession thereby creating an unconstitutional mandatory presumption. Because he did not abstract the proposed instruction, we do not consider this issue. Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985).
Affirmed.
Purtle, J., dissents. | [
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Steele Hays, Justice.
This small claims case originated in municipal court. The only question is whether or not an appeal to circuit court was timely filed.
Leland Booth, appellee, filed a small claims action against West Apartments, appellant, in the Ft. Smith Municipal Court on October 12, 1987. Appellant was served by certified mail and the complaint and summons were received by appellant’s agent for service on October 15, 1987.
Subsequently, a default judgment was signed by Municipal Judge John Settle which recites that the cause came to be heard on November 3, 1987. There is no date stamp on the default judgment showing when it was filed with the clerk of the court. However, on the official docket sheet of the municipal court is an entry for “11-3-87, Default Judgment,” and the default judgment itself has the date of November 3, 1987 typed in on the designated date line on the document.
On December 7, 1987, appellant’s attorney attempted to take an appeal to the circuit court but was told by the municipal court clerk that it could not be done because more than thirty days had elapsed from the date of the default judgment. On December 8, 1987, appellant filed a notice of appeal to circuit court. On December 9, 1987, appellant filed a letter with Judge Settle pointing out that there was no date or “filed” stamp on the judgment, and that the language of Rule 9(a) of the Arkansas Inferior Court Rules, providing for appeal to circuit court, is similar to Rule 4(e) of the Arkansas Rules of Appellate Procedure, which provides that time for appeal runs from the date of filing.
Apparently in response to this contention, the municipal judge instructed the clerk to process the appeal to circuit court, as the docket notes, “12-9-87 Judge said to accept the appeal.” The transcript was prepared and filed with the circuit clerk on December 11, 1987.
Appellee filed a motion for summary judgment in circuit court contending that the circuit court had no jurisdiction because the appeal was not timely filed. On March 28,1988, the circuit court entered an order finding it did not have jurisdiction because the appeal was not timely filed, and remanded the case to municipal court. It is from the order dismissing the appeal that appellant brings this appeal.
Appellant’s argument essentially relies on applying ARAP to the procedures in inferior courts. ARAP 4(e) and our case law make it clear that the time for appeal runs from the time the judgment is filed, Caskey v. Pickett, 272 Ark. 521, 615 S.W.2d 359 (1981). ARAP 4 deals with the time that an appeal must be taken, and specifically provides that an appeal must be filed within thirty days of the “entry of the judgment,” ARAP 4(a), and that for the purposes of this rule, “A judgment. . .is entered . . . when it is filed with the clerk of the court in which the claim was tried.” ARAP 4(e).
AICR 9 is similar to ARAP 4 and provides:
(a) Time for Taking Appeal. All appeals in civil cases from inferior courts to circuit courts must be filed in the office of the clerk of the particular circuit court having jurisdiction of the appeal within thirty (30) days from the date of the entry of the judgment. [Emphasis added.]
AICR 10 provides:
Where applicable and unless otherwise specifically modified herein, the Arkansas Rules of Civil Procedure and rules of evidence shall apply to the govern matters of procedure and evidence in the inferior courts of this State.
Therefore, appellant argues, we should apply ARAP 4(e) to determine the time for appeal, as there is no similar provision in the AICR. Given that application, the argument continues, the judgment was never “entered,” or filed, as required by ARAP 4(e), and the time from entry of judgment never began to run and the appeal was timely. We disagree.
While ARAP 4(e) establishes that a judgment is entered when it is filed with the clerk of a circuit, chancery or probate court, the procedure is decidedly different from the manner in which a judgment is entered in inferior court proceedings. That difference becomes quickly apparent by a review of AICR 8 and 9, which provide in relevant part:
Rule 8:
(a) By Default. When a defendant has failed to appear or plead within the time specified by Rule 4 hereof, a default judgment may be rendered against him.
(b) Upon the Merits. Where the court has decided the case, it shall enter judgment in favor of the prevailing party for the relief to which he is deemed entitled.
(c) Docket Entry. The court shall timely enter in the docket the date and amount of the judgment, whether rendered by default or upon the merits.
(d) Judgment Lien. A judgment entered by an inferior court in this state shall not become a lien against any real property unless a certified copy of such judgment, showing the name of the judgment debtor, the date and amount thereof, shall be filed in the office of the circuit clerk of the county in which such land is situated.
* * *
Rule 9:
(a) Time for Taking Appeal. All appeals in civil cases from inferior courts to circuit court must be filed in the office of the clerk of the particular court having jurisdiction of the appeal within thirty (30) days from the date of the entry of the judgment. (Emphasis added).
The foregoing rules, particularly Rule 8(c), reflect that an inferior court, such as the municipal court, enters any judgment it renders by entering, in a timely manner, the date and amount of the judgment in the court’s docket. This specific procedure for entering judgments in an inferior court is in marked contrast to that applicable to courts of general jurisdiction under ARAP 4(e), where judgments are entered only when they are filed with the clerk of those courts.
In the instant case, it is clear that the Ft. Smith Municipal Court timely entered a default judgment against the appellant on the court’s docket on November 3, 1987, and that more than thirty days had elapsed from that date before appellant attempted to file a notice of appeal. That being so, we conclude that the trial court was correct in finding it had no jurisdiction because appellant’s attempted appeal was untimely.
Affirmed. | [
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Jack Holt, Jr., Chief Justice.
Appellant Stanley M. Virden was charged by information with two counts of indecent exposure. Ark. Code Ann. § 5-14-112 (1987). Virden was found guilty in municipal court and again on appeal in the Pope County Circuit Court. Before trial, Virden moved that the charges be dismissed because at each stage the prosecution had been brought in the name of the City of Russellville, contrary to A.R.Cr.P. Rule 1.5, which requires that all prosecutions for violations of the criminal laws of this state be brought in the name of the state. The motion was denied. We affirm.
On appeal, Virden does not challenge the jurisdiction of either the municipal court or that of the circuit court as concerns trial of this matter. Rather, he argues only that Rule 1.5 barred prosecution in the name of the City of Russellville.
While the proper procedure under Rule 1.5 would have been to designate the State of Arkansas as plaintiff, the error was not such that it stripped either the municipal court or the circuit court of jurisdiction to try the case. Urich v. State, 293 Ark. 246, 737 S.W.2d 155 (1987); Graham v. State, 25 Ark. App. 234, 756 S.W.2d 921 (1988). Under the circumstances, and because we find no prejudice, the error complained of does not constitute sufficient grounds for this court to reverse. Wheat v. State, 295 Ark. 178, 747 S.W.2d 112 (1988).
Affirmed.
Dudley, J., dissents. | [
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Mehaffy, J.
Tlie appellants -were partners and the owners of certain personal property which was stored in a barn they had leased from Mrs. Ed Anderson. The barn was located near the line of appellee’s railroad track, about 150 yards south of the track. On December 6, 1918, the barn was destroyed by fire, and appellants’ property which was in the barn was destroyed. The fire originated near the railroad track, and it was alleged that it was caused by the operation of appellee’s trains or that it resulted from acts of employees of appellee. The value of the property destroyed was alleged to be $342.70. Suit was brought in the circuit court to recover this amount and also to recover $80 attorney’s fee.
The fire was started sometime after 10 o ’clock in the morning of December 6. Neither of appellants saw the •fire or knew about the bam haying burned until that night after the fire. They were shown, however, where the fire started, and the undisputed proof shows that it started on the north side of the railroad track. Three trains passed the place on December 6, between 8:30 and noon; all of them were oil burners.
George Osborne, who saw the fire, testified that he saw the bam thrée times the day it was burned, at 8:30 a. m., 10:30 a. m. and 12:30 p. m. That the bam was about 100 yards from appellee’s railroad track; that he saw the fire burning on the east side of the railroad track opposite the barn at 10:30 a. m. At that time the fire, had burned over 'about one acre; he testified that it originated ón defendant’s right-of-way, and that about half an hour after the train passed the fire was on the opposite side of the right-of-way from the barn, about 100 yards north of the barn. The fire at that time was spreading towards the south, due to a stiff wind. At 2:30 p. m. the same day, the witness saw the barn in flames. He saw a section crew working on the tracks at a point about a quarter of a mile south of the barn while the bam was burning. The section crew was burning ties in the vicinity that day. He said when he passed that place at 10:30 that the fire had originated and burned a spot of grass along the. right-of-way on the opposite side of the track; the wind was high, and the fire had crossed the tracks and was burning rapidly. The wind was from the north blowing south and carrying the fire towards the bam. The train this witness saw pass was a freight train. He said he took special notice that there were no hunters in the field that day. It was about 2:30 that day that witness saw the section crew burning ties albout a quarter of a mile below the barn.
Finnis Osborne testified that he was at home that day; he lived between Mrs. Anderson’s bam and Okolona, on the opposite side of the railroad track from the bam; his house isi 200 or 300 yards from the railroad track on the north side of the track, and the barn is on the south side. He could see the barn burning from his. house; saw fire burning down by the railroad track about 11 o’clock that morning, and heard a train pass before he saw the fire burning near the track. He said it might have been an hour after the train passed before he saw the fire. It was about half a mile- from his house to the bam.
Appellee’s witnesses testified that three trains passed between 8:30 a. m. and noon; the first two were freight trains and the next was a passenger, which passed Okolona at 11:52, going north. The next train that passed that way was in the afternoon at 2:50. All these trains would pass by the bam.
The engineer on the first freight train that passed said he passed the barn about 8:40; that his engine was an oil burner and in first class condition, and that there was no fire burning as he went by that morning; saw the fire in the evening as he came back. He testified that the burning of oil makes no sparks or cinders. He testified about the length of time he had run an engine and his familiarity with the oiFburning engine, and then was permitted to testify, over the objection of plaintiffs, that it was impossible for an oil-burning engine to throw out sparks, and1 that it was impossible for an oil-burning engine to put out fire as it was running along the road; that it was impossible for fire to get out as the engine was running along.
Another engineer testified to substantially the same facts and testified about it being impossible for an oil burner to set out fire. Tbis testimony was objected to by plaintiffs.
The engineer running’ the other train testified substantially to the same facts as the first two engineers.
The boilermaker testified about his experience in inspecting locomotives and was also permitted to testify, over objection of ■ plaintiffs, that it was not possible for an oil burning engine to put out a fire between the tracks.
Plaintiffs’ witnesses in rebuttal testified to having seen engines with oil burners set out fire near the track.
The jury returned a verdict for' the defendant, and this appeal is prosecuted to reverse the judgment of the circuit court.
The appellants first insist that the case should be reversed because the court refused to give the following instruction: “The jury are instructed that if you believe from the evidence that the plaintiffs’ property was destroyed by fire, and further find that the fire which destroyed the property was caused by fire from any locomotive, engine, machinery, train, car or other thing used upon said railroad or in the operation thereof or which resulted from or was caused by any employee, agent or servant of such defendant railroad company, while such agent or servant was in the discharge of his duty, then you should find for the plaintiff.” The court modified the instruction requested by plaintiffs by striking out after the word car, “or other thing,” and gave the instruction as modified. Appellants insist that they were entitled to the instruction as requested because the statute makes the companies liable for destruction of property which may be caused by fire or result from any locomotive, engine, machinery, train, oar or other thing used, etc. It is insisted that the instruction as requested should be given because no evidence was offered by appellee tending to show that something other than one of these locomotives or trains or box-cars or caboose or the employees thereon, or the motor-car, or the employees thereon, caused this fire. In other words, it is insisted that appellants were entitled to the instruction because there was no proof showing* how the fire originated; no proof, no evidence, that the fire was set out by some agency other than those of the railroad company. If there had been any evidence tending to show that the fire was set out by other things used by the railroad, the instruction would have been proper, but there is no evidence in the record tending to show that the fire was set out by any other thing than those enumerated in the instruction. It is true that one off plaintiffs’ witnesses testified that the section hands were burning ties about a quarter of a mile away, but he said this was at 2:30 in the afternoon, long after the fire had started, which burned the bam, and there is no evidence that any fire originated or spread from the burning of these ties. There was therefore no evidence upon which to base that part of the instruction which the court struck out. It is true that if the evidence had shown that the fire came from some other part of the train, whether from the locomotive, machinery, the train, the car or other thing used upon said railroad, then the defendant would be liable the same as if the fire had been caused by the locomotive. The burden of proof was upon the appellants to show that the fire was set out by the railroad company, or that it resulted from the locomotive, engine, machinery, train, car or other thing, etc., and they were not entitled to an instruction unless there was some evidence upon which to base it. There was no evidence that any other thing than those mentioned by the court in its instruction caused the fire, and the only testimony about other employees is that some section hands about a quarter of a mile away were burning ties, but it was not only a quarter of a mile away and after the fire had already started, but there is no evidence either direct or circumstantial that the fire was set out by burning the ties.
Appellants are not required to prove by direct evidence, but if the evidence either direct or circumstantial showed that the fire was set out as mentioned in instruction 1, the appellee would be liable.
It is next insisted that the court erred in refusing to give the following instruction: “If you find from the evidence that the fire which destroyed plaintiffs’ propr erty originated and spread from a fire which was discovered near defendant’s railroad track shortly after a train had passed, and the proof does not establish some other origin off the fire, the presumption is justified that the fire originated from sparks from the engine of the train.” The court modified this instruction to read as follows: “If you find from the evidence that the fire which destroyed plaintiff’s property originated and spread from a fire which was discovered near defendant’s railroad track shortly after a train had passed, this is a circumstance which may be considered by the .jury in determining how the fire originated,” and gave it as modified.
The instruction, as asked by appellants, was a peremptory instruction to find for appellants. It simply tells the jury that, if they believe from the evidence that the fire which destroyed plaintiffs’ property originated and spread from a fire which was discovered near defendant’s railroad track shortly after a train had passed and the proof does not establish some other origin of the fire, the presumption is justified that the fire originated from sparks from the engine of the train. The undisputed proof shows that the fire was discovered near the railroad track after a train had passed, and there is no proof to establish some other origin. The giving of the instruction as requested therefore would have told the jury in effect that they were justified in finding for the plaintiffs. When the evidence shows that a fire originated and spread near a railroad track after a train passed, and there is no evidence of any other origin of the fire, this court has said an inference is justified that the fire originated from sparks, etc., but this inference is to be drawn by the jury and not by the court. This court has frequently approved instructions which told the jury that, if they found from the evidence, either direct or circumstantial, that the railroad company set out the fire and destroyed the property, the defendant would be liable. 'That means that if the evidence shows that a train passed shortly before a fire started up and there was no other origin of the fire shown in the evidence, this is a circumstance justifying the inference, but this inference must be drawn by the jury and not by the court. But, as this court has said, if all the facts and circumstances in evidence fairly warrant the conclusion that the fire did not originate from some other cause, then the jury may infer that it originated from sparks or flames.
An instruction relating to negligence or acts for which a defendant would be liable should not be given where the evidence did not show that these acts caused the injury. “It may be first said that certain of these instructions should not have been given for the reason that the acts of negligence complained of were not the proximate or -contributing causes of the injury. This is true of the allegations of negligence in regard to the blow-pipe and the oily condition -of the floor. There is no testimony' showing that these conditions, even though their existence constituted negligence, contributed to appellee ’s injury, and the instructions on those subjects were therefore abstract and erroneous.” Garrison Co. v. Lawson, 171 Ark. 1122, 287 S. W. 396 ; Texas Pipe Line Co. v. Johnson, 169 Ark. 235, 275 S. W. 329 ; Mo. Pac. Rd. Co. v. Parker, 167 Ark. 42, 266 S. W. 959 ; Lee County National Bank v. Hughes, 165 Ark. 463, 265 S. W. 50 ; Mo. Pac. Rd. Co. v. Brooks, 165 Ark. 466, 265 S. W. 46.
The court was therefore correct in refusing to give instruction No. 2 as requested. Appellants objected to the giving of instruction No. 2 as modified by the court, but their objection was general, and no specific objection was pointed -out. When the evidence established the fact that a train has passed and shortly thereafter a fire was discovered burning nearby, it is sufficient to justify a finding that the train put out the fire, but it does not justify the court in telling the jury that there is a presumption that it did. The jury are to find from the evidence direct and circumstantial whether the railroad company set out the fire. In the instant case, the undisputed proof shows that the fire originated on the north side of the track. Appellants’ witness Osborne saw the fire early, and he testified it was on the north side of the track. The undisr puted evidence also shows that there was a stiff wind from the north. It is difficult to imagine how with a stiff wind from the north the fire from the engine or train would set out a fire on the north side of the track and bum an acre or more 'before it reached the track, and yet this is what the undisputed proof shows. Some of appellee’s witnesses say that the fire originated in a field. However, Osborne, á witness for appellant, says' it originated on the right-of-way north of the track.
Appellants next contend that the court erred in giving instructions 3, 6 and 7 requested ¡by defendant because they claim that it confined the .jury to the theory that the fire must have been set out by a locomotive. No. 3 was not objected to by the appellants. No. 6 was given over the general objection of appellants. It told the jury that it was not incumbent on the defendant to show how the fire originated, but that the burden was up'on plaintiffs to show that the fire was caused by sparks, flames or cinders from one of defendant’s locomotives, and that the plaintiffs must prove this by a fair preponderance of the evidence before they are entitled to recover, and, unless they had so proved this by competent testimony, the verdict should be for the defendant. In the first place, we think this included all of the things about which there was any testimony tending to show how the fire originated, and, during the progress of the trial, the court said: “Well, as I understand the issue, you are attempting by facts and circumstances to show that this fire was put out — the fire that burned that property, was put out by the operation of the defendant’s railroad train.” Plaintiff’s attorney answered, “Yes, sir.” It is true the defendant would be liable if it set out the fire whether it came ¡from the locomotive or from its caboose or from a burning hot-box or even if one of its employees should throw a lighted match or burning cigarette from the train. That the fire came from the caboose or a burning hot-box or from one of the employees throwing' a lighted match or burning cigarette from the train is mere conjecture. There is no evidence tending'to support this theory. But, if appellants had wanted these things stated in the instruction, it was their duty to call the court’s attention to it and make specific objection to the instruction as given.
We do not think objection to' No. 7 is well taken. Appellants say that it told the jury that the plaintiffs must produce some witness who saw sparks, flame, or cinders go from that locomotive into the grass or weeds and then saw a fire spring up from that, before they could find for the plaintiffs. This is not a proper interpretation of the instruction. They were told that the plaintiffs must establish by a preponderance of the evidence that the fire which damaged his property was caused or set out by the operation of one of defendant’s trains; that does not mean by direct evidence, but if plaintiffs had shown by either direct or circumstantial evidence that the railroad company set out the fire, it would be liable, and the court would doubtless have given an instruction to this effect, if it had been requested to do so. The first instruction given at request of plaintiffs told the jury that, if they believed from the evidence that plaintiff’s property was destroyed by fire, and if they further found that the fire which destroyed the property was caused by fire from any locomotive, engine, machinery, train or car used upon said railroad or in operation thereof or which resulted from or was caused by an employee, agent or servant of such defendant railroad company while such agent or servant was in the discharge of his duty, then they could find for the plaintiffs. The court also told the jury at the request of appellants that, if fire was discovered near defendant’s railroad track shortly after a train had passed, this is a circumstance which may be considered by the jury in determining how the fire originated. The instructions given by the court, when considered as a whole, correctly stated the law to the jury, and we do not think they could have been misled. They might have found a verdict either way.
It is next contended that the court erred in permitting defendant to introduce locomotive engineers and prove by them that the engine was in good working condition, an oil burner, and that it was impossible for the oil burner to set out a fire. The evidence of these witnesses was admissible, and the court admitted it, but at the time stated that it was all a question for the jury from the evidence. The court stated that the witnesses had qualified as experts, and it was a question for the jury as to whether or not their testimony was true. The appellants then put on witnesses to contradict them and showed by these witnesses that oil burners had set out fires. The opinions of expert witnesses are admitted in evidence for the sole purpose of aiding the court or jury to understand questions which inexperienced persons are not likely to decide correctly without such assistance. They are admissible when the witnesses have had special experience and from this experience can testify as to things which the ordinary witness would not know about. A witness may testify as an expert where experience and observation in the special calling of such witness gives him knowledge of the subject in question beyond that of persons of common knowledge. The expert witnesses in this case testified to having had long experience in the operation of engines with oil burners and had acquired knowledge which the ordinary person would not have, and we think their evidence was admissible, but the truth of what they said was to be determined by the jury. Newport Mfg. Co. v. Alton, 130 Ark. 542, 198 S. W. 120'; St. L. I. M. & S. R. Co. v. Dawson, 77 Ark. 434, 92 S. W. 27 ; K. C. Sou. Ry. Co. v. Henrie, 87 Ark. 443, 112 S. W. 967.
The theory of appellants is that the fire was set out by the railroad company by the operation o.f its train, and the evidence on their part is introduced to establish this fact. The theory of appellee is that the train did not set out the fire and undertook to show by expert evidence that a burner like the ones used on the trains passing that day could not set out the fire. These were questions for the jury to determine, and wé think there was sufficient evidence to "sustain the finding of the jury.
The judgment is affirmed. | [
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David Newbern, Justice.
This is an appeal of the dismissal of a complaint which sought damages because the appellee, City of Fayetteville, wrongfully let a contract to do archeological work without taking bids. We affirm the trial court’s determination that the complaint of the appellant, Timothy Klinger, did not state facts sufficient to state a claim upon which relief could be granted. Ark. R. Civ. P. 12(b)(6).
The background for this case can be found in Klinger v. City of Fayetteville, 293 Ark. 128, 732 S.W.2d 859 (1987), where we held that the city was bound by Ark. Code Ann. § 14-47-138 (1987), formerly part of Ark. Stat. Ann. § 19-716(a) (Repl. 1980), to seek competitive bids for professional services. Upon remand, the chancellor granted to Klinger the declaratory judgment and injunction he had sought in that case.
Klinger then filed a complaint seeking damages in the amount of 1.44 per cent of the “overhead” which had apparently been guaranteed to the party who performed the contract plus 15 per cent of the “total project costs as profit.” The chancellor granted the city’s motion to dismiss the complaint and gave Klinger ten days to plead over. Klinger then amended his complaint, but his allegations remained substantially the same. The complaint was again dismissed.
In his letter ruling dismissing the first damages complaint the chancellor noted that Klinger’s “situation excites sympathy,” however, the chancellor was unable to find any Arkansas authority supporting Klinger’s claim. Cases from other states were also found to be negative.
We find the general rule to be that statutes requiring competitive bidding for government contracts are enacted for the benefit of the taxpayers rather than for the benefit of those who would sell goods or services to governmental entities, Gulf Oil Corp.v. Clark County, Nevada, 575 P.2d 1332 (Nev. 1978); City of Scottsdale v. Deem, 27 Ariz. App. 480, 556 P.2d 328 (1976). Although violation of a competitive bidding statute may create a right to an equitable remedy or mandamus, it does not give rise to a claim for damages. Sutter Bros. Const. Co., Inc. v. City of Leavenworth, 238 Kan. 85, 708 P.2d 190 (1985). See 10 E. McQuillan, Municipal Corporations, § 29.86 (R. Eickhoff and M. Meier, 3d ed. 1981).
We have found no case in which it was held that a governmental body’s violation of a statutory bidding requirement gave rise to an action for damages by a would-be contractor. The closest we have come is Swinerton & Walberg Co. v. Inglewood-Los Angeles County Civic Center Authority, 40 Cal. App. 3d 98, 114 Cal. Rptr. 834 (1974), in which it was held that a cause of action in promissory estoppel was stated by a disappointed bidder who claimed he had submitted the lowest bid. The recovery in that case would have been limited to expenditures made in preparation for bidding in reliance upon the promise. Here we had no promise to let the contract to the lowest bidder, so promissory estoppel is not available to Klinger as a basis of relief. Cf., Premier Electrical Const. Co. v. Bd. of Education of the City of Chicago, 70 Ill. App. 3d 866, 388 N.E.2d 1088 (1979).
In support of his argument for reversal, Klinger cites only Ark. Const, art. 2, § 13, and Baker v. Armstrong, 271 Ark. 878, 611 S.W.2d 743 (1981), for the proposition that for every legal wrong there is a remedy. While we have some of the same sympathy to which the chancellor referred, the point demonstrated by all the authority we have found is that a person in Klinger’s position has suffered no legal wrong where a governmental body fails to follow a statutory competitive bidding requirement.
Affirmed. | [
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DuNaway, J.
Appellant, Onida Franks, appeals from a decree of the Washington Chancery Court giving Bennie Wood, appellee, a lien against 8.92 acres of land for the digging of a water well on said property.
The facts are undisputed: The land in question was conveyed on November 7, 1947, to appellant and Hugh Franks, husband and wife, creating in them an estate by the entirety. After a separation in July, 1948, they entered into a property settlement agreement on August 3, 1948, the making of which agreement was recited in a final decree of divorce rendered August 28, 1948. Each party executed a quitclaim deed to the other as to the land in controversy, which deeds were placed in escrow. Under the terms of the property settlement, Hugh Franks was given possession of the land and was to pay appellant $1,000 plus ten per cent, interest on or before August 1,1949; he was also to keep up the payments due the mortgagee of said property. In the event of his default, the escrow agent was to deliver to appellant the deed executed by Hugh Franks, and Franks was to relinquish possession of the property. . Upon full payment by Franks of the agreed sum, the deed executed by appellant was to be delivered to him.
On December 1,1948, while Franks was in possession he entered into an oral contract with appellee to dig a water well on the premises. The work was started and continued until February 1, 1949. Labor and materials in the amount of $153 were furnished.
Franks defaulted in the mortgage payments in January, 1949. When appellant learned of this in February, 1949, she made the past-due payments and received and had recorded the deed from Hugh Franks to her on February 23, 1949. She thereafter took possession.
On March 15, 1949, appellee filed his lien for the amount due for labor and materials in digging the well, under the provisions of Ark. Stats. (1947.), § 51-701. The pertinent parts of that section read as follows: ‘ ‘ Any persons, . . . who shall under contract, . . . with the owner or lessee of any land, . .• . perform labor or furnish fuel material, machinery or supplies, used in the digging, drilling, . . . any . . . water well, . . . shall have a lien on the whole of such land or leasehold interest therein, . . . the buildings and appurtenances, and upon the materials and supplies so furnished, . . . ” In Ark. Stats. (1947), § 51-708, it is provided that the foregoing lien shall be enforced in like manner and in the same time as liens of mechanics. See Ark. Stats. (1947), §§ 51-608 and 51-613, providing that the lien shall be filed with the circuit clerk of the county in which the work is done within ninety days after the last work is done or materials furnished.
Appellant had no knowledge, of the contract with appellee and no notice that the work was being done until after the well was completed.
The Chancellor decreed that appellee had a lien on all the land to secure the account with interest, which totalled $160.31 and ordered the same foreclosed and the land sold, subject to the prior mortgage. Personal judgment was rendered against Hugh Franks, but not against appellant as had been prayed. On this appeal it is appellant’s contention that the contract of Hugh Franks with appellee was in no way binding on her, that he was not the “owner” of the property in question and did not have any interest in the land which would enable him to charge it with a lien.
The mere execution of the quitclaim deeds by Ouida and Hugh Franks did not transfer any interest in the land. Until the deed of Hugh Franks was delivered to appellant in accordance with the terms of their agree ment, the estate by the entirety by which they held this property was not affected. The decree of divorce did not attempt to change this estate, as might have been done, under authority of Act 340 of the Acts of 1947. A consideration of that Act is therefore unnecessary.
The nature of an estate by the entirety and the extent to which husband and wife may alienate or subject their respective interests therein to their individual obligations are discussed in an article, “Estates by the Entirety in Arkansas,” in 6 University of Arkansas Law School Bulletin 13. Either spouse may transfer his interest in the estate by the entirety, including his right of survivor-ship, but may not thus affect the interest of the other. Simpson v. Biffle, 63 Ark. 289, 38 S. W. 345. See, also, Branch v. Polk, 61 Ark. 388, 33 S. W. 424, 30 L. R. A. 324, 54 Am. St. Rep. 266. In Moore v. Denson, 167 Ark. 134, 268 S. W. 609, it was held that the interest of either spouse is subject to sale on execution to satisfy a judgment against him. There we said at page 139 (quoting from Branch v. Polk, supra): ‘ ‘ They each are entitled to one-half of the rents and profits during coverture, with power to each to dispose of or charge his or her interest, subject to the right of survivorship existing in the other.” See, also, Pope v. McBride, 207 Ark. 940, 184 S. W. 2d 259.
It follows therefore that Hugh Pranks at the time the contract was entered into with appellee was the owner of an interest in the property in question which could be subjected to a well-digger’s lien. He could not, however, affect the interest of his ex-wife without her knowledge or consent. The statutory lien as to Hugh Pranks’ interest was not defeated by the delivery and recordation of his quitclaim deed on February 23, 1949, even though the lien was not filed until March 15, 1949. Under our decisions this lien, if filed within the ninety-day period allowed by the statute, relates back to the time the labor and material were furnished and is superior to intervening incumbrances and conveyances. White v. Chaffin, 32 Ark. 59; Bell v. Koonts, 172 Ark. 870, 290 S. W. 597. Consequently appellee’s lien as to Pranks’ interest had already attached before his deed to appellant became effective.
The cause is affirmed in part, reversed in part and remanded with directions that the decree be modified in accordance with this opinion. | [
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Jack Holt, Jr., Chief Justice.
Marvin Hicks, a federal prisoner, appeals a circuit court decision denying his petition for writ of mandamus against Pulaski County Sheriff Carroll Gravett. Hicks wanted the trial court to order Sheriff Gravett to withdraw a detainer that was lodged against Hicks by the sheriff because of a state conviction in Arkansas. We affirm.
The petitioner, Marvin Hicks, is presently serving a twenty-four month sentence at the Federal Correctional Institution in Seagoville, Texas. Subsequent to his federal sentencing, Hicks was sentenced in Pulaski County Circuit Court to the Department of Correction. As a result, Sheriff Gravett lodged a detainer against Hicks at Seagoville Federal Correctional Institution. Once the Federal Bureau of Prisons learned of this detainer, it refused Hicks’ request to be transferred to a minimum security federal prison explaining that if the detainer was removed, Hicks would be considered for minimum security placement.
Hicks subsequently filed a petition for writ of mandamus with the Pulaski County Circuit Court asking the court to issue a writ of mandamus “compelling the Defendant to withdraw the Detainer filed against the Plaintiff immediately.” Hicks based his petition on an allegation that Sheriff Gravitt lacked the authority to issue the detainer and that this was an improper use of a detainer.
After a hearing on this matter, the Pulaski County Circuit Court determined in pertinent part that:
2. That the Defendant placed a detainer on Plaintiff with the Federal Bureau of Prisons to hold Plaintiff to serve his state sentence when he completed his federal sentence.
3. That the detainer was not issued under, nor is it governed by, the Interstate Agreement on Detainers (Ark. Code Ann. § 16-95-101, et seq.).
4. The detainer is a valid request to hold the prisoner and to notify Defendant when release is imminent, and Defendant has the inherent authority to place the detainer.
IT IS, THEREFORE, ORDERED AND ADJUDGED that Plaintiffs Petition for Writ of Mandamus be denied and dismissed.
It is from this decision that Hicks brings this appeal.
The standard of review upon .denial of a writ of mandamus is whether the trial court abused its discretion. State v. Sheriff of Lafayette County, 292 Ark. 523, 731 S.W.2d 207 (1987). In deciding when a writ of mandamus should issue, we said in Eason v. Erwin, 300 Ark. 384, 781 S.W.2d 1 (1989):
A mandamus is not a writ of right but is within the discretion of the court, and the party applying for it must show a specific legal right and the absence of any other adequate remedy. It will not lie to control or review matters of judicial discretion, but only to compel the exercise of such discretion.
(Citations omitted.) See Thompson v. Irwin, 310 Ark. 533, 838 S.W.2d 353 (1992). Furthermore, a mandamus action enforces the performance of a legal right after it has been established; a mandamus’ purpose is not to establish a right. Springdale Bd. of Education v. Bowman, 294 Ark. 66, 740 S.W.2d 909 (1987); Buttolph Trust v. Jarnagan, 302 Ark. 393, 789 S.W.2d 466 (1990).
Hicks has failed in his proof to show a “specific legal right” to have the detainer withdrawn. As such, the decision of the circuit court to deny the writ of mandamus is affirmed.
Defined generally, a detainer is the “restraint of a man’s personal liberty against his will.” Blacks Law Dictionary, 5th Ed. The Interstate Agreements on Detainers Act, Ark. Code Ann. § 16-95-101 et seq., deals specifically with ensuring that prisoners with pending charges in other states are protected from speedy trial violations. Under the Act, a detainer is “an informal notice to prison authorities that charges are pending elsewhere against an inmate and requesting the custodian to notify the sender before releasing the prisoner.” 21 Am. Jur. 2d § 404 (1981). This court has determined that for purposes of the Interstate Agreement on Detainers, a detainer is a “notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face criminal charges in another jurisdiction.” Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988) (citing United States v. Mauro, 436 U.S. 340 (1978)).
According to Hicks’ argument, because the detainer against him was issued due to a previous conviction and not due to pending charges or indictment, it was issued in violation of the Interstate Agreement on Detainers and issued by the sheriff absent any authority to take such an action. Yet, the fact that the detainer was not issued pursuant to pending charges merely indicates, as the circuit court found, that the detainer is not subject to the Interstate Agreement. Besides, the Interstate Agreement on Detainers was not drafted to protect prisoners in situations like Hicks’. Instead, it was designed to give a “prisoner incarcerated in one State the right to demand the speedy disposition of any untried information or complaint.” Carchman v. Nash, 473 U.S. 716 (1985).
Hicks also bases his argument on a contention that Sheriff Gravett did not have the authority to issue a detainer, yet he cites no convincing authority to support his argument. Instead, he merely points out that there is not a statute that specifically grants the sheriff the authority to issue detainers. Assuming this is correct, a party applying for a mandamus must show a “specific legal right,” Eason, supra, for the writ, and Hicks has not done so.
In affirming the trial court, we note that it also found that the sheriff has the inherent authority to place the detainer. We do not pass judgment on this issue as it is not necessary under the facts of this case.
Affirmed.
Corbin, J., not participating. | [
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Mehaffy, J.
Suit was begun by appellant in the Arkansas Chancery Court, Northern District, against appellees to foreclose a mortgage on the northwest quarter of section 21, township 3 south, range 5 west, in Arkansas County. On March 2, 1925, there was a decree for $13,-988.24 and for the foreclosure of the mortgage and sale of above-described land. On April 24, 1929, the appellee, Fred H. L. Juhl, was adjudged a bankrupt, and the above-described property was included in his schedule. The appellant, A. W. Franzen, filed an intervention in the district court of the United States. The court granted the prayer of appellant and ordered the trustee in bankruptcy to deliver possession of above-described property to the commissioner named in the decree of the Arkansas County Chancery Court for the purpose of selling same under the terms of said decree. On July 24, 1929, the commissioner sold said land to appellant for $6,000, after having advertised the same as provided in the decree. At the next term of court, appellees filed the following exceptions to the report of sale and the confirmation.
“Comes the above-named defendants and for their exceptions to the sale, the report of sale and the confirmation of sale in the above-styled cause of action state:
“That on the 2d day of March, 1925, a decree was rendered in the above-styled cause by the terms of which judgment was given against said defendants in the sum of thirteen thousand, nine hundred eighty-eight and 24/100 dollars ($13,988.24). That thereafter, and before any sale was had under said decree, the plaintiff promised and agreed to dismiss said foreclosure proceedings under which said decree was rendered and vacate said decree in the event of the payment of a certain part of the indebtedness evidenced by said decree. That the defendants arranged to pay and did pay to the plaintiff the amount of money necessary to comply with this arrangement, and upon the payment of the same were assured by the plaintiff and his representatives that said decree would be vacated and have believed since said time that said decree was vacated. That since the time of the making of payment upon said decree as referred to the defendants have made other large payments upon said indebtedness.
“That without notice to the defendants the plaintiff had the lands described in the mortgage foreclosed in said decree advertised for sale and sold during the month of July, 1929. That this sale was made by Duce Pike as commissioner. That no credit is shown upon the decree originally entered nor is any order made vacating the same. That the sale of said lands as made in this proceeding was in complete violation of the agreement made by the plaintiff with the defendants whereby a payment of several thousand dollars was obtained by the plaintiff from the defendants. That said payment and subsequent payments were never indorsed upon said decree, and that when said sale was made by the commissioner the same was advertised to be sold for the full amount of the decree without crediting said payments.
“That such advertisement and such sale, if otherwise valid, should be set aside because of the grave injustice done to these defendants by the misrepresentation of the correct indebtedness owing upon said lands.
“Wherefore, defendants pray that the sale referred to be set aside and the decree referred to be vacated;
“As alternative relief defendants pray that the said sale be set aside and the credits to which these defendants are properly entitled be made upon said decree prior to any advertisement or resale of same;
“That the costs of the sale heretofore erroneously held be chargeable against the plaintiff and not chargeable as costs of this action; for all other relief proper in law and equity. ’ ’
Thereupon the appellant filed motion to strike the exceptions as follows:
“Comes now the plaintiff and moves the court to strike the exceptions to the report of sale filed by the defendant, Fred Juhl, and for cause says:
“That, after the decree of foreclosure herein and before the sale by the commissioner, the defendant, Fred Juhl, was adjudged a bankrupt by the United States District Court, for the Western Division of the Eastern District of Arkansas, and has never been discharged.
“That E. H. Noble was elected or appointed as trustee in said bankruptcy proceedings, and duly qualified as such and was such trustee at the time said Juhl filed said exceptions.
‘ ‘ That he intervened in said bankruptcy matter and set up his decree of foreclosure and prayed said court for an order permitting said sale, which prayer said court granted.
“Plaintiff says that said Juhl had no right or interest in said land, and, if so, same passed to said trustee.
“Wherefore, plaintiff prays that said exceptions be stricken from the files and said report be confirmed and for all other relief.”
On the same day the appellees filed the following response:
“That he was adjudged a bankrupt on the .................. day of................................................, 1929, and further states that he has never been discharged from said bankruptcy.
“That the lands involved in the foreclosure proceedings of which this motion is part of the pleadings, is land upon which this defendant is now living and has lived for several years. That said land is impressed with the right of homestead in this defendant, and that as such he is entitled to and has an interest which did not pass to the trustee appointed in said bankruptcy proceedings'.
“Wherefore, this defendant prays that the motion to which this response is offered be overruled.”
The court overruled appellant’s motion to strike exceptions and the appellees filed the following amendment to exceptions:
“On or about March 26, 1925, the following letter was received by F. H. L. Juhl:
‘“Mr. F. H. L. Juhl,
“ ‘Stuttgart, Arkansas.
‘ ‘ ‘ Bear Sir: In connection with the foreclosure suit against you instituted by A. W. Franzen at the last term of court; this is to advise you that when the $3,000 is applied to your credit out of the loan of $6,500 being made to your father, Hy. Juhl, together with the payment of note for $404 on which judgment was taken and all taxes due for the year 1925, payable on or before April 10, 19'25, and all costs such as abstracter’s bill and examination of title, the recording charges and $500. paid to Power Mfg. Co., then the suit above mentioned will be dismissed without prejudice. I am,
“ ‘Yours very truly,
“ ‘A. W. Franzen,
“ ‘By C. Gr. Rodgers.’
“That the said Rodgers, the signer of the above letter, was agent and representative of A. W. Franzen at the time at which said letter was written.
“That on March 25, 1925, the sum of three thousand dollars ($3,000) was paid to A. W. Franzen out of a loan made to Henry Juhl father of Fred Juhl and at the same time taxes upon the F. H. Juhl land for the year were paid in the sum of four hundred fifty-two and 71/100 dollars ($452.71) and the sum of five hundred ($500) dollars was paid to' Power Manufacturing Company. Also at the same time a judgment of four hundred forty-four and ’24/100' dollars ($444.24) was paid to the said A. W. Franzen.
“Also sometime during the year 1927 C. A. Franzen, representative of A. W. Franzen, contracted with F. H. L. Juhl as follows:
“ ‘Mr. F. H. Juhl,
“ ‘'Stuttgart, Arkansas.
“ ‘Dear 'Sir: If you will pay over to me one-fourth of all the proceeds of your 1927 rice crop and one-fourth of all of the proceeds of the rice crops grown in subsequent years, each of said crops to be not less than one hundred acres, to apply on the principal of the decree of $10,000 and out of the other three-fourths and all other crops keep up the interest payments and all taxes and improvements, I am willing- to carry the decree covering the northwest quarter of section 21, township 3 south, range 5 west, for a period of five years at an interest rate of six per cent, per annum, payable annually on the amounts due on the principal from year to year.
“ ‘ (Signed) C. A. Franzen.
“ ‘Accepted, Fred H. L. Juhl.’
‘ ‘ That, since the time of the taking of the decree in' the above-styled cause of action, continuous dealings have been eng;ag’ed in between F. H. L. Juhl and A. W. Franzen, and that during- this period of time the said F. IT. L. Juhl has paid to A. W. Franzen many thousands of dollars, part of which should have been credited against the amount set forth in the judgment and other parts of which were applied against current advances made to the said F. H. L. Juhl.
“That on April 23, 1925,.F. H. L. Juhl paid the sum of $500.
. On March 31,1927, paid $281.28.
December '24, 1926, paid $181.59.
November 10, 1926, paid $565.41.
•February 11, 192iS, paid $1,314.23.
March 12, 1926, paid $1,622.65.
March 12, 1926, paid $811.17.
March 12, 1926, paid $139.71.
“The above mentioned payments represent only a small part of the moneys paid by the said F. H. L. Juhl to A. W. Franzen since the taking of said decree.
‘ ‘That the moneys paid by the said F. H. L. Juhl to A. W. Franzen during the period of time elapsing between the decree and the sale of said land were paid out of the proceeds of rice crops and these remittances to A. "W. Franzen were applied by him, at his discretion, against current obligations or against the obligation set forth in the decree. That the said F. H. L. Juhl has no records from which a correct determination of the use to which said funds were placed can be determined, and the said A. W. Franzen and his representatives are the only persons from whom exact information as to the amount'paid and the application of it can he obtained.
“That the agreement contained in the second letter herein quoted provided that no sale would be held under said decree for a period of five, years from the date of said letter in the event one-fourth of the rice crops were annually paid to A. W. Franzen. That this condition has also been met by the said F. H. L. Juhl.
“Wherefore, petitioner prays that the said sale be set aside, and the said foreclosure proceedings herein be dismissed and the decree under which said sale was held be' dismissed.
“That the plaintiff.be required to furnish full and complete information showing the amount of all remittances received by him from Fred H. L. Juhl or for the account of Fred H. L. Juhl out of the one-fourth of the rice crop raised upon the lands sought to be foreclosed in this proceeding. That the plaintiff be required to pay all costs herein expended.”
On March 30, 1930, the. court sustained the amended exceptions and set aside the sale and also the foreclosure decree.
This appeal is prosecuted to reverse the orders and decree of the chancery court. It is insisted that the decree should be reversed because the title to the property was in the trustee in bankruptcy. It is true that appellee, when he filed his petition in bankruptcy, included this property in his schedule but on the petition of appellant the district court of the United States made an order directing the trustee in bankruptcy to deliver possession of said property to the commissioner named in the decree for the purpose of selling same under the terms of the decree, and possession was accordingly delivered and the property sold by the commissioner under the terms of the decree. The price for which it sold was less than half the amount in the decree.
There is no question of fraud involved, and the mortgage was a valid lien. The only interest the trustee in bankruptcy could possibly have would be whatever value there was of the property in excess of the valid lien in favor of the mortgagee. It is not disputed that the lien exceeded the amount for which the property could be sold.. Therefore the trustee had no interest. The United States District Court doubtless ascertained the facts before making the order. “The trustee takes title to property of the bankrupt which is mortgaged or otherwise incumbered, subject of course to the lien thereon.” 7 C. J. p. 116, et seq. The Arkansas Chancery Court having obtained possession of the property more than four months before the petition in bankruptcy, its jurisdiction was not affected by subsequent proceedings in bankruptcy. 7 C. J. p. 33.
It is next contended that the decree could not be vacated after the term of court at which it was rendered. The section of the digest cited has no application here. If the parties made a valid agreement, it could be enforced or carried out by the court. The record shows without dispute that the appellee was insolvent; that the appellant could collect nothing from appellee except the value of the property mortgaged; that appellee procured a sum of money from his father which he paid to appellant under the agreement, and that he paid to appellant other large sums of money. None of this money could have been collected by appellant without the agreement. Moreover, the appellee did not ask to be relieved from the payment of the debt, but it was agreed that the cause should be dismissed without prejudice. This would permit another suit to'be brought by appellant. This agreement between the parties was one they had a right to enter into, and is therefore binding on the parties. Pfeifer v. Mo. State Life Ins. Co., 177 Ark. 1013, 8 S. W. (2d) 505.
The decree of the chancery court is affirmed. | [
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Mehaeey, J.
This action was begun by appellee, H. E. Roberts, to recover damages against appellant for personal injuries alleged to hiave been caused by the negligence of I. A. Hughes, an employee of appellant, in the city of Marianna, Arkansas, between 7 and 8 o’clock in the morning of August 24, 1928. Hughes was foreman of a construction crew of the appellant company. Roberts, appellee, was 63 years old, had been living in Marianna about 23 years and was engaged in selling marble and granite work. The accident occurred on Texas Street, where the appellee then lived. He had moved into the place the day before and on the morning of the accident had hiad breakfast about 7 o’clock. He gut in his Ford touring car and drove out of the gate and stopped the car on the south side of Texas Street, the oar facing west. As he stopped the car, he got out to get a cow belonging to Mrs. Jordan back into the enclosure. The cow had got out of the gate after he had opened it and driven his car out. He stopped his car about 16 feet west of the gate. "When he got out of his car, he had a plain view for about 300 yards and did not see any automobile in the street, and testified that there was none there at that time. Appellee ran after the cow and his back was towards the west, he was running in a northeasterly direction and did not see the automobile before it struck him. Hughes was driving his automobile east on Texas Street. After appellee was struck, he told Hughes he did not think he was hurt. Hughes was driving east on Texas Street, and, according to his testimony was going 15 or 20 miles an hour, and he also testified that appellee ran out from behind his car and that it was impossible to prevent striking him. The oar which Hughes was driving belonged to him and not to the appellant, and the appellant did not pay him for the use of the car and'had nothing to do with it. Some of the witnesses testified that Hughes was going about 25 or 30 miles an hour.
There was a verdict and judgment for $1,000, and this appeal is prosecuted to reverse said judgment.
The only question raised on this appeal is the sufficiency of the evidence to support the verdict.
It is first contended by appellant that there was no negligence on the part of Hughes, the driver of the car; that he was driving at a moderate rate of speed and ringing his bell, his car having a bell instead of a -horn; that Roberts had got out of his car and gone behind it to close the gate, and that Roberts stepped out from behind his car so quickly that Hughes did not have time to stop after Roberts appeared.
Roberts testified that he drove his car into Texas Street, got out and undertook to drive the cow back into the enclosure, but that, before he did this, he looked west on Texas Street, the direction from which Hughes came, and that there was no car in sight. He had a plain view for about 300 yards, so that according to his testimony, after he got out and started to drive the cow back, Hughes turned into Texas Street and drove east on Texas Street until he struck Roberts. After coming into Texas Street, he had more than half a block to go before he reached the place where Roberts was.
Hughes himself does not testify to any fact showing that he exercised any care at all except that he rang his bell until about the time he hit Roberts, his testimony being that Roberts came out from immediately behind his car and stepped in front of his automobile. Hughes could have seen Roberts immediately if he had been keeping a lookout after he entered Texas Street. Roberts also testified that he was 53 feet east of the point where his car was stopped when he was struck. Roberts and one or two other witnesses testified that Hughes said he was driving fast to catch the boys who had gone on ahead. There is also testimony that his car was running at about 25 or 30' miles an hour. This was sufficient evidence to submit to the jury the question of Hughes ’ negligence.
It is next contended by appellant that Hughes was not engaged in the performance of the duties of his master, but was on a private errand of his own. It is true that Hughes testifies to this, but he is not supported by any witness and is contradicted by the physical facts. Mrs. Bearden, the woman he said he was going to see, lives on Mississippi Street two blocks from the hotel where Hughes’ car was when he started out that morning. To gO' to Mrs. Bearden’s he would only have to drive two' blocks on Mississippi Street. At the time he struck Roberts he was considerably further from Mrs. Bearden’s residence than when he started, and was going in the direction of the place where the crew had to work that day and where, according to the weight of the testimony, they had already gone. Appellant argues that Mrs. Bearden testified that Hughes called at her house between 7 and 8 o ’clock the next morning and told her about the accident. She does testify that Hughes called at her house the morning after the conversation she and Hughes had after her return from Texas and told her about the accident, but she did not testify that the accident had occurred that day. She testified very positively that she did not know whether it wias that day or some other day, and that she did not know whether it was on that trip or some other trip; that he came to her house many times, and one time he told her about the accident. Whether he was going direct to his work, or, as contended by appel lant, on a private errand of Ms own, was a question of fact properly submitted to the jury, and the verdict on that issue is conclusive here. Moreover, if he was engaged in the performance of the duties of the master, a slight departure would not relieve the appellant frota liability, as has been held by this court several times. It is true, that if a servant steps aside from the master’s business to do an independent act of1 his own and not connected with his master’s business, the relation of master and servant is for such time suspended, and for any act of the servant when he is not engaged in the master’s business, the master is not liable. It was said in the case cited and relied on by appellant: “If a servant completely turns aside from the master’s business and pursues entirely his own, the master is not responsible.” Healey v. Cockrill, 133 Ark. 327, 202 S. W. 229, L. R. A. 1918D, 115. The law is well settled in this State that, in order to make the master liablé for the negligent acts of the servant, the servant must be at the time engaged in the master’s business, engaged in the performance of his duties as a servant.
It is nest contended by appellant that it is not responsible for the injuries to appellee because Hughes was at the time driving a car owned and maintained by himself, and appellant cites and relies on the case of St. L. I. M. & S. R. Co. v. Robinson, 117 Ark. 37, 173 S. W. 822. It argues that that case is precisely in point, but in that case the court said: “If the service required oif the call boy could not have been performed in the time given therefor without the aid of the instrument used, the bicycle, it would have occasioned a necessity, and the knowledge by the agent of such use in the performance of the service would have amounted to an implied authorization thereof, making the railroad liable for a negligent injury thereby. ” There was sufficient evidence in this case to justify the jury in finding" that the service to be performed by Hughes could not have been performed, as he says, by walking, without the use of the instrumentality. used, without the use of automobile or some means of conveyance. He was the foreman and had charge of construction of all the lines, not only in the city of -Marianna, but the lines running out from Marianna. Oakwood was some distance south of Marianna, and the place where the crew was at work on this day was some distance south of Oakwood, so it was necessary for appellant’s servant to travel some three or four miles to -get to the place where the crew was to work. It was at least a question of fact as to whether it was necessary to- use the instrumentality in the performance of his duties, and-this question was submitted to the jury under proper instructions, to which no objection is urged. Moreover, Hughes wa-s using this automobile in the performance of his duties for the master, and the undisputed proof shows that the master knew it. While he' said it was not necessary because he could have walked, the facts and circumstances show that he could not have walked and performed his duties. He admitted that his duties in the supervision of the work covered practically the whole of the system in Marianna as well as lines leading* in and out, and while he tried repeatedly to show that he did not use the automobile in the company’s business, yet on the very day of the accident he went to Oakwood and the place where the crew was at work, in the automobile and stayed there a while and went elsewhere. He testified that he did not stay with the crew all the time. He evidently had other places to go in the performance of his duties. He was asked if he went to Oakwood that day, and he- said he did, that he drove out there, but that he did not stay with the job all the time. That he went out to- the job, and when asked if he meant to tell the jury the first time he -used the automobile on the company’s business was the day this accident occurred, he said, “No, sir, I mean to tell you that the company never did pay me for the use of my car on the job.” Again, he was asked, “You did drive down there on that particular morning?” and he an swered, “Yes, sir.” He was then asked, “That was the first time from 1926 up to the date of the accident that you drove it on the company’s business?” and he answered, “No, sir, I drove it many times on the company’s business.” On the morning of the accident and immediately after the accident, Eolberts and other witnesses testified that Hughes said he was driving a little fast in order to overtake the crew. All of the evidence shows that Hughes was at the time of the accident about the business of the master, was acting within the scope of his employment or authority. The question of Hughes’ negligence, the question as to whether or not he was at the time acting within the scope of his employment and the question whether he used the automobile in the performance of his duties with the knowledge of the master, are all questions of fact, were all submitted to the jury under proper instructions, and the rule here is, if there was any substantial evidence to support the verdict, it will not be disturbed by this court. In this case there was substantial evidence to support the verdict, and the judgment is therefore affirmed. | [
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Conley Byrd, Justice.
Based upon the conduct of the trial court in discharging a jury and granting a new trial, the appellant Jimmie L. Walters seeks to set aside his subsequent second degree murder conviction upon the ground of former jeopardy or at least to reduce the conviction thereof to a degree not greater than involuntary manslaughter.
The record before us as to what occurred in the first trial is rather meager. The portion upon which appellant relies is set forth in a motion to dismiss as follows:
“That at the conclusion of the first trial of this defendant, the jury retired to deliberate a verdict and during the course of said deliberation, the Jury reported to the Court that they could not reach a deci sion and were hung. While determining whether the jury could reach a verdict, the following conversation between the Court and the Jury Foreman occurred:
COURT: Have you reached a verdict?
FOREMAN: No sir.
COURT: What are your numbers now?
FOREMAN: 7 to 5.
COURT: Ladies and gentlemen of the jury, I know some Courts follow the procedure of locking up juries and keeping them for days and often times by doing it, they get a verdict, but this Court doesn’t believe in that. I believe that’s subjecting you to torture. That’s not what you are down here for, to be tortured. You are just citizens doing your duty. You have told me there were two things you were considering — guilt or innocence?
FOREMAN: Yes sir.
COURT: If the proposition had been voted on, what would have been the degree?
FOREMAN: About the least.
COURT: You mean you were hung up between involuntary manslaughter and not guilty?
FOREMAN: Yes sir.”
The doctrine of former jeopardy has been set forth in Atkins v. State, 16 Ark. 568, 578 (1855) in this language, quoting from the still leading case of United States v. Perez, 9 Wheat. 579, 6 L. Ed. 165 (1824):
“ ‘We think that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life in favor of the prisoner. But, after all, they have the right to order the discharge, and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests in this, as in other cases, upon the responsibility of the judges under their oath.’ ”
We do not read anything in Gori v. United States, 367 U.S. 364, 81 S. Ct. 1523, 6 L. Ed. 2d 901 (1961), nor in United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1970), as holding to the contrary.
Because of the fact the trial court went beyond the determination that the jury was hung between guilt and innocence and determined that they were hung between a verdict of involuntary manslaughter and not guilty, appellant suggests there was a preoccupation by the trial court in helping the prosecution obtain a conviction. While we must admit that the inquiry was inadvisable, we cannot read appellant’s suggestion into this meager record. It appears to us that the trial court had already indicated that he was going to grant a mistrial before making the inquiries as to involuntary manslaughter and not guilty. On the meager record before us we cannot say that the trial court abused his discretion in determining that the jury was hopelessly deadlocked. Consequently, we need not speculate as to what our conclusion would have been had such information been first obtained or had the record shown how long the jury had been deliberating.
Neither can we agree with appellant that the first trial resulted in an implied acquittal of all degrees in excess of involuntary manslaughter. The statements between the trial court and the jury foreman cannot be considered under the circumstances as a verdict of the jury. See Ark. Stat. Ann. § 43-1226 (Repl. 1964).
Affirmed.
Harris, C.J., not participating. | [
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Leflar, J.
This is a bill in equity brought by appellant E. A. Carr, doing business in El Dorado, Ark., as the Yellow Cab Co., to restrain one Otis Hughes from operating taxicabs in El Dorado and to cancel a taxicab permit issued to Hughes by the city of El Dorado. Appellant’s contention is that the Hughes permit was not properly approved by the City Council.
There is no real dispute concerning the facts. In applying for a permit Hughes was represented by his attorney, John M. Shackleford, Jr., son of Mayor John M. Shackleford of El Dorado. The application was in all respects in accordance with the governing statute, Ark. Stats., §§ 19-3512 to 19-3518. A hearing was held before the City Council, as prescribed by § 19-3517, on J an. 24,1949, and. considerable testimony, both favorable and unfavorable, was presented. Mayor Shackleford and seven members of the Council — all of the councilmen except A. L. Cone — were present at the hearing. A shorthand record of the testimony was taken, and in addition the City Clerk, George Jackson, included in the minutes of the Council meeting a short summary of the testimony of each witness. The Council voted to defer action on the application until Feb. 24, 1949. At the Feb. 24 meeting, the Mayor and all eight members of the Council were present. When the -vote was taken, four members of the Council voted against granting the permit, and four members, including Cone, voted to grant it. Appellant Carr, opposing the permit, protested against Cone’s vote on the ground that Cone had not been present at the hearing. Mayor Shackleford overruled the protest and held that Cone’s vote was proper, then the Mayor himself broke the tie by voting in favor of the permit. In due course the permit was issued and Hughes has since been operating under it.
Appellant Carr promptly brought his suit to invalidate the permit, contending (1) that Councilman Cone was not qualified to vote because be bad not beard tbe evidence at tbe Jan. 24 bearing, and that tbe true vote of tbe Council was therefore 4 to 3 against granting tbe permit, and (2) that Mayor Shackleford was disqualified from voting because be and bis son, attorney for Hughes, were closely connected both by blood and professionally in tbe practice of law (as associates in tbe same law office).
As to (1), tbe evidence indicated that Cone' bad not read the transcript of testimony taken at tbe Jan. 24 bearing, but had read tbe summary thereof in tbe City Clerk’s minutes, bad talked to various citizens about whether tbe permit to Hughes ought to be granted, and bad discussed tbe matter with another councilman before voting on it. As to (2), it appeared that Mayor Shackle-ford and bis son were not partners in tbe practice of law, but only maintained a joint office, and that tbe Mayor bad nothing to do with bis son’s employment by Hughes and would not receive, either directly or indirectly, any part of tbe $100 fee paid by Hughes to John M. Shackle-ford, Jr.
Tbe Chancellor held for the defendant Hughes, that the permit was properly approved by tbe Council, and dismissed the complaint. Carr appeals.
(1) Tbe legal character of official action by city councils is diverse. .The concept of complete separation of powers, however it may exist in other areas of government, does not abide in tbe city council chamber. Primarily legislative in their functionings, city councils yet perform many acts, pass many ordinances and resolutions, that are administrative or judicial in their nature. Scroggins v. Kerr, ante, p. 137, 228 S. W. 2d 995 (Ark., Apr. 17, 1950). It is not impossible that a single alder-manic action may possess characteristics of all three of tbe classic departments of government — legislative, executive, and judicial.
When a city council’s acts partake of tbe judicial character, they are commonly classified as ^«si-judicial rather than judicial. They will seldom be subject to all of the identical rules and limitations that apply to the conduct of courts, but will often be subject to some of these rules and limitations. Williams v. Dent, 207 Ark. 440, 181 S. W. 2d 29. What judicial procedures aré to be required in a particular type of quasi-judicial proceeding before a city council, or in a proceeding both quasi-judicial and g^asi-administrative (which might be a better classification for taxicab permit hearings held under Ark. Stats., § 19-3517) is a question not to be answered by broad statements about the requisites of judicial hearings generally, but rather by analysis of the practical function of the proceeding and the possibilities of reasonable fairness inherent in it.
That is the way the problem was dealt with in Herring v. Stannus, 169 Ark. 244, 275 S. W. 321. That case involved the validity of a permit, issued by the Little Bock City Council for erection of a filling station in an area zoned for residential purposes. The governing ordinance (comparable to the governing statute in the present case) required that the Council hold a hearing at which testimony should be heard for and against the proposal, after which the Council should grant or refuse the permit. Instead of the hearing being held before the entire Council, it was held before the 7-member “civic affairs” committee of the Council which made its report back to the Council as a whole, after which the entire Council voted to grant the permit. Opponents brought a bill in equity contending, among other things, that this invalidated the permit. This Court held that it did not.
The practical exigencies of attending to aldermanic business in a modern city make it impossible for a city council always to conduct hearings as a court does. So long as the hearing is conducted in a manner designed reasonably to apprise Council members of the relevant facts, in a case involving issuance of a permit like that now before us, we hold there is no violation of due process of law or other constitutional requirements in the fact that some Council members who voted on issuance of the permit were not present at the hearing. Since the nature and effects of hearings before city councils and similar bodies vary so widely, we point out that onr decision in this case does not necessarily apply to all types of bearings. See Morgan v. United States, 298 U. S. 468, 56 S. Ct. 906, 80 L. Ed. 1288, and 304 U. S. 1, 58 S. Ct. 773, 82 L. Ed. 1129.
(2) As to Mayor Shackleford’s participation in the approval of the permit, the Chancellor’s decision for the defendant Hughes included a finding that the Mayor had no such personal interest in the case as would invalidate his vote. The state of the evidence, already summarized in this opinion, is such that we cannot say the Chancellor’s finding on this point is contrary to the preponderance of the evidence.
Apart from that, it does not appear from the record that appellant raised the question of the Mayor’s disqualification in proper time to take advantage of it. There is no doubt that the relationship between the Mayor and his son, John M. Shackleford, Jr., was well known to all participants in the hearing from the first. It was a patent fact. Yet the transcript shows no objection raised, no disqualification suggested, until, the present case was filed in Chancery Court. As to Councilman Cone, both the Council minutes and the stipulation of facts agreed to by the parties recite that Cone’s right to vote was challenged when he voted. In neither the minutes nor the stipulation, nor elsewhere in the evidence, is there any affirmative showing that the Mayor’s right to vote was questioned at the time the vote was taken.
“The disqualification of the Judge may be waived by failure to seasonably object. Washington Fire Ins. Co. v. Hogan, 139 Ark. 130, 213 S. W. 7, 5 A.L.R. 1585. "We hold that the appellants in the case at bar should have presented in the County Court (where Judge KiNG presided) their motion to disqualify Judge KiNG, and that such failure constituted a waiver of the claimed disqualification. That Judge KiNG had signed the petition was a patent fact — i. e., apparent on the face of the petition — and not a latent fact that might not have been discovered with the exercise of due diligence.” Nowlin v. Kreis, 213 Ark. 1027, 214 S. W. 2d 221. Also see Morrow v. Watts, 80 Ark. 57, 95 S. W. 988; Byler v. State, 210 Ark. 790, 197 S. W. 2d 748; Bates v. State, 210 Ark. 1014, 198 S. W. 2d 850.
If appellant Carr wished to disqualify Mayor Shackleford (and we do not now decide whether the Mayor was subject to disqualification) he should have challenged his right to vote, as Alderman Cone’s right was challenged, at the time of the vote, and he should have presented to the Chancery Court affirmative evidence of the timely challenge.
The decree of the Chancery Court is affirmed. | [
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Holt, J.
March 23, 1949, appellee, Mattie Howard, brought this suit to recover damages for personal injuries alleged to have been received when she fell in the aisle of appellant’s electric trolley bus, because of appellant’s negligence in operating the bus.
Appellant answered with a general denial and affirmatively pleaded contributory negligence of appellee. A jury awarded appellee $600, and from the judgment on the verdict is this appeal.
Appellant makes no complaint as to the amount of the verdict but earnestly contends that there was no substantial evidence to warrant it.
After a review of all the testimony, we hold that this contention must be sustained.
Only three witnesses, who were on the bus. at the time of the mishap, testified in the case. September 8, 1948, appellee, a Negro woman, weighing about 250 pounds, boarded appellant’s bus, carrying a sack of groceries. After paying tier fare, she proceeded to the rear, but just before she reached her seat the bus gave a “sudden jerk” or “snatched” and she fell to the-floor receiving injuries. Appellee testified: “A. I got on the bus at 9th and Chester. When I started back to my seat, I made it almost to the seat, when I turned to wheel the bus gave a sudden jerk and flattened me out on the floor. Q. Did the bus start immediately when yon got on it! A. It started immediately, when I got on the bus it started up immediately. When I got back nearly to where I thought I would have a seat it gave a jerk and jerked me down. . . . Q. Do yon know what caused that sudden'jerk! A. I don’t know what would make the bus, the driving of the bus would be the only thing that would make a sudden jerk. Q. It did jerk! A. It jerked me flat'of my back, laid me out on the floor, stretched me out just like (making motion with hands).’ Q. Did it tear your grocery bag! A. Tore the grocery bag and broke the handle off my purse. Q. Did it daze or addle you! A. Yes, sir, it dazed me pretty bad, I didn’t know how bad I was until that night. ’ ’
Willie Jiles, on behalf of appellee, testified that she was a passenger at the time, sitting in the rear. She saw appellee, along with several other people, get on the bus, and further: “A. Just to tell the truth, I didn’t pay any attention, they were all getting on the bus, I didn’t pay any attention until she hit the floor, that is when I looked, I was looking out through the window when the bus stopped, I was sitting where I could see out the window, when the bus started off she fell. I didn’t know who it was at the time because there were some, some more standing up there and I kinder looked around I said ‘ Oh, who was that hit the floor’ a man picked her up, I don’t know who he was but I did see her fall. Q. Had the bus proceeded some ways past the corner where she got on before she fell? A. I just don’t know, to tell you the truth I wasn’t paying so much attention because when I am on a bus I don’t pay any attention to who gets on and off, I was looking through, the window when the bus started off and she fell, I saw that. Q. Did anything at tract your attention other than her falling 1 A. When the bus started off it was a snatch. Q. You felt the snatch when she fell? A. Yes, I heard her falling and I peeped around some other passenger and saw her laying on the floor, I spoke to someone, I said ‘a mighty big woman to fall.’ ”
On behalf of appellant, the bus driver, L. 0. Gary, testified: “A. Well, she boarded my bus at 9th and Chester. She had a sack of groceries, she deposited her fare in the bos, ... I started the bus immediately after she deposited her fare and she walked back to the rear of the bus, naturally as anyone would, and I just drove on down the street as naturally as I always do. I had driven about half a block when I heard a sack hit the floor. ... I immediately glanced up in the rear view mirror and saw a Negro man pick up the sack of groceries and hand it to a colored lady, .just set them in her lap and he sat back down,” that appellee later came up and asked for a transfer but made no complaint.
There appears no disagreement as to the law governing cases of this nature. The same standard of care is required in the operation of trains, buses, street cars and trolley buses. Our rule is well settled that we must affirm where there appears any substantial evidence to support the jury’s verdict. It is also our duty to view the evidence in the light most favorable to the appellee, giving to it, its strongest probative value, in her favor, with every reasonable inference deducible from it, whether from all the evidence presented or from appellee’s testimony only, (Harmon v. Ward, 202 Ark. 54, 149 S. W. 2d 575, and St. Louis Southwestern Railway Company v. Holwerk, 204 Ark. 587, 163 S. W. 2d 175).
As we read the testimony of appellee and her witness, Jiles, in the light of the above rules, it amounts to this: After appellee had boarded the bus with a sack of groceries in her arms, she paid her fare, walked toward a seat in the rear and when “almost-to the seat, when I turned to wheel, the bus gave a sudden jerk and flattened me out on the floor.”
Jiles testified that the bus “snatched” just before appellee fell. Neither of these witnesses, nor any other, testified that there was a violent or unusual jerk.
Before appellee would be entitled to recover, the burden was on her to show,, by some substantial testimony, that her fall and consequent injuries resulted from a violent or an unusual jerk, amounting to negligence on the part of appellant in operating its bus. We so held, in effect, in such cases as St. Louis-San Francisco Railway Co. v. Porter, 199 Ark. 133, 134 S. W. 2d 546; Missouri Pacific Railroad Company v. Baum, 196 Ark. 237, 117 S. W. 2d 31, and Missouri Pacific Transportation Co. v. Bell, 197 Ark. 250, 122 S. W. 2d 958.
In the Baum case, Judge DoNham, speaking for the court, quoted with approval, the following rule from 10 C. J., § 1387, page 973, as follows: “ ‘The jerk or jolt must be unnecessarily or unusually sudden or violent; such jerks and jars as are necessarily incident to the use of the conveyance, and are not the result of negligence, will not render the carrier liable for resulting injuries. ’
“In American Jurisprudence, Yol. 10, p. 213, § 1343, it is said: ‘Sudden jerks and jolts in the movement of railroad trains or street cars are generally accepted as among the usual incidents of travel, which every passenger by experience has learned to expect to some extent. At precisely what point such violent movements lose their character as incidents reasonably to be expected during the course of travel and assume the status of actionable negligence is a question of fact, to be determined in the light of the surrounding circumstances. However, unusually sharp jerks of a vehicle or violent jolting due to a defect in the track or the negligent operation of the car has been frequently viewed as imposing 'liability upon the carrier for the resulting injuries to a passenger.’ ...
“The carrier is not an absolute insurer of the safety of its passengers. It is only required to exercise towards its passengers the highest degree of care which a prudent and cautions man woulpl exercise, and that which is reasonably consistent with the mode of conveyance and practical operation of its trains. ...
“ ‘It is not sufficient for the employee to show that the employer may have been guilty of negligence — the evidence must point to the fact that he was. And where the testimony leaves the matter uncertain, and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion.’
‘ ‘ The law is that negligence is never presumed, but, like fraud, must be proven. . . As hereinabove stated, a jolt or jerk of the train, resulting in injury to a passenger, will not render the railroad company liable, unless the jolt or jerk is unnecessarily or unusually sudden or violent. In other words, a jerk or jar which is necessarily incident to the mode of the conveyance and the practical operation of the train is not the result of negligence, and, even though injury results therefrom, the carrier cannot be held liable.”
In the present case, it is highly significant that ap-pellee was the only passenger on the bus, wherein other passengers were standing, to receive a fall or injury, and made no complaint to the bus driver.
Juries are not permitted to speculate as to the proximate cause of what made appellee fall. In Turner v. Hot Springs Street Railway Company, 189 Ark. 894, 75 S. W. 2d 675, this court said: “The trial court was correct in directing a verdict for appellee, because the testimony adduced by appellant was not sufficient to show that the injuries received were proximately due to any negligence of appellee. No witness testified that appellant’s fall was proximately due to the small pieces of snow and ice afterwards seen in the vestibule of the street car. It is true, the jury might have guessed or speculated that her fall was caused by stepping upon tlie small pieces of ice and packed snow in the vestibule of the street car, but, on the other hand, it was equally as probable that her fall was caused by packed snow or ice which had accumulated on her own shoes. The point is, juries are not permitted to guess or speculate as to the proximate cause of an alleged injury, the burden resting upon appellant to show by a preponderance of the evidence that her injuries were caused by some negligent act or omission of appellee. (Citing cases.) ”
In the Porter case, above, we said: “It is conceded by appellee that the mere starting of the train before she had reached her seat, but after she had safely boarded it, does not constitute actionable negligence. The gist of the negligence alleged is that the train started with a sudden lurch or jerk. But if it be conceded, contrary to all the evidence except that of appellee herself, that the train was started with a jerk-or lurch, the fact would not justify a recovery, unless there was a negligent jerking or lurching of the train. . . . ‘There is no escape from the conclusion that unless appellant was injured through the negligent jerking or lurching of the train, then her injury must have resulted from some carelessness on her own part. . . . It is hardly probable that she would have been the only one to receive an unusual jar. It is out of the ordinary that she would be the only one to receive a fall or injury. ’ ’ ’
As indicated, we agree with appellant that the rule followed in the Porter, Baum and Bell cases applies here and that appellee has failed to show, by any substantial testimony, such an unusual, violent or unnecessary jerk or lurch of the bus, not assumed by the passenger, which would amount to negligence on the part of the Transportation Company.
Speaking of the rule applied in the above three cases, this court in the recent case of Jones v. Missouri Pacific Railroad Company, Thompson, Trustee, 202 Ark. 333, 150 S. W. 2d 742, made this comment: “In the Baum and the Porter cases the injured passenger had safely boarded the train and it was held that before a recovery could be had, it was necessary to show some unusual, violent and unnecessary lurch or jerk of the moving train not assumed by the passenger which would amount to negligence on the part of the railroad company, and that no such negligent conduct had been established.
“In the Bell case the plaintiff was attempting to alight from a bus and in so doing fell in the aisle and was injured when the bus stopped, which Bell contended was occasioned by an ‘unusual, unnecessary or a violent jerlc,’ and it was there said: ‘ It is undoubtedly true that appel-lee fell in the bus, and it may be true that she was injured in the fall, but the proof fails to show that it was the result of the second stopping, or that the second stopping, if any, was sudden, unnecessary or violent, and these were the grounds of negligence relied on in the complaint and without proof of which no recovery can be sustained.’ ”
Accordingly, the judgment is reversed, and since the cause seems to have been fully developed, it is dismissed.
Griffin Smith, C. J., not participating.
Justices Millwee and George Rose Smith dissent. | [
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Holt, J.
The parties here were married October 17, 1948. May 26, 1949, appellee, J. H. Bridwell, sued for divorce alleging indignities. Appellant answered with a general denial and, in a cross complaint, asked for a divorce on the same ground (indignities) as alleged by her husband, and in addition asked for property settlement.
The trial court awarded appellee a divorce and allowed appellant a property settlement in the amount of $7,500. The cause comes to us on direct and cross appeal.
For reversal, appellant first questions the sufficiency of the evidence to support the decree of divorce to appellee.
At the time of the marriage, appellant had been twice married, and was 42 years of age. Appellee, also, had had two previous marriages and was 56 years old. A short time before the marriage here (June 23, 1948) the parties entered into a premarital contract whereby it was “mutually agreed by the parties hereto that when they enter into the Holy bonds of wedlock that the party of the second part shall have as her share and interest in full, including homestead and dower, in his estate should he predecease her, the sum of Ten Thousand ($10,000.) Dollars.”
The evidence is voluninous and much of it is in conflict. We do not attempt to set it out in detail. Neither party was without blame. Almost from the beginning of the marriage there were frequent quarrels, discord and acts on the part of each that made their marriage venture almost certain to end in failure. The Chancellor found especially that appellant was given to cursing, and to the use of the most vile and obscene language toward appellee, such as to show extreme contempt for him. While, as indicated, the husband was not blameless, we are unable to say that the findings of the trial court on the divorce branch of the case is against the preponderance of the evidence. But appellant argues that all acts of indignities of the wife were condoned by appellee by continuing to cohabit with her after their occurrence. We cannot sustain this contention on the facts before us. Here it appears undisputed that appellant left appellee on May 19th or 20th, went to her daughter’s home in DeWitt and while there, without her husband’s knowledge, employed an attorney to file suit for divorce. She returned home, unannounced, from this trip on May 25th, and immediately packed, and attempted to conceal, certain -belongings, while her husband was engaged at his store. On coining to the house late in the afternoon and discovering his wife’s return and her plans, a violent quarrel and encounter followed which resulted in their immeidate and final separation. The evidence does not show any cohabitation after May 20th and the outbreak of May 25th above, for which appellant appears to have been largely responsible, appears but a continuation of previous indignities, and condonation does not apply, in the circumstances.
The general rule is stated in 17 Am. Jur., p. 249, § 197. The text recites: ‘ ‘ Condonation is a conditional, rather than an absolute, remission of the offense, the implied condition being that the offense will not be repeated and that the guilty party shall not in the future commit anj other matrimonial offense or, as if it is frequently expressed, that the offender will treat the injured party with conjugal kindness.”
Our own decisions are in accord with the general rule. In Denison v. Denison, 189 Ark. 239, 71 S. W. 2d 1055, we said: “Upon the merits of the case, it may be said that the testimony is voluminous and conflicting, but, after carefully considering it, we are unable to say that the allegations of appellee’s complaint are not supported b} a preponderance of the testimony. No attempt was made to show that appellant was guilty of conduct involving moral turpitude. The testimony relates to the infirmity of her temper, which, according to appellee’s testimony, was irascible and ungovernable.
“It is argued that the more violent outbreaks were condoned, because the parties continued to cohabit as man and wife after their occurrence. But not so. One indignity might not — and usually would not — afford ground for divorce. It is the persistence of one spouse in a course of conduct which becomes intolerable to the other of which the law takes cognizance and grants relief by way of divorce, and the doctrine of condonation has no application under the facts of this case. Longinotti v. Longinotti, 169 Ark. 1001, 277 S. W. 41,” and in Franks v. Franks, 211 Ark. 919, 204 S. W. 2d 90, we reaffirmed our holding in the Denison case and said:
“Assuming, without deciding that her acts in returning and resuming the marital relation, based on his promises not to repeat the offense, constituted condonation for past mistreatment, still it was only conditional condonation. If the condition is broken by future misconduct, condoned past conduct may then be relied on in support of an action for divorce on the subsequent misconduct or both. In Longinotti v. Longinotti, 169 Ark. 1001, 277 S. W. 41, we said: ‘The law is well settled that either spouse may condone conduct of the other which, but for the condonation, would entitle the innocent spouse to a divorce. But it is equally as well settled that condonation does not deprive the aggrieved spouse of the right to a divorce on account of the subsequent misconduct of the offending spouse. On the contrary, subsequent misconduct will generally operate to revive the right to a divorce for the condoned offense.’ See, also, Denison v. Denison, 389 Ark. 239, 71 S. W. 2d 1055.”
~We also hold that the decree of the trial court awarding appellant $7,500. should be affirmed.
The parties were able to live together for less than eight months. Appellant brought to the marriage venture no property, while appellee was possessed of very substantial means. Although appellant is held to be at fault and therefore not entitled to any part of appellee’s property, as a matter of law, it was entirely within the discretion of the trial court whether any award should be made to her in the circumstances.
We said in Ray v. Ray, 192 Ark. 660, 93 S. W. 2d 665 : “Since appellant has been determined at fault in the wrecking of the matrimonial venture, she is entitled to no part of appellee’s property as a matter of law, 9 R. C. L., p. 497, § 319; section 3511, Crawford & Moses’ Digest, and her further assistance from appellee rests entirely within the discretion of the chancery court. Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700, 129 Am. St. Rep. 102; Clyburn v. Clyburn, 175 Ark. 330, 299 S. W. 38.”
It appears that appellee, during the pendency of this litigation, has paid to appellant approximately $329.50 as fees for her attorneys, alimony of $100 per month from January, 1949, costs of printing her brief in the amount of $166, or approximately $1,095. He asked that he be credited with this amount and that it be deducted from the $7,500. awarded appellant. We think, in the circumstances, that appellee is not entitled to this deduction and his request, therefore, is denied.
Accordingly, the decree is affirmed on both direct and cross appeal, appellee to pay all costs in both courts and no additional attorneys’ fee to appellant’s attorneys is allowed.
G-eokge Rose Smith, J., not participating. | [
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'Butler, J.
The county board of education of Van Burén‘County, proceeding under the authority of act No. 144 of the Acts of 1927, without any petition being circulated or filed, gave notice to the residents and patrons of Common School District No. 3 of a proposal to dissolve that district and annex its territory to Formosa Special School District, and of the hearing on such proposal to be held upon a certain day. This notice was given in the time and manner prescribed by the act, and no question of4its sufficiency is here raised. On the day fixed for hearing a number df residents and patrons of said school district appeared and from an order of the board dissolving District No. 3 and attaching it to the Special School District aforesaid an appeal was taken to the circuit court where on a trial the order of the county board of education was sustained. The case is here on appeal from that judgment.
Act No. 144, supra, as expressed by its title, was “An act to establish a minimum leng'th of school term and for other purposes.” Section 1 of that act provides: “The county board of education of any county shall have the discretionary power to dissolve any school district whose length of school term shall not be one hundred twenty days in any school year, or whose average daily attendance does not exceed fifteen pupils, and attach the territory so dissolved to adjacent school district or districts ; provided that, if the limit of school tax shall have been levied and the proceeds therefrom together with the available State funds are not sufficient to maintain such a length of school term, and that the children so affected are too isolated to be deprived of school advantages by such dissolution, the county board can abolish only by petition of a majority of the qualified electors.”
At the trial on appeal to the circuit court it was shown that a 120 days’ term of school had never been had in any school year, and that the last term was only from seventy to ninety days in length taught by one teacher at a salary of $90 per month, and that after the teacher’s salary had been paid there remained only $50 in the treasury. The last term of school began in November, 1928, and ended in March, 1929. This proceeding was begun on the '28th day of September following and it was shown that the total revenue for the fiscal year last preceding-, from all sources, amounted to $451.93 which might be increased by $27.80 from taxes on lands located in said district, but which were erroneously assessed in other districts; that the district had voted the limit of 18 mills and this tax was included in the total revenue aforesaid. There was no contention that the district was so isolated that with dissolution of said district the children would be deprived of school advantages. On the contrary, the undisputed evidence was to the effect that a graveled pike road led through District No. 3 into Formosa Special School District, and by its schoolhonse, so that the children could be conveniently transported to and from school after the annexation. Appellant argues that for the proper construction of the act it is necessary to substitute in the proviso clause the conjunction “or” in the place of “and” used (by the lawmakers and thus make the proviso read, “provided that if the limit of school tax shall have been levied and the proceeds therefrom together with the available State funds are not sufficient to maintain such a length olf school term, or that the children so affected are too isolated to be deprived of school advantages by such dissolution, the county board can abolish only by petition of a majority of the qualified electors.”
We are unable to appreciate the force of appellant’s argument that it is necessary to make the substitution “in order to make sense at all.” It is clear to us, stated in simple language, that the Legislature meant that the county board might, if it deemed wise, dissolve any school district which maintained a school term of less than 120 days in any school year or where the average daily attendance did not exceed fifteen pupils, and that this might be done without any petition except where the school district had done all it could to maintain a 120 days’ term of school and was unable to do so because of insufficient funds; and, in that case if the children of that district would be deprived of school advantages because of the isolation of the territory if the district should be dissolved, then such district could only be dissolved where a majority of the qualified electors wanted such action taken and petitioned for it. We think the language of the act precise and dear and susceptible of no other reasonable construction. Therefore, as no 120 days’ school had been held within the last school year or for any year preceding so far as was known by the witnesses and the children had convenient access to the school after consolidation of the districts, the order of the county board cannot be said to have been an abuse of discretion, and the judgment of the circuit court upholding- such order must he affirmed.
It is argued that, as it ajjpears from the evidence that a first grade teacher could be had at a salary which would enable a 120 days’ term to be held with the revenue on hand, the county board had no authority to dissolve only by petition. We think this contention cannot be supported by any construction of the act. Moreover, a sufficient answer would be that, although they could have had a 120 days ’ term, they never did.
The judgment is in all things correct, and it is therefore affirmed. | [
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Butler, J.
The appellees, Lonnie Brannon and Ms wife, Delia Mae Brannon, were traveling along a county highway in Jefferson County on September 15, 1929, in a seven-passenger Packard automobile. The road was dusty and it was difficult to see further ahead than thirty or fifty feet. At a point a short distance from where this highway intersected with the Pine Bluff and Altheimer highway, Brannon saw just a few feet ahead an open ditch crossing the road. He estimated that at this time he was traveling about twenty-five miles an hour. When he saw the open ditch and applied his brakes, stopping his wheels from revolving, the momentum of the car was such that it leaped entirely across the ditch with the back wheels just beyond. The impact of the ear upon the road way caused one of the casings to blow out and the car to roll backward into the ditch. The ditch was variously estimated from two to three feet wide and from two to three feet deep. It had sloping- sides that enabled appellees ’ car to pass out of it by changing gear and putting it in low. The car remained in the ditch but a moment— only long enough to put it in low gear to pull it out.
After an examination of the car’s condition — estimated at from five to ten minutes — Brannon went on toward his destination. The jar occasioned by this incident injured Brannon and his wife to some degree, for which injuries they brought suit against the appellant, Williams Brothers, Inc., alleging its liability on the theory that it had broken the bridge across the ditch and created a dangerous condition by removing the broken planking and throwing the timbers from the ditch, leaving it open. There was a trial before a jury and a verdict and judgment for the appellee, from which the appellant has duly appealed and here contends that the court erred during the trial of the case in permitting the introduction of incompetent testimony over its objection and exception, in its refusal to submit to the jury competent testimony, and in its 'declarations of law. The principal contention, however, is that the court erred in refusing to direct a verdict in favor of the appellant.
We pass over consideration of the questions involved in the action of the court regarding the introduction and exclusion of testimony and the declarations of law given to the jury, for the reason that a careful analysis of all of. the evidence, viewing it in a light most favorable to the appellees, fails to establish the liability of the appellant. There is no intimation that the appellant was making any unlawful use of the highway, nor is it contended that the mere breaking of the bridge in question by the appellant and its failure to repair the same would render it liable; the contention in this case being that the conduct of the appellant after the bridge was broken in throwing the timbers and planks out to one side and leaving the ditch open created a dangerous condition, thereby, by its voluntary act, creating a nuisance, in that such was a wrongful obstruction and impairment of the public highway.
There is a conflict in the testimony regarding the previous repair and condition of the bridge before its breaking is said to have occurred. The road overseer testified that it had been repaired in the spring of the year preceding the accident and was in good condition before it was broken down, and the person whose duty it was to keep up the bridges testified that the bridge in question had been repaired just a few days belfiore it was broken, and that when so repaired it was a good bridge composed of proper timbers laid across and covered by “three or four ten or twelve-inch planks and one or two small ones” three inches thick. Other witnesses, among whom was one introduced by the appellees, stated that the bridge was made of poles laid across the ditch covered by two planks about twelve inches in width and two inches thick. A witness for the appellees, describing the bridge, stated: “It is just a two-plank bridge — just two planks there across it — a kind of low sway there all the time. Just some planks across some poles there — the planks were not broke but they swayed in. This condition had been existing all the year.”
Appellees base their contention that the bridge was broken by appellant’s truck on the testimony of Frank Hopson, Hugh Yance, W. S. Stewart and Jim Barbre, Stewart being the road overseer and Barbre the man charged with the duty of keeping the bridges in repair. Hopson testified that on an afternoon of some day “about the middle of September,” about four o’clock, he passed across the bridge in question and it was then in the same condition it had been all the year. On returning the following morning he reached the bridge about seven o’clock and found the planks “broke in, scattered around first one place, then another — both planks busted up pretty bad. ’ ’ He replaced the broken planks over or in the ditch and crossed and continued on his way.
The only other testimony directly relative to the breaking of the bridge was that of Hugh Yance, who, as he testified, “about the 12th or 13th of September and about four or four-thirty o’clock in the afternoon” was hunting squirrels in the woods adjoining the highway where the ditch crossed the road and about two hundred yards from it when his attention was attracted by a noise which he described as if made by the breaking of a plank. Looking in that direction witness saw a truck down in the ditch and a number of persons throwing timbers out of it. This truck remained at that place about five or ten minutes, passing on down the road after extricating itself from the ditch; that it was a truck belonging to the appellant. Witness at no time was nearer than 200 yards to the bridge.
Stewart, the road overseer, testified that the appellant’s trucks were “supposed to be the heaviest trucks that went over this road. ’ ’ Barbre stated that in the lower t edge of the county on roads used by the appellant’s trucks he would build bridges one day and find them broken the next, and that the appellant’s trucks were the heaviest used on the highway.
Assuming that this evidence is sufficient to establish the fact that the incident witnessed by Hugh Vance was the initial breaking of the bridge in controversy^ it fails to establish a basis from which the jury might reasonably infer that the voluntary acts of appellant’s servants rendered more hazardous the condition of the ditch than that which resulted merely from the breaking of the bridge. It will be noted that Yance, the witness who saw appellant’s truck in the ditch, was at no time nearer to the ditch than 200 yards and was in a wood. So he did not state and was unable to know what the conditions were when appellant’s truck broke through the planking into the 'ditch and in what position the planks and other timbers would have been had the truck moved outward from the ditch without any of the timbers being removed therefrom. Assuming that the appellant’s truck broke the bridge at the time Vance saw it and that it was on the 12th or 13th day of September as estimated by Vance, a period of at least two days elapsed from the time the bridge was broken until the appellees’ car crossed it, and there is no testimony showing the condition of the bridge at that time as compared with its condition immediately after appellant’s truck passed over it. It cannot be said that the condition as testified to by Hopson as on the morning he first discovered the bridge broken was the same as that on the afternoon before. This was a county highway in a thickly populated county, and the evidence shows that it was frequently traveled. It therefore would be entirely unreasonable to assume that no other cars or trucks passed over the ditch from 4:30 in the afternoon to 7 o ’clock of the following morning, for it is a matter of common knowledge that motor-driven vehicles travel the highways in great numbers and at frequent intervals both day and night.
The evidence shows that the bridge and ditch in question were both relatively insignificant and traffic continued along the highway after the breaking of the bridge without interruption and with practically the same ease as before. A rural mail carrier advised those in charge of the highway’s maintenance of the brealdng of the bridge, and several days passed before any steps were taken looking toward its repair, and after the condition of the ditch after the breaking of the bridge had been seen by the road overseer the situation was deemed not sufficiently dangerous to warrant the placing of any danger signal at that point. The evidence fails to show any dangerous condition of the highway caused by removal of broken timbers, but merely an impairment incidental to its use, for whether the act complained of, namely, the removal of the planks and timbers and throwing them to the side of the road, rendered the ditch more dangerous than it would have been with the planks not removed is a mere surmise.
As there is no substantial evidence tending to establish appellant’s liability, the case is therefore reversed, as as the facts appear to have been fully developed, the cause is dismissed. | [
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Butler, J.
The county board of education of Saline County by its order consolidated a number of school districts into a special school district known as Collegeville Special School District No. 31. Complaint was made regarding the alleged arbitrary conduct of the board in its proceedings, but no appeal was taken from its order of consolidation. Thereafter appellants, A. A. Scott et al., residents of former school districts Nos. 3, 49 and 62, which districts had been consolidated and formed into the special school district aforesaid, filed their petition praying that the consolidated school district be dissolved, and that districts Nos. 3, 49 and 62 be restored to their status as before the order of consolidation had been made.
The county board denied the prayer of the petition, and an appeal was taken to the circuit court where the action of the county board was sustained. From this last order this appeal is prosecuted.
It is insisted by the appellants that the county board of education was obligated by law to dissolve the district upon the presentation of a petition signed by a majority of the qualified electors residing within the district, and that the county board had no discretionary power to refuse to grant the petition. By act No. 234 of the Acts of 1919 the county board of education was created, and by § 4 of that act was clothed with the powers relating to schools and school affairs theretofore residing in the county court. That court had been empowered by act No. 66 of the Acts of 1895 with power to dissolve any school district when a majority of the electors residing in the same should petition the court so to do. Section 1 of said act granting this power providing as follows : “The county courts of this State shall have power to dissolve any school district now established or which may hereafter be established in its county and attach the territory thereof in whole or in part to an adjoining district or districts, whenever a majority of the. electors residing in snch district shall petition the court, so to do.” This court, in determining the powers of the county court, held that there was a discretion vested in the court to be exercised for the best interests of the citizens of the district to be affected, although that discretion was not in express terms given in the statute. Hughes v. Special School District, 135 Ark 454, 205 S. W. 824.
Section 4 of act No. 234 of the Acts of 1919 provides: “That the county board of education shall have direction and supervision of the public schools of the county, unless otherwise provided by law, in their respective counties. The county board shall also have all the powers and discharge all duties pertaining to the schools, school affairs, and school revenues of the county, heretofore imposed upon the county judge, such as the following: Apportion all school funds as provided by law and in conformity to the regulations of the State Board of Education; form local school districts; change district boundary lines; transfer children; dissolve upon petition local school districts, where conditions and the best interests of the children demand; transfer funds and attach territory which is in no school district to the proper district or districts.” It will be noted that in this act a discretion is conferred upon the board by the express terms thereof, namely, that it may discharge certain duties relating to schools among which, power is given “to dissolve upon petition local school districts where conditions and best interests of the children demand.” So, by the authority of Hughes v. School District, supra, and the express terms of the statute, we are of the opinion that a discretion was vested in the court to be reasonably exercised in the granting or refusing, to grant petitions for the dissolution of the district, and it might refuse 'to dissolve any district, even though a majority of the qualified electors therein might petition therefor, where it appeared to the board that the condi tions and best interests of tbe children demanded such action.
When this cause was heard on appeal in the circuit court, several witnesses were introduced who testified that school facilities were better in the district as consolidated than in districts Nos. 3, 49 and 62 before consolidation ; that there was a much better average attendance from those districts than before, and that the roads were good and the means of transportation adequate, and that it was for the best interests of the children that the consolidated district be not dissolved. There was no testimony to the contrary. Therefore, assuming that the petition contained a majority of the qualified electors in the districts, there is no showing that the action of the board in denying their prayers was arbitrary, but appears to us to be a reasonable exercise of the discretion vested in it by law.
The petition containing a majority of the qualified electors was necessary to give the board jurisdiction, and an examination of the evidence adduced on the trial of the case in the court below discloses the fact that there was no majority. Dr. W. W. Ward, one of the witnesses for the appellant, testified that there were sixty-seven persons in the territory affected who were qualified electors and who did not sign the petition, and that the petition was signed by seventy-two other persons qualified under the law to sign such petitions, thus making a majority. This is all the testimony as to the number of qualified electors who lived within the district, but of the seventy-two who signed the petition the uneontradicted testimony of a number of witnesses discloses the fact that a considerable number of the persons who signed the petition were not qualified electors of the district. •Several signed who had transferred their children and taxes to, but who themselves did not reside within the district. These were not qualified electors. Jones v. Floyd, 129 Ark. 185, 195 S. W. 360. Two had been convicted of felonies, and their citizenship not restored. One whose name appeared on the petition did not sign it himself nor authorize any one to sign it for him. Altogether it was shown that of those signing the petition there was a number who were not qualified electors sufficient to reduce the number of qualified electors below a majority. Also, it may be said that the persons circulating the petition did not testify, nor was there any showing made that the purported names were the genuine signatures of those persons, and without such showing there was no duty resting’ upon the board to consider the petition.
“The court properly eliminated from its consideration a petition that was circulated by one Boss Hughes, because there was no competent testimony that the names thereon were genuine signatures of electors residing within the district.” Hughes v. Special School District, supra, quoting page 458. Therefore, in any view of the case, the judgment of the trial court was correct, and it is affirmed. | [
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McHaney, J.
Appellant was convicted for manufacturing liquor and sentenced to one year in the penitentiary. For a reversal of the case, it is first argued that the evidence is insufficient to support the verdict. On the day of the arrest, the sheriff and two deputies, who had received information that appellant was making liquor, went to the home of appellant, but he was -absent. They made a search and saw appellant’s wife pour out some whiskey into the water troug’h. They then went up in the hollow north of appellant’s house about one-half mile and found him and his son at a still making liquor. Appellant ran away, but the sheriff, who was only about fifty yards away, saw him plainly and positively identified him as being present. The son started to run but stopped. Appellant’s team was standing there near the still. When arrested at his home a short time later his clothes were wet, indicating- he had traveled through the wet bushes recently as it had rained that morning. The deputies testified they thought it was appellant who -ran away from the still. On the other hand, appellant denied that he had anything to do with the still, that he was there when the officers arrived, and offered evidence of an alibi. The son testified that his father was not there and had nothing to do with the still, that he was employed by Boy Wells to haul a sack of sugar and two barrels to the still, which he did.
Although the evidence was in sharp dispute, the question of appellant’s guilt or innocence, as also his identity, was properly submitted to the jury, and its verdict against him on appeal is binding on this court.
The court instructed the jury in the language of the statute, declaring it to be unlawful for any person to manufacture, sell or give away, or be interested, directly or indirectly, in the manufacture, sale or giving away of any alcoholic liquor. (§ 6160, C. & M. Digest.) Complaint is made of this instruction on the ground that he was charged with manufacturing' only and that the statute covered many other offenses than manufacturing. The court, immediately following the reading of the statute, told the jury that if they found from the evidence, beyond a reasonable doubt, that appellant “did manufacture or was unlawfully and feloniously interested in the manufacture of any amount of alcoholic liquors or intoxicating spirits,” they should find him guilty, otherwise not. The effect of the whole charge embraced in instruction No. 2 complained of is to limit the question of his guilt or innocence to the charge in the indictment, that of manufacturing. Therefore no prejudice could have resulted from, reading said section to the jury.
In defining a reasonable doubt, the court used this" language, which is objected to : “ The court does not mean a far-fetched doubt or chimerical doubt or a doubt hatched up for the purpose of an acquittal.” No specific objection was made to this language, and we think it not open to a general objection, if objectionable at all.
Complaint is also made of the refusal of the court to give appellant’s requested instruction on circumstantial evidence. No error was committed in this regard. The State did not rely wholly on circumstantial evidence, and it has been frequently held that it is not error to refuse an instruction of this kind where the court properly instructed the jury on reasonable doubt and the presumption of innocence. Bost v. State, 140 Ark. 254, 215 S. W. 615 ; Conley v. State, 176 Ark. 654, 3 S. W. (2d) 980 ; White v. State, 176 Ark. 771, 4 S. W. (2d) 9.
Finally it is said the court erred in refusing to permit appellant to prove his reputation for truth and veracity. The witnesses offered for this purpose were permitted to testify to his good reputation for being a law-abiding citizen. Appellant’s reputation for truth and veracity was not involved in the charge against him, nor did the State attack his reputation in this regard, but his reputation as a law-abiding citizen was involved. Therefore it was not error to exclude this evidence. . See 16 C. J., p. 582, § 1124; Underhill’s Crim. Ev. (3d ed.), p. 171, % 136.
Judgment affirmed. | [
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Holt, J.
A jury convicted appellant of an assault with intent to rape and fixed his punishment at a term of ten years in the Penitentiary. Prom the judgment is this appeal.
Appellant has preserved nineteen assignments of alleged errors in his motion for a new trial. His principal defense, if not his only defense, to the commission of the crime, was insanity.
His first three assignments, in effect, question the sufficiency of the evidence to support the verdict. The prosecuting witness, Mabel Reeder, a Negro girl twelve years of age, testified that she had been picking cotton and that at about four o’clock P. M. (October 26, 1948), while she was returning to her home along a highway, appellant drove up in his automobile, got out and asked her if sbe knew E. C. Little. Sbe answered that sbe did and pointed out tbe field where some of her family were still at work. Appellant then took bold of tbe witness, put bis band over her mouth, threatened to kill her if sbe cried out, put her on tbe floor of bis car, drove her into some woods nearby, forced her to submit to him and ravished her against her will. He then took her near her home, put her out of bis car, and drove away. Tbe child immediately told her mother and grandmother what had occurred. They examined her and found evidence tending to show that sbe bad been ravished. This evidence was legally sufficient to support tbe jury’s verdict, and in fact, would have supported tbe greater offense of rape. Begley v. State, 180 Ark. 267, 21 S. W. 2d 172.
Assignments four and fifteen, in effect, alleged that tbe court erred in refusing appellant’s motion for a continuance made before tbe trial and again at tbe close of all tbe testimony. Tbe court did not err.
This record reflects that tbe crime was committed October 26,1948, and appellant indicted May 2,1949. He was first tried on tbe charge November 1,1949, and upon a mistrial being declared, be was again placed on trial November 7, 1949, and found guilty, as above indicated. At tbe time appellant was indicted (May 2, 1949) be was a patient in tbe Veteran’s Hospital in Memphis. He was released from that institution May 13,1949, and returned to work for tbe Pekin Wood Products Company in Helena. He testified (quoting from appellant’s abstract) “that since bis operation and return from tbe Hospital in May, 1949, be has been normal. ’ ’
On November 3rd, four days before tbe trial, appellant presented to tbe tidal court bis motion, praying for an order ‘ ‘ directed to tbe Manager of tbe Eegional Office, Veterans Administration, Little Eock, Arkansas, that be be authorized and directed to procure and bring or send to this court immediately, Certified Eecords of tbe diagnosis, hospitalization and medical treatment accorded to tbe defendant, by tbe Veterans Administration, since the discharge of tbe defendant from tbe Army in 1944” and “that complete diagnosis and medical history be furnished of treatments given to the said Bobert L. Gerlach from June 30,1943, to the time of the discharge from the Army at Hammond General Hospital, Modesta, California, in April, 1944; * * * that the only defense which the defendant, Gerlach, has against the crime charged against him, which trial is to be held Monday, November 7th, is that on account of a diseased mind, he did not know that he committed an assault, and-that at the time of the alleged commission of the crime, he was insane within the meaning of the statutes governing the case.
“In view of the fact that the physician from the State Hospital undoubtedly is being brought into the trial to testify that he made an examination of the defendant, Gerlach, in January, 1949, and further that he was sane at that time, and further that he undoubtedly will testify that the defendant was sane at the time of the alleged commission of the crime, and in view of the defense as above stated, the only means by which the defendant has to defend himself, is to procure from the Veterans Administration the records above prayed, which records contain a complete case history of the defendant as developed in his treatment for a head injury which occurred in the armed forces and subsequently the records of the Veterans Administration will disclose that he was insane at the time of the crime charged.
. “It is further moved that this case be deferred or re-set for some subsequent time of trial in the event that it is found that these records cannot be furnished in time for the trial of November 7, 1949.”
It thus appears that approximately six months had elapsed from the date the indictment against appellant was returned and the date of trial, November 7,1949, and the motion for continuance was not filed until four days before the trial. We think it obvious, in these circumstances, that due diligence was not shown on the part of appellant. We have repeatedly held that in order to secure a continuance, as here, proper diligence must be shown, Bowman v. State, 213 Ark. 407, 210 S. W. 2d 798, and that the granting or refusing of such motion is within the sound legal discretion of the trial court and this court will not interfere unless abuse of that discretion is shown, Bailey v. State, 204 Ark. 376, 163 S. W. 2d 141. No abuse of discretion was shown.
Assignments 5, 6,10,16,17 and 18, in effect, charged that the court erred in admitting testimony of witnesses, Fannie Mae McKissiek and Dorothy Eady, concerning alleged attempts of appellant to rape them.
The record reflects that at the time of the present trial of appellant (November 7, 1949) two other indictments were outstanding against appellant, one charging rape of Fannie Mae McKissiek June 7,1948, and the other charging the same offense against Dorothy Eady December 10, 1948.
The court overruled appellant’s objections to the introduction of this testimony and over appellant’s exceptions instructed the jury as follows: “You are instructed that the testimony which has been introduced in this case concerning alleged attacks by this defendant on the State’s witnesses, Fannie Mae McKissiek and Dorothy Eady, may be considered by you only in determining the intent of the defendant in this case and for no other purpose and you are instructed that this defendant is on trial for the alleged assault upon the State’s witness, Mabel Feeder, only on October 26, 1948, as alleged in the indictment. ’ ’
The court did not err, in the circumstances, in admitting the testimony. We have frequently held that evidence of other crimes of a similar nature to the one on trial and recent in point of time is admissible as bearing upon intent or purpose.
In the recent case of Hearn v. State, 206 Ark. 206, 174 S. W. 2d 452, wherein the defendant had been convicted of an assault with intent to rape, we said: “This court has repeatedly recognized and declared that evidence of other crimes, recent in point of time, and of a similar nature to the offense then being tried, is admissible as bearing on the question of intent. Some such cases are: Puckett v. State, 194 Ark. 449, 108 S. W. 2d 468; Lewis v. State, 202 Ark. 6, 148 S. W. 2d 668; Monk v. State, 130 Ark. 358, 197 S. W. 580; Gain v. State, 149 Ark. 616, 233 S. W. 779. These cases involved such offenses as robbery, larceny, homicide, or operating a gambling house. We perceive no good reason why the same rule should not apply to sex crimes; in fact, courts of other states have held that, in sex crimes, evidence of other acts of a similar nature, recent in point of time, is admissible as bearing on the question of intent. ” (Citing cases.)
Appellant next argues that the trial court erred in admitting the following testimony of witness, John Whitney: “Q. A short time thereafter, did you have occasion to talk to Mabel Beeder, the little girl that was said to have been attacked? A. Yes, sir. Q. Where was she at that time ? A. Standing in front of her house. Q. Whose house? A. Mabel Seeder’s mother’s house. Q. Did she point out to you the woods where this attack is said to have occurred? A. Yes, sir. Mr. Sheffield: We object because we have no idea how long this was after the attack occurred. The Court: The objection is overruled. The testimony will be permitted going to the venue in the case. Mr. Sheffield: Note our exceptions. Q. Did she point out the woods where the attack was supposed to have occurred? A. Yes, sir. Q. Is that in Phillips County? A. Yes, sir. Q. Whose place is it on? A. Val-lient Morris’. Q. His place is in Phillips County? A. Yes, sir.”
We cannot agree.
The question of venue was also an issue in the case and all of the above testimony could be properly considered on that issue for the purpose of establishing venue.
Appellant says ‘ ‘ all of this evidence was an attempt to corroborate the evidence of the prosecuting witness by hearsay testimony. ’ ’ Our rule is well settled that the testimony of the prosecuting witness (Mabel Beeder here), who was not an accomplice, need not be corroborated. Bradshaw v. Stale, 211 Ark. 189, 199 S. W. 2d 747.
Whitney’s testimony that appellant’s attack upon this child had been discussed in his neighborhood was not prejudicial or hearsay in the absence, as here, of any evidence concerning what was said about the crime.
On the question of venue, the prosecuting witness positively testified that the appellant seized her, threw her in his automobile and threatened to kill her if she made an outcry. He did this between the cotton field and her home, both of which were well within the boundaries of Phillips County.
This testimony was sufficient to show that the assault to commit rape was actually begun in Phillips County, and that appellant intended to commit that crime. The offense was complete and sufficient to establish venue in Phillips County whether the consummation of appellant’s purpose was completed in Phillips County or not.
We said in Boyett v. State, 186 Ark. 815, 56 S. W. 2d 182: “It is well settled that an assault with intent to rape is an effort to obtain sexual intercourse by force and against the will of the person assaulted, and the intent is to be ascertained from the commission of some act or acts at the time or during the progress of the assault. The force actually used need be of no specific degree or character, but comes within the meaning of the law if it is reasonably calculated to subdue and overcome; nor need it be persisted in until the assailant’s design is accomplished; if the assault is actually begun and the intent can be inferred from the acts committed, the offense is complete, notwithstanding the fact that the assailant may, for some reason, relent and forbear from the consummation of his purpose.”
In the circumstances, the trial court was correct in giving the following instruction relating to venue: “In this case the question of venue has been raised, that is whether this court has jurisdiction of the case. You are instructed that if you find by a preponderance of the evidence that the assault alleged herein occurred in Phillips County then this court would have jurisdiction, or if you should find from a preponderance of the evidence that the alleged assault started or was commenced in Phillips County and consummated or completed in the adjoining County of Monroe and that same was a continuing sequence of events, this court would have jurisdiction.”
We have carefully examined appellant’s requested Instruction No. 1 on venue and hold that the court did not err in refusing it for the reason that it was incomplete and did not fully declare the law. The court, in the above instruction which it gave, did, however, fully cover the law applicable to this question of venue.
Appellant next contends that “the court erred in permitting counsel for the State of Arkansas to introduce in evidence the report from the State Hospital for Nervous Diseases which is in the form of a letter addressed to the Hon. Elmo Taylor, Circuit Judge, over the objections and exceptions of the defendant.”
We cannot agree.
Ark. Stats. (1947), § 43-1301, provides: “The judge shall order the superintendent or supervising officer of the State Hospital to direct some competent physician or physicians employed by the State Hospital to conduct observations and investigations of the mental condition of the defendant, and to prepare a written report thereof. * * * A written report prepared by the physician or physicians employed by the State Hospital shall indicate separately the defendant’s mental condition during the period of the examination, and his probable mental condition at the time of the alleged offense. This report shall be certified by the superintendent or supervising officer of the State Hospital, under his seal, or by an affidavit duly subscribed and sworn to by him before a notary public who shall add his certificate and affix his seal thereto,” and § 43-1302 provides: “The physician or physicians who prepared the report shall be summoned as witnesses at the trial at the order of the trial judge or at the request of either party, and if summoned shall be examined by the court and may be examined by either party, and a copy of the written report hereby required shall be given in evidence in every case in which the fact of sanity is an issue at the trial.”
The written report in evidence in this case, dated January 10, 1949, about which appellant complains, was prepared and signed by Dr. Kozberg, and certified to by both the examining physician of the State Hospital, Dr. Kozberg, and by the Superintendent of the State Hospital, Dr. Geo. W. Jackson, and filed with the clei'k of the court January 12, 1949. We hold not only that there was a substantial compliance with the above statutes, but a literal compliance therewith. Dr. Kozberg, employed by the State Hospital, was a witness and testified in the case, but appellant says “it was improper to corroborate his testimony by the written report of an absent witness,” meaning Dr. Geo. W. Jackson, Superintendent of the State Hospital.
The statute provides that the report from the State Hospital “shall be certified by the superintendent or supervising officer of the State Hospital,” who was Dr. Jackson, and that a copy of this “written report hereby required shall be given in evidence in every case in which the fact of sanity is an issue at the trial. ’ ’ As indicated, this was exactly what was done in the present case. The statute also provides that “the physician or physicians who prepared the report shall be summoned as witnesses at the trial at the order of the trial judge or at the request of either party.” It is not shown, however, that Dr. Jackson was one of “the physicians who prepared the report.” If he were not (and in this case it appears that he was not), and if he merely certified the report after Dr. Kozberg actually conducted the examination and prepared it, it was not mandatory on the State to produce Dr. Jackson as a witness. Smith v. State, 200 Ark. 1152, 143 S. W. 2d 190.
Appellant next contends that “the court erred in sustaining the objection of the State to the questions propounded by the defendant to the witness, Nathaniel Dun-nivant, ’ ’ and in this connection, says: ‘ ‘ The testimony of Nathaniel Dunnivant was to the effect that he had lived in the same community with the defendant for a number of years, that he knew him well and saw him often; that they had been fellow patients in the Veterans Hospital. He was asked by an attorney for the State: Q. He was all right? A. I don’t think so. Q. Ton don’t think so? A. Not all the time. He was then asked on the part of the defendant: Yon said yon didn’t consider him all right, did yon regard his mental condition as being poor? The State objected to that question and the objection was sustained by the conrt. The conrt then made the observation: This man cannot express an opinion as to the mental condition of a person. He may relate instances and then it is for the jnry to decide.”
There are many decisions of this conrt to the effect that the opinion of a nonexpert may be admitted in evidence on the question of the accused’s mental condition, provided such nonexpert witness has first shown by his testimony that he possesses information upon which such opinion may reasonably be based. “Whether the information is sufficient for that purpose is a question for the court to decide before it can be admitted,” Griffin v. Union Trust Company, 166 Ark. 347, 266 S. W. 289, and cases there cited.
After reading all of Dunnivant’s testimony, we hold that his information, as shown by his own testimony, was insufficient upon which reasonably to base an opinion and the court did not err in refusing to permit him to give his opinion.
We deem it unnecessary to discuss other assignments of appellant. It suffices to say that we have examined all and find them to be untenable.
Accordingly, the judgment is affirmed.
Ed. F. McFaddiN, J., concurring. This concurring opinion is for the purpose of emphasizing at length the fact that the appellant’s Constitutional Rights have not been invaded.
Article II, $ 10 of our State Constitution says: “. . . In all criminal cases the accused shall enjoy the right . . . to be confronted by the witnesses against him . . .”. Appellant insists that he was not “con fronted” by Dr. George W. Jackson, Superintendent of the State Hospital, when the letter, bearing* Dr. Jackson’s signature, was introduced in evidence.
In at least three cases we have considered the above quoted constitutional provision, as related to the report from the State Hospital concerning the mental status of an accused, when the report was furnished under the provisions of Initiated Act III of 1936 (see § 43-1301 et seq. Ark. Stats. 1947). These three cases are Smith v. State, 200 Ark. 1152, 143 S. W. 2d 190; Jones v. State, 204 Ark. 61, 161 S. W. 2d 173; and West v. State, 209 Ark. 691, 192 S. W. 2d 135. In each of these cases we recognized that the report could not be admitted in evidence, unless the physician who made the examination and report was personally present in court to identify the report and there confront the accused. Mr. Justice Robins’ language in West v. State (supra) is apropos:
“On the trial of the case certain testimony tending to show abnormal mental condition of appellant was introduced. After this testimony had been heard, no official of the State Hospital for Nervous Diseases was offered as a witness, but the lower court, over the objection of appellant’s counsel, permitted the prosecuting attorney to read to the jury the report made by the superintendent of the State Hospital for Nervous Diseases as to the mental condition of the appellant. This was error, because, as was stated by us in the case of Jones v. State, 204 Ark. 61, 161 S. W. 2d 173, such proceeding violated the provision of our constitution (Art. II, § 10) guaranteeing to the accused the right to be confronted by witnesses against him and the privilege to cross-examine them. The same rule was announced in Smith v. State, 200 Ark. 1152, 143 S. W. 2d 190.”
Nothing in the majority holding in the present case is at variance with our former cases on this point, because in the case at bar the physician who examined, the accused and made the report introduced in evidence was personally present in the trial court and confronted the accused. That physician was Dr. Kozberg. The letter written by Dr. Kozberg was dated January 10, 1949, and addressed to the Circuit Judge. It read:
“We have completed our examinations in the case of Robert Earl Gerlach, who was admitted to the State Hospital under Act No. 3, and I hereby certify that the following is a true and correct report of my findings in this case:
“DIAGNOSIS: Without psychosis, post-traumatic cerebral syndrome caused by old head injury June 1943 and manifested by headaches.
“1. It is my opinion that Robert Earl Gerlach is mentally competent and responsible at the time of this mental examination, and
‘ ‘ 2. It is further my opinion that Robert Earl Ger-lach was mentally competent and responsible for his acts at the time of their alleged commission.
“Very truly yours,
“Oscar Kozberg, M. D.
“Ass’t Superintendent and Examining Physician
“Approved: George W. Jackson
George W. Jackson, M. D., Superintendent
“Subscribed and sworn to before me this 10th day of January, 1949
“Bertie Griffin
“Notary Public
“My commission expires Jan. 18, 1950”
It will be observed that the letter was signed by Dr. Kozberg and states “it is my opinion.” He was the man who made the examination; and he was the man who personally testified and confronted the accused. It is true that the letter bears the notation “Approved: George W. Jackson”; but Dr. Jackson’s signature merely indicates that this letter passed through the regular routine of State Hospital correspondence and is the report required by the Initiated Act. It is clear that the accused was confronted by the witness, Dr. Kozberg, and so no Constitutional Rights of the accused were invaded; and the case at bar is in complete harmony with our previous opinions on this point. | [
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George Rose Smith, J.
This appeal and cross appeal present separate controversies between the appellee as the widow of B. S. Jordan and the appellants, Jordan’s two children by an earlier marriage. On the appeal the question is whether the widow’s homestead in Little Rock includes a commercial building on the rear part of the lot. The proof shows that before 1924 Jordan acquired the homestead now in dispute. The house itself occupies a corner lot and faces Tenth Street. In 1924 Jordan constructed a sheet-iron business building on the back part of the lot. ' This building fronts on the side street and is numbered 1009 Summit Street. Jordan operated a machine shop in the building for many years. In 1941 he discontinued his business, boarded up the door on the side facing his home, and thereafter rented the building as a garage and warehouse. The chancellor found that the entire lot constituted the homestead and that the appellee has been entitled to the rents from the business building since the younger appellant reached twenty-one. The appellants contend that by his conduct their father segregated the commercial structure from his homestead, so that the appellee is entitled only to a dower interest in the property.
In some of our earlier decisions we have recognized that one may reduce the area of his homestead by cutting off a portion and devoting it permanently to commercial uses. Klenk v. Knoble, 37 Ark. 298; Vestal v. Vestal, 137 Ark. 309, 209 S. W. 273. But on its facts the case at bar is controlled by our holding in Berry v. Meir, 70 Ark. 129, 66 S. W. 439. There Berry first bought the north third of a lot, on which there was a store. He later bought the south two thirds and built a residence upon it. A fence separated the store from the house. In that case, as in this one, the entire lot was' less than the constitutional minimum of a quarter of an acre. Ark. Const., Art. 9, § 5. In sustaining Berry’s homestead right in the entire lot.we said: “Although this storehouse was used by the debtor himself in his own business, there are decisions by the courts of other states to the effect that such a storehouse, entirely separate from the residence of the owner, and not used as an appurtenance or convenience of the dwelling house, is not a part of the homestead. In re Allen, 78 Cal. 293, 120 Pac. 679. But a majority of the judges are of the opinion that this court is committed to a different view of the law. In Gainus v. Cannon, 42 Ark. 503, Mr. Justice Eakin, speaking for the court, said: ‘It is a strange and irrational idea sometimes advanced that a man ought to lose his homestead as soon as he attempts to make any part of it helpful in family expenses.’ ”
In the present case the facts favor the .homestead claim more strongly than did those in the Berry case. There Berry bought the store before he built the house, while here the lot had already been' impressed with its homestead character when the warehouse was constructed. In the earlier case a fence divided the homestead into two parts; here such a separation is lacking. We accordingly hold that the entire lot was Jordan’s homestead. As the widow’s homestead right is a derivative one it also extends to the whole lot. Stuckey v. Horn, 132 Ark. 357, 200 S. W. 1025.
The cross appeal involves a promissory note for $900, payable to B. S. Jordan and the appellee. The facts are that when Jordan married the appellee he owned a vacant lot in Little Bock. After their marriage the couple contracted to sell the lot to H. W. White and his wife. This contract recites that the Whites have executed an installment note “to the sellers” for the unpaid balance of the purchase price. The note is made a part of the contract and is payable to “B. S. Jordan and Peggy C. Jordan, his wife.” It is conceded that Jordan, with his wife’s consent, appropriated to himself the down payment on the lot and the only installment that was paid on the note before his death. On these facts the chancellor held that the appellee could have acquired an interest in the note only as a gift from her husband, and the gift was incomplete for want of delivery of the note to the appellee. The decree vested title to the note in the appellants, subject to the widow’s dower.
We view the transaction somewhat differently. We need not determine whether a promissory note payable to a husband and wife gives the wife an interest in the note in every case, even without delivery, for here something more than a mere gift is involved. The appellee had an inchoate dower interest in the vacant lot. She signed the contract'as a seller, binding herself to join in a deed when the note was paid in full. In these circumstances she was not a mere donee but rather was a party to the contract, which recited that the note was payable to her and her husband. Her rights in the note arose not from a gift but from her agreement to release her dower in return for being named as a payee in the note. In this respect the case is to be distinguished from Neal v. Neal, 294 Ark. 226, 106 S. W. 2d 595, relied upon by the appellants. There the intended donees had no contractual interest in the subject matter of the gift, and we held that the gift failed for want of delivery.
Since the note was payable to the appellee and her husband a tenancy by the entirety was created. Ever since Union & Merc. Tr. Co. v. Hudson, 147 Ark. 7, 227 S. W. 1, tenancies by the entirety in personal property have been upheld in this State. In jurisdictions where that is the law it is held that a chose in action payable to a husband and wife creates a tenancy by the entirety. American Cent. Ins. Co. v. Whitlock, 122 Fla. 363, 165 So. 380; Smith v. Haire, 133 Tenn. 343, 181 S. W. 161, Ann. Cas. 1916D, 529; In re Greenwood’s Estate, 201 Mo. App. 39, 208 S. W. 635. In the absence of any language in this note to indicate that some other estate was intended we conclude that B. C. Jordan and the appellee took it as tenants by the entirety. Upon Ms death the title vested in her by survivorship.
Affirmed on direct appeal; reversed on cross appeal. | [
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John A. Fogleman, Justice.
Appellant contends we should reverse his conviction of robbery, asserting that there was error in the admission into evidence of his purported confession, and in the court’s refusal to give his requested jury instruction relating to the voluntariness of his confession, and that the evidence was insufficient to support the verdict. We find reversible error in the admission of the alleged confession.
We have for some time been committed to an independent determination of the voluntariness of a confession based upon an examination of the entire record, whenever an attack is made upon federal constitutional grounds. Harris v. State, 244 Ark. 314, 425 S.W. 2d 293; Mosley v. State, 246 Ark. 358, 438 S.W. 2d 311; Scott v. State, 251 Ark. 918, 475 S.W. 2d 699. The question of voluntariness must be determined by looking to the whole situation and surroundings of the accused. Dewein v. State, 114 Ark. 472, 170 S.W. 582; Boyd and Byrd v. State, 230 Ark. 991, 328 S.W. 2d 122; Mitchell v. Bishop, 248 Ark. 427, 452 S.W. 2d 340. Upon our examination, the findings of the trial court are not shunned but are given considerable weight in resolving evidentiary conflicts and respectful consideration on the crucial issue. Our examination of the record leads us to the inescapable conclusion that, when the totality of the circumstances surrounding Watson at the time is viewed, the state failed to meet its burden of showing his statement was made freely and understandingly without hope of reward or fear of punishment, as we have always required for the admission into evidence of a statement made by one in custody. Mitchell v. Bishop, supra; Boyd and Byrd v. State, supra.
Among the factors to be considered in determining this issue are: the age and the intellectual strength or weakness of the defendant, the manner in which he is questioned, the presence or absence of threats of harm or inducements in the form of promises or favor (Dewein v. State, supra; Williams v. State, 69 Ark. 599, 65 S.W. 103; Barnes v. State, 217 Ark. 244, 229 S.W. 2d 484), and the delay between the advice of constitutional rights required by Miranda and the giving of the confession. Summerville v. State, 253 Ark. 16, 484 S.W. 2d 85; Scott v. State, 251 Ark. 918, 475 S.W. 2d 699. Where threats of harm or promises of favor or benefit are used to wrest a confession, it may be attributed to those influences. Brown v. State, 198 Ark. 920, 132 S.W. 2d 15. In order to be admissible, a confession must be free from official inducement proceeding either from hope of gain or the torture of fear. Bullen v. State, 156 Ark. 148, 245 S.W. 493. Holding out to a simple person that she would be awarded a very light punishment, if she confessed having stolen money, has been held sufficient inducement to make her confession involuntary and its admission into evidence reversible error. Porter v. State, 206 Ark. 758, 177 S.W. 2d 408.
Viewing the testimony in the light most favorable to the state, as we must in order to give the circuit judge’s holding appropriate weight, examination of the entire record discloses that:
Appellant, known as Joe Joe, was 17 years of age. His parents, who now live at Fort Smith, realized when he was in the third grade that he had a problem arising from his inability to learn. He was then sent to a Child Guidance Center for a long period of time, and was assigned to “special education” all along. He had been referred to the Arkansas Rehabilitation Services for vocational evaluation by the training school. Intelligence tests administered to young Watson revealed that he was “dull normal” and had achieved a level of third grade in spelling, 3.9 in reading and 5.7 in arithmetic. Such a person can make a living, handle money and live a semblance of a normal life. When arrested on January 4, 1973, he was attending the State Rehabilitation Center at Hot Springs. He was arrested by Hot Springs police detective Abernathy, who testified he advised Joe Joe of his constitutional rights. He was transported from Hot Springs to Malvern by Hot Spring County deputy sheriff Lloyd Smith, who conducted most of the interrogation of appellant. He did not see either of his parents until after he had signed the confession, and he did not want to call his uncle or his grandmother, with whom he lived in Malvern.
Abernathy testified he used a standard printed form utilized by the Hot Springs Police Department in advising Watson of his rights. When asked specifically to state the rights of which he advised Watson, Abernathy replied he told Watson of his right to remain silent and that any statement made by him would be used against him in court. Abernathy then said he read the form to Watson, and as he read each item and after asking appellant if he understood, placed a check mark in a box provided on the form for that purpose, and then handed the form to Watson to read. Thereafter, he said, Watson signed the form and the officer signed a certification on the form. This form was handed to Smith when he picked up Joe Joe at the Hot Springs Police Department and Smith received an affirmative answer to his inquiry of the prisoner as to whether he had signed this form. Although Smith said he asked Joe Joe twice thereafter whether he knew his rights, there was no evidence that anyone other than Abernathy had attempted to advise Joe Joe of any of the rights not stated on the form. According to Smith, he took Joe Joe into the sheriff’s office upon their arrival in Malvern, and, after asking if Watson knew his rights, said, “I don’t want you to tell me no story. Tell me the truth, and we will get things over with.” When Joe Joe asked “How long will I have to stay here?” Smith replied “Maybe a day or maybe two weeks. I don’t know, until we are thoroughly convinced that you are guilty or not guilty.” The next day Smith read the form to Watson again, and after Watson again confirmed the fact that he had signed the form, Smith asked “You want to talk to us about it or go the hard way?” and added “We are going to find out before I let you go.” When Joe Joe accused Smith of trying to “pressure” him, the officer said he replied “Come on. You are going back upstairs until you quiet down.” They were on their way upstairs when Joe Joe told Smith he wanted to talk to the sheriff, saying “I want to get this over with. I want to tell him about it.” Smith read the rights form to Watson again before the confession was signed. Watson’s mother testified that Smith had admitted to her that he had promised to talk to the judge, with whom he had good connections, about imposing a light sentence ánd suspending it so Joe Joe could go back to the rehabilitation center, if Joe Joe should sign the statement. This testimony was not contradicted.
Our review of the record discloses that, in view of appellant’s mentality and the statements made to him by the deputy sheriff, the advice to Watson about his constitutional rights may not have been given with sufficient clarity to enable him to understand that, if he desired, and was unable to employ a lawyer, a lawyer would be appointed before he was questioned. The form employed to advise appellant of his rights sets them out as follows:
1. Anything you say may be used against you in a court of law.
2. You have the right to use a telephone.
3. You have the right to remain silent.
4. You have the right to request a lawyer of your own choice.
5. You have the right to have your lawyer with you during questioning.
6. If you cannot afford a lawyer and want one, a lawyer will be provided for you in a court of law.
7. If you decide to answer questions now without a lawyer present, you still have the right to stop answering at any time until you talk to a lawyer.
In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the United States Supreme Court said:
The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process.
* * #
This does not mean, as some have suggested, that each police station must have a “station house lawyer” present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation.
The opinion also points out that the burden is clearly on the state to establish a waiver of rights.
Appellant was advised that he had a right to have a lawyer provided in a court of law, if he could not afford one and that, ‘if he decided to answer questions without a lawyer present, he would have the right to stop answering at any time until he did talk to a lawyer. This can easily be construed to mean that he could stop the questioning until a lawyer had been appointed. It has been held that advice that an attorney would be appointed “at the proper tíme,” even though a slight deviation from the Miranda prescription, will not negate the overall effectiveness of the warning. Tasby v. U.S., 451 F. 2d 394 (8th Cir. 1971), certiorari denied, Feggett v. U.S., 92 S. Ct. 1273, 405 U.S. 992, 31 L. Ed. 2d 459.
This warning is not as defective as that condemned in Moore v. State, 251 Ark. 436, 472 S.W. 2d 940, where the form relied upon contained the statement “We have no way of giving you a lawyer, but one will be appointed for you, if you wish, when and if you go to court.” There the implication that a lawyer could not be appointed before the accused’s case came up in a court is clear. It is not clear that the provision of an attorney in a court of law would be postponed beyond “a proper time” in this case. This situation is also quite different from that in Reed v. State, 255 Ark. 63 498 S.W. 2d 877, where it was admitted that it was only indicated to the accused that, if he did not have an attorney before he went to trial, the court could appoint one for him. Still, it remains doubtful that young Watson, with his intellectual weakness, would have understood, either before or after the coercive and inducive language used by the officer, that he had the right to ask that a lawyer be appointed for him before interrogation.
All doubts about the voluntariness of a confession must be resolved in favor of individual rights and constitutional safeguards. Smith v. State, 240 Ark. 726, 401 S.W. 2d 749. In view of Watson’s limited mentality, the coercive nature of Smith’s interrogation and the lack of clarity in the only advice given to Watson as to his constitutional rights, when we resolve all doubts in his favor, we are compelled to hold that the confession was involuntary, because it was obtained through duress, threats of harm, and á promise of favor or reward, condemned in such cases as Dewein v. State, supra, without adequate warnings as to his constitutional rights. In so doing, we have given respectful consideration to the holding of the trial court and resolved any conflicts in the evidence in favor of that ruling.
We need not discuss appellant’s other points extensively. The question of voluntariness of the statement is unlikely to arise on retrial, but it appears to us that the circuit judge’s instructions, given without objection, adequately covered the matter of the consideration to be given the confession by the jury, particularly in view of the fact that no specific instruction was requested.
In view of the positive identification of Watson by the victim of the “purse-snatching” of which appellant was accused, the evidence without the confession was legally sufficient, but admission of an involuntary confession must be taken to be prejudicial and reversible error.
For the error indicated, the judgment must be reversed and the cause remanded. It is so ordered.
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Mehaffy, J.
J. T. Hoover, a young man twenty-one years of age and unmarried, was killed in the town of Brinkley, Arkansas, about seven o ’clock p. m., November 29, 1928, by coming in contact with a live wire carrying 2,300 volts of electricity.
Appellant owned and used wires charged with electricity in the/ operation and maintenance of a power and light system in the town of Brinkley.
It is alleged that the appellant, its agents and servants, had carelessly and negligently allowed and permitted its electric light wires on Main (Street of the town of Brinkley to become broken and to fall on and across the- concrete sidewalk on Main (Street of the town of Brinkley. It is alleged that the lines were old, worn, and defective, and that the insulation thereon was worn out and completely gone at the place where the wire had fallen, over the above said sidewalk where plaintiff’s intestate was killed. The public, and especially the plaintiff’s intestate, used this sidewalk at the place where plaintiff’s intestate was killed, many times each day in going about the town of Brinkley. On the date of the injury, November 29,1928, after dark, plaintiff’s intestate, while going from his home to the business section of the town of Brinkley, attempted to pass the point where said wire was across the sidewalk, ran into said wire, and was horribly burned and electrocuted because of the carelessness of the defendant, Arkansas Power & Light Company, its agents and servants.
It was alleged in the complaint that the Arkansas Power & Light Company was negligent in using old, worn, and defective wires at and near the point where plaintiff’s intestate was killed; that appellant knew, or by the exercise of ordinary care could have known, .that said wires were old, worn, and defective and that the insulation was completely gone, at a point where many peo pie during the day and night passed directly under the said wire. And it was alleged that appellant was negligent in its failure to remove the wires. It was alleged that J. T. Hoover was in the exercise of due care at the time of his injury, that prior to the injury he was a stout and able-bodied man, was industrious, and had been rapidly promoted in his line of work; that he contributed the greater part of his earnings to his father and next of kin, and that it was his intention to continue to provide for his father and next of kin; and that, because of the negligence of appellant, the said J. T. Hoover suffered great and excruciating pain and misery after his injury until the time of his death.
The appellant filed a motion to quash service of summons, and alleged that the person served as agent of appellant was not an agent, servant, or employee in charge of a branch office or other place of business of defendant. The motion to quash service of summons was overruled and exceptions saved. Appellant thereupon filed answer denying all the material allegations of plaintiff’s complaint.
Mrs. Mallie Hoover, mother of J. T. Hoover, testified in substance that she was the administratrix of the estate of J. T. Hoover, deceased; that he died on October ' 29, 1928, and was twenty-one years old the ninth day of August before his death. Witness saw him alive at his home on the 29th of November at night, some time after six o’clock. He had been employed up until that afternoon and had come home to get work elsewhere. He worked all the time at something; gave part of his earnings to his father; he had never married. Copies of letters of administration were introduced. Witness further testified that her son had always lived in her house. He had worked away from Brinkley but Brinkley was always his home. He worked in S-tuttgart helping his father. He went to work in the bank when he was seventeen or eighteen. Witness said she had seen her son give his father clothes but could not say whether she ever saw nim give him money* She had seen checks he had written for his father, but does not remember the amount of the cheeks and does not know whether they were loans or gifts.
M. M. Hoover, father of J. T. Hoover, testified also about his son and about his character and inclination to work. The father was selling hats at the time the son was killed, but was not able to do much work; was 60 years old at the time of the trial. Witness could not say that deceased was employed at the time he was killed, but on Sunday before he saw his son and he was employed then. His son was employed in 1923 and 1924 and earned $65 and his board. He then went to work at the bank; worked at the bank about three years and then went on a rice farm and ran a pump for a while; when he left the rice farm he went to Pine Inn 'Camp-, and was working there the Sunday before he was killed. He was employed constantly, all the time; could not tell the dates or instances when his son gave him money, but he gave it to him at various times on various occasions; would just hand it to him; biggest sum he ever gave him was $35; gave him wearing apparel. Witness’ health has been poor for last ten years, and he was unable to work; stated that he believed his son gave him $50 once when he bought an automobile.
E. L. Blakely testified about the place of business, but this testimony was excluded by the court.
The evidence shows that the deceased, J. T. Hoover, was walking along on a concrete sidewalk and came in contact with one of appellant’s wires which had fallen on the sidewalk and was injured and killed. The insulation was worn off of the wires, the wire was rubbing against the tree and limb. This had been reported to the appellant on numerous occasions; and they would go out and put new insulation on. Wires were just strung through the trees, and every time there was a wet spell or the wind would blow there would be fire and burn the trees. There were no poles at that place.
•Some of the witnesses testified that the wires went through the trees and that the wire was naked and bare, and that in wet rainy weather you could see sparks fly and run through the trees.
The wire at the place where Hoover was injured, was burned in two. It was a number 6 wire and carried 2,300 volts. The wires pass through the branches of the trees between the poles. The accident happened on Thanksgiving- evening about 6:50. There was a big blaze up' in the tree and down on the ground.
The representatives of the appellant not only had been notified, but reached the place where the wire was down before Hoover did. Appellant’s employee knew where the wire was on the sidewalk, but was trying to find the other end. While he was looking for the wire up in the trees, Hoover came along and was practically on the wire when witness saw him and hollered at him. A rug was obtained and put around the wire, and in this way the wire was pulled away from him. When Hoover came in contact with the wire, he did not fall, but stood there and groaned, and when the wire was pulled away from him he fell. Appellant’s witnesses testified in substance that Hoover was killed instantly. A number of witnesses, however, testified that he lived and suffered three or four hours. Witnesses tried from the time he was injured until about eleven o’clock to resuscitate him. Assisting in the effort to revive him was a physician and some of the employees of appellant.
Appellant contends that the court erred in overruling its motion to quash the service. The summons was served on L. A. Atkins, who testified that he lived at Waterloo in the southern part of Nevada County, Arkansas; was manager of the Guthrie Bros. Drug Store, which is owned by the Guthrie Brothers of Prescott; that he was not in charge of any office or place of business of the Arkansas Power & Light Company in Nevada County. Witness said the only way he was connected with them is they send him the local bills for electricity for the houses in Waterloo through the local office at Stephens, and that they come in there and pay their bills and witness receipts for them. ’ Bills for the¡ houses supplied with elec trie current in Waterloo amount to something like $100 a month. The bills are sent to Atkins from Stephens. They are a combination receipt and bill. A receipt for the men who owe the bills and a duplicate receipt. Witness tears off the duplicate and gives them the receipt proper and keeps the stub. Bills are sent to witness through the mail from the office of the Arkansas Power & Light Company at 'Stephens; does not have anything to do with making the charges or fixing the charges; receives ten dollars per month, something like ten per cent. The work witness does for the Arkansas Power & Light Company is carried on in the Guthrie Drug Store. The Arkansas Power & Light Company has no interest in the drug store, does not pay any rent, and does not own the building. Witness does not keep any records in the conduct of the business; makes no effort to collect bills, but, if a person comes in to pay his bill, he receives the' money. They are supposed to pay the bills by the 15th of the month, and if they do not they are turned over to the representative who goes out and collects them. Witness does not go out of the store about this business at all.
Arkansas Power & Light Company has a warehouse at Waterloo, but no other place of business. Witness collects local bills. Wires and poles are strung in different parts of the county and current is sold to users about Waterloo. Bills are made out in Stephens and mailed to witness, who puts them in his desk, and, if the parties come in, receives the money from them; puts the money in the safe until the 15th of the month and then a fellow comes out from Stephens, takes the duplicates, figures out what witness has collected, and the amount is turned over to him. Witness works for the drug store, which pays him a salary. The telephone exchange is also in the same building, and witness collects for them, but does not go out of the office for them. Witness is the person they pay the 'bills to for the Arkansas Power & Light Company, the local light bills; does not know whether he is the only man - at Waterloo authorized to receive money for the company. Bills are sent to witness, he receives the money, and transmits it to the Arkansas Power & Light Company and they pay him a salary of ten dollars a month. That is the only place of business they have in Nevada County in Waterloo, and witness is in charge of it; does not render any service for the Arkansas Power & Light Company except as above stated. There are no signs except the drug sign on the building. The desk is where all of the business of the drug store is carried on. There is no separate desk for the Arkansas Power & Light Company. A man named Clark works for the Arkansas Power & Light Company and lives upstairs over the warehouse. Clark looks after trouble if they have any. “The bills are sent to me, sometimes addressed to L. A. Atkins and sometimes to the Guthrie Drug Store. That is the only place at Waterloo that the Arkansas Power & Light Company receives payment of bills.” When witness first started to work for the company, he received ten per cent, which would run around ten to twelve dollars a month. They now pay witness ten dollars per month.
C. A. Brassard testified that he knows Atkins, who runs the drug store, and that he goes there to pay the light bill; does not know whether Atkins performs any service for the company further than to collect bills. Witness takes current from the Arkansas Power & Light Company and pays the bill to L. A. Atkins. If witness remembers, the receipts are signed either L. A. Atkins, or Arkansas Power & Light Company, by L. A. Atkins.
W. C. Clark testified that he lives at Waterloo and is trouble shooter for the Arkansas Power & Light Company; that the company has a warehouse at Waterloo, and they keep a bunch of stuff in stock for emergency. The warehouse serves the Waterloo territory with lights and power, residences, oil field motors, and things of that sort. Waterloo is not a very large town, and the field is scattered. It is an oil field town. Witness knows Atkins, and says he is just an agent there for the Arkansas Power & Light Company for them to pay their bills to. The bills of persons who do not come in and pay Atkins are sent to witness, and he is supposed to go ont and collect them or disconnect the service. Witness is jnst trouble shooter and has nothing to do with collecting bills until the 15th. He is an electrician and goes out and tells them if the bills are not paid the current will be cut off.
The only question is whether service on Atkins was such service as is required under § 1152 of C. & M. Digest. This section provides that corporations who keep or maintain in any of the counties of this State a branch office or other place of business is subject to suits in any of the courts in said county where the corporation so keeps or maintains such office or place of business, and service of summons or other process upon the agent, servant, or employee in charge of said office or place of business shall be good service, etc. It will be observed that the service may be upon the agent, servant, or employee in charge of the office or place of business. The collecting of pay for the current would appear to be about as important a business as any other business they do. Collecting the bills is certainly a very important part of the business of the company at Waterloo. The appellant contends, however, that the fact that there is no sign upon the drug store carrying its name, and that it had no desk, no furniture or fixtures or anything else there, is evidence that it did not have a place of business or office. They also say that if a difficulty arose between appellant and its customers Atkins could not settle it, and that Atkins was not such an agent as could be depended upon with reasonable certainty to apprise the corporation of the service had upon them. The fact that he was not authorized to settle disputes between the company and its customers is no evidence at all that he was not in charge of the office or place of business, and as to not being able to depend on him to advise the corporation that he had been served would probably depend very much more on the character of the man than it would on the kind of business carried on. In this case, however, Atkins did apprise the corporation of the service upon him, and it was in no way prejudiced by his failure to act.
Appellant cites and relies on Ft. Smith Lumber Co. v. Shackleford, 115 Ark. 272, 171 S. W. 99. In that case the court, among other things, said: “The words ‘branch office’ and ‘other place of business’ are not synonymous, as contended by the learned counsel for appellant. The word ‘other’ distinguishes the term ‘place of business’ from the term ‘branch office,’ and shows that the Legislature intended that wherever the corporation maintained a ‘place of business,’ whether they had or did not also have an office at the same place, that service could be had upon the corporation by service upon the employee in charge of the business at that place.”
The court also said in that case: ‘ ‘ The agent, servant or employee in charge of a branch office, under the statute, must be one having’ authority to carry on the general business of the company. But not so as to the agent, servant, or employee in charge of the ‘ other place of business.’1 His authority may be only limited and special and confined to the particular business over which he has supervision. To be sure, the statute contemplates that there must be maintained a place where a well defined line of business is carried on with an agent in charge of that business. Elliott was such an agent.”
The next case cited and relied on by appellant is Terry Dairy Co. v. Parker, 144 Ark. 401, 223 S. W. 6. In that case the court quoted with approval from the case in 115 Ark. as follows: “Any agent competent to conduct such a business could be depended upon with reasonable certainty to apprise the corporation of the service upon him. It was the design of the Legislature that service could be had upon an agent of this character, and that when so obtained it should constitute service upon the corporation itself.”
In the instant case the agent was intrusted with the money collected, his duty being to receive and receipt for it, and transmit it to the company, a business as important, if not more so, than any other business it had in the county, and if he were competent to conduct such a business, he could be depended upon to notify the corporation of service upon him. And the facts in this case show that Atkins did actually apprise the corporation of the service upon him. The important thing in determining this question is that the corporation itself established a place oif business where its bills could be paid and receipted for, and when a corporation establishes such a place and receives and receipts for money paid for its service through an agent, it has for all reasonable and practical purposes established such a place of business as mentioned in § 1152 of O. & M. Digest. Davis v. Motor Parts Corp., 16 Fed. Rep. (2d Series) 148.
“Brown was at least the agent of the company at El Dorado for the purpose of representing it in making the collection of dues and assessments from the members of the company holding certificates therein, and receipting for the same. He signed receipts as local secretary; that is he designated himself as local secretary of the plaintiff company. In his testimony he said he was collection agent for the company at El Dorado. In the notices of assessment sent out from the home office he is referred to both as local secretary and as branch secretary of the company. He also signed one of the papers in evidence as secretary of the local board. * # * We do not think it could do any business here through an agency for that purpose, without at the same time being here for the purpose of service. If the company thought it proper and to its interest to have a local secretary or secretary of a local branch of said company here to do business for them, even to the extent of collecting and receipting assessments and forwarding them to the home office, we think, in the absence of any other officer of agent of the company upon whom service could be had in the county, that service upon him is good under our statute.” S. W. Mutual Ben. Assn. v. Swenson, 49 Kan. 449, 30 Pac. 405.
We think, if the Arkansas Power & Light Company thought it proper and to its interest to have an agent in Nevada County, doing business only to the extent of collecting and receipting for light bills and forwarding the money collected to the appellant, in the absence of any other officer or agent of the company, upon whom service could be had in the county, that service upon the agent conducting this business is good under our statute.
Appellant’s next contention is that instructions 1 and 2, given in behalf of appellee, are abstract and in conflict with instruction No. 4 given in behalf of the defendant. Instruction No. 1 told the jury “that the burden of proof in this case is upon the plaintiff to show by a preponderance or greater weight of the evidence that the deceased, James Talmadge Hoover, lost his life on account of the negligence of the defendant, and to show further that the negligence of the defendant, if any is shown, was the proximate cause of the deceased’s death, and further that the deceased was not guilty of contributory negligence.”
Instruction No. 2 complained of is as follows:
“You are instructed that companies supplying electric currents are bound to use reasonable care in the construction and maintenance of their lines. This care varies with the dangers that will result from the negligence on the part of the company, if any. Reasonable care is such care as a reasonable man would use under ordinary circumstances, and, in determining whether such care has been exercised, the jury will take into consideration the location of the lines, whether in thickly or sparsely settled communities, the harmless or dangerous character of the current carried by such lines, and their remoteness or proximity to the people who may pass by and all other circumstances in evidence.”
Neither of these instructions is abstract, but each is a correct statement of the law.
Appellant contends that no one can say which of the charges of negligence the jury found the appellant to be guilty of. That may be true, but we know that the verdict was not based on the appellant’s failure to insulate the wires because instruction No. 4 expressly told the jury that it was not the duty of the defendant company to have insulated the wire. Instruction reads as follows: “You are instructed that it was not the duty of the defendant company to have insulated the wire which the deceased came in contact with for the protection of life or property.”
Moreover, this instruction was erroneous and should not have been given. We have repeatedly held that it was the duty of the company to keep its appliances in safe condition and that either the wires must be kept insulated, or must ibe so located as to be, comparatively speaking, harmless. If the company does not choose to properly insulate a deadly wire of its maintenance, it must place the same under ground, at a high altitude, or at some inaccessible place.
We said in a recent case: “The authorities appear to be unanimous in holding that there is no such duty, [to insulate all wires] but the cases do hold, as we understand them, that this duty must be performed, or other sufficient safety methods employed to prevent contact with wires conveying the current at such places as danger of contact may reasonably be anticipated. Ark. P. & L. Co. v. Cates, 180 Ark. 1003, 24 S. W. (2d) 846.
The law as to the duty of electric companies was discussed at length in the above case, and we do not deem it necessary to cite the authorities here or discuss it further, because there is no contention about the fact that on the question of negligence and contributory negligence the case was submitted to the jury on proper instructions, and the jury’s finding is conclusive.
Appellant next contends that the case should be reversed because of prejudicial remarks made by both counsel for appellee in their arguments to the jury. After the remarks, to which appellant objected were made, the court admonished the jury that they should try the case solely according to the law as given by the court and the evidence from the witness stand, and, when objection was made a second time, the court said: “Gentlemen of the jury, I tell you again that you are to try this case solely according to the law and the evidence the witnesses gave and nothing else.”
There were some remarks of one of the attorneys for the plaintiff to which objection was made and the court overruled the objection. One of these remarks was as follows: “If the defendant in this case was an individual, it would be indicted and sent to the penitentiary.” Appellant urges that there is nothing in the case to send either an individual or a corporation to jail, the penitentiary, or even to impose a fine upon either of them: We do not agree with appellant in this contention. The undisputed evidence in this case shows that Hoover was killed by the negligence of the appellant, and the statute provides that if the killing be in the commission either of an unlawful act or in the prosecution of a lawful act, done without caution and circumspection, it should be manslaughter. And every person convicted of manslaughter may be imprisoned in the penitentiary. Therefore if an individual in the prosecution of a lawful act does so without due caution and circumspection, that is if he does it negligently and kills some person, he is guilty of manslaughter, and the statement of the attorney to which objection was made was not an erroneous state-, ment as suggested by appellant. Moreover, statements like the above are frequently made in the heat of argument and everybody, including the jury, understands the circumstances under which they are made, and in this case the remarks were not prejudicial.
The attorney also said in his closing argument: “If the witnesses for the defendant testified against Henry Yocum, they would not have a job in the morning.” Henry Yocum referred to is one of the attorneys for the defendant.
The attorney also said: “Gentlemen, go out there and in the name of God, and law, have a backbone—go out there and think of yourselves, your own flesh and blood—not a back alley, not on a side street, not out in the woods. Your.little boy and girl may leave home and start to a picture show. There was a wire down up here by the Prescott Furniture Company and they had ’phoned 25 times: ‘For Cod’s sake fix it, fix it,’ and they did not fix it.”
Appellant argues that this statement was loaded with dynamite. Most of the statement was based on the evidence. Certainly that the wire was down, and that appellant had been notified many times is shown by the undisputed evidence, and whether the lawyer tells the jurors to think about their own children or hot they would certainly do it. This court has many times discussed the question of remarks made by counsel in argument of a case, and we call attention to the following cases: St. L. I. M. & S. R. Co. v. Boback, 71 Ark. 427, 75 S. W. 473 ; American Ins. Co. v. Mordic, 168 Ark. 795, 271 S. W. 460 ; United Order of Good Samaritans v. Lomax, 172 Ark. 330, 288 S. W. 709 ; St. L. I. M. & S. R. Co. v. Hairston, 125 Ark. 314, 188 S. W. 838 ; St. L. I. M & S. Ry. Co. v. Raines, 90 Ark. 406, 119 S. W. 665 ; St. L. I. M. & S. R. Co. v. DeVaney, 98 Ark. 83, 136 S. W. 802.
In this last case the court said: ‘ ‘ The statement of the attorney in his argument in this case that the defendant had treated the plaintiff worse ‘than you would treat a dog,’ was only the expression of opinion at the most, the jury could not have understood thereby the counsel was mailing a statement relative to a fact not adduced at the trial.”
And in the Boback case mentioned above when objection was made to remarks of the attorney, the court said: “Now, this language, being delivered near the climax of the closing argument and under the excitement thereof, may be somewhat exaggerated as well as a little mixed. * # * If there be some exaggeration, we must remember that it is within the province of counsel for plaintiff in an action for damages to take a sympathetic view of the client’s injuries and to indulge in oratorical flights in his endeavor to impress his views upon the minds of the jury.”
Counsel for appellant called attention to a number of authorities where this question is discussed in addition to the ones we have mentioned, hut it must be kept in mind that an attorney1 in making an argument has the right to impress his views on the jury by all proper means, and in the heat of argument may say things at that time that he would not otherwise say. It should also be kept in mind that the jury are composed of men of sense and honesty, and are about as ready to resent unfairness as any class of men in the country. Moreover, there must necessarily be left large discretion with the trial court, who presides at the trial, and hears the entire case tried, and the presumption is also that he would not intentionally permit any unfairness or improper conduct on the part of either attorney.
We do not think that the remarks of the counsel which were objected to call for a reversal of the case.
It is next contended by appellant that there is no substantial evidence to support the verdict in the sum of $10,000 for the benefit of the father who was the next of kin, and that the verdict of $10,000 is grossly excessive. We do not think that the evidence is sufficient to sustain a verdict of $10',000. There is, however, substantial evidence from which the jury might have found that the deceased did contribute considerable amounts to his father, and that he would continue to do so. We have reached the conclusion, however, that the evidence as to this question is not sufficient to sustain a verdict for more than $5,000, and the judgment in favor of the father for $10,000 is therefore reduced to $5,000.
Appellant’s next contention is that the evidence is not sufficient to support a verdict of $7,000 for pain and suffering, and this argument or contention is based on the alleged fact that there is no substantial evidence in the record to show that deceased ever suffered any conscious pain and suffering. We do not agree with appellant in this contention. There is' ample evidence to show conscious pain and suffering. Some of appellant’s witnesses testified 'that the deceased lived after the injury for something like three hours and suffering during this time. The evidence is that he groaned, and that when they would ask him to turn over he would try to do so. Some of appellant’s witnesses testified that he was killed instantly, and yet these same witnesses testify that they assisted from about 7:30 to 11:00 o ’clock trying to resuscitate him. It is difficult to believe that persons would work three hours trying to revive a person they knew was dead, but, whether that testimony was believable or not, it was in conflict with the testimony of other witnesses*, and the jury’s finding on this made it conclusive.
In the case of the Mo. Pac. Rd. Co. v. Bushey, 180 Ark. 19, 20 S. W. (2d) 614, a verdict of $9,463 for pain and suffering was upheld. There was a total judgment in the above case for $48,500. In that case the deceased suffered about three hours.
The judgment for $7,000 for pain and suffering is sustained by the evidence.
The judgment of the circuit court will be modified •as to the judgment in favor of the father, reducing that to $5,000. In all other thing’s it is affirmed. It is so ordered.
Smith and McHaney, JJ., dissent, and Butler, J., dissents because of the remarks of attorney. | [
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John A. Fogleman, Justice.
This is the second appeal of this case. In the first, Security Insurance Company of Hartford v. Owen, 252 Ark. 720, 480 S.W.2d 558 (1972), we reversed a judgment against appellant because of error in submitting to the jury the question of construction of one of the insurance policies involved. The case is a suit by William Maurice Owen and his father Maurice Owen against Security Insurance Company of Hartford, the insurer of W. H. Marks on two policies. One of them is an automobile liability policy with a limit of $50,000. The other is a Farmer’s Compre hensive Personal Liability Policy with a limit of $25,000. The question at issue is which policy applies.
Owen, then a minor, was injured on August 7, 1965, while guiding a tractor belonging to Marks and being towed by a pickup driven by Marks. The purpose of the trip was to take the tractor and equipment to a duck hunting club in which Marks was interested. In a suit brought by Maurice Owen in behalf of himself and his son, a judgment for $34,250 was recovered. Appellant provided the defense in that suit, having acknowledged coverage under the comprehensive personal policy but denying coverage under the automobile policy. Appellant then paid the amount of its comprehensive policy limits but continued to deny liability under the automobile policy on the basis of a clause excluding employees of Marks from coverage. This suit was then brought against appellant by appellees to recover the balance of $9,250, interest, statutory penalty and attorney’s fees, as a sub-rogee of Marks, pursuant to Ark. Stat. Ann. § 66-4001 (Repl. 1966). Of course, appellees asserted that the automobile policy provided coverage to Marks. Appellant has consistently maintained its position that the exclusion in that policy applied. Obviously, Marks has not paid any part of the judgment.
After the reversal of the judgment on the first appeal, a second trial, presided over by a special circuit judge because of illness of the regular judge, resulted in a jury verdict favorable to appellant. Timely motion for new trial was hied. It was heard and granted by the regular circuit judge, who had the transcript of the proceedings before him. This appeal was taken from the order granting a new trial. Appellant contends that this order constituted an abuse of the circuit judge’s discretion because it was premised upon an error of law.
The grounds for the motion were allegations of error in the admission into evidence of two pretrial statements made by W. H. Marks, a witness but not a party to this action, and error in the failure of the trial judge to admonish the jury that such statements were to be considered by them only as bearing upon the credi bility of the witness. The new trial was granted solely upon the finding of the regular circuit judge that there was error in the admission of the statements. .
Error of law occurring at the trial and objected to by the moving party is one of the statutory grounds for a new trial. The trial court has a broad latitude of discretion in the granting of new trials. This discretion is not limited to cases where sufficiency of the evidence is the ground for the motion. See, e.g., Heil v. Roe, 253 Ark. 139, 484 S.W.2d 889; Millers Casualty Insurance Co. v. Holbert, 253 Ark. 69, 484 S.W.2d 528; Hardin v. Pennington, 240 Ark. 1000, 403 S.W.2d 71; Thomas v. Arnold, 192 Ark. 1127, 96 S.W.2d 1108. Of course, the latitude of the trial judge’s discretion is much broader where the question is whether a jury verdict is supported by a preponderance of the evidence, because of the peculiar advantage of his position in evaluating all the factors bearing upon it. In determining questions as to errors of law, his position is not of the same superiority to that of the appellate court. Still, the action of the trial judge on a motion for new trial upon a statutory ground should not be reversed in the absence of manifest abuse of his discretion. Law v. Collins, 242 Ark. 83, 411 S.W.2d 877; Blackwood v. Eads, 98 Ark. 304, 135 S.W. 922. See also, Millers Casualty Ins. Co. v. Holbert, supra; Hardin v. Pennington, supra; Thomas v. Arnold, supra. The showing that this discretion was abused must be much stronger when a new trial has been granted than when it is denied. Heil v. Roe, supra; Worth James Construction Co. v. Herring, 242 Ark. 156, 412 S.W.2d 838; Blackwood v. Eads, supra.
The party who was the beneficiary of the verdict set aside by the granting of a new trial has much less basis for a claim of prejudice than does an unsuccessful movant for a new trial. In Porter v. Doe, 10 Ark. 186, the trial court, after a verdict for the defendants, granted the plaintiffs a new trial which resulted in a verdict for the plaintiffs. The defendants alleged that the new trial was improperly granted, apparently upon the basis that the verdict was not contrary to the evidence or instructions. This court said that since the verdict was in favor of the defendants they could not complain of either the misdirections of the judge, improper evidence admitted or a like cause, adding:
A verdict was all that they could ask, and when it was set aside they could only complain that the Circuit Court had exercised its discretion to their prejudice. The Supreme Court has already extended its revising control over the discretionary powers of the Circuit Court as far as the most liberal practice will warrant upon the subject of new trials. This is a new case and must be predicated solely upon the ground of abuse of the discretionary power of the Circuit Court. Whether this power was exercised prudently or not there was offered the defendants another opportunity for presenting their defense, and if they had injustice done them in that trial, this court is open to hear their complaint.
In Heil v. Roe, we said:
In Blackwood v. Eads, 98 Ark. 304, 135 S.W. 922, we pointed out that this court will much more reluctantly reverse the final judgment in a cause for error in granting than for error in refusing a new trial. Such reluctance is based on sound and practical reasoning. In the first place any competent judge is simply not as likely to find and admit error where none exists as he is to overlook or fail to recognize or accept error where it does exist. In the second place, final justice may be totally denied by the wrongful refusal of a new trial whereas final justice should be only postponed by the wrongful granting of a new trial.
Manifest abuse of discretion in granting a new trial means a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Blackwood v. Eads, supra. Under the circumstances prevailing here we are unable to say that the circuit judge exercised his discretion improvidently, thoughtlessly or without due consideration.
Marks testified in the first trial of this case. He was subpoenaed and called to testify at the second trial by appellant. The issue in the case was whether young Owen was an employee of Marks. Appellees’ cause of action, when the judgment against Marks remained unsatisfied for 30 days, was by statutory subrogation to the right of Marks under the policy. Ark. Stat. Ann. § 66-4001. Obviously, the interest of Marks in a favorable result in this litigation was identical to that of the Owens. Even though Marks was not a party to the action, or, strictly speaking, in privity with either of the Owens, a judgment unfavorable to the Owens would likely be binding upon Marks in any action he might bring against appellant, particularly when he could have asked to be made a party and his knowledge of the pendency of the action arose from his having been called as a witness on the critical issue. See Carrigan v. Carrigan, 218 Ark. 398, 236 S.W. 2d 579; Roberson v. Hamilton, 240 Ark. 898, 405 S.W.2d 253; Hill v. Village Creek Drainage District, 215 Ark. 1, 219 S.W.2d 635; Moreland v. Meade, 162 Md. 95, 159 A. 101 (1932); Bacon v. Gardner, 38 Wash. 2d 299, 229 P.2d 523 (1951); Talbot v. Quaker State Oil Refining Co., 104 F.2d 967 (3rd Cir. 1939); Terry and Wright of Kentucky v. Crick, 418 S.W.2d 217 (Ky. 1967); 50 C.J.S. 322, Judgments, § 786. By the same token, a judgment against appellant would certainly relieve Marks from the payment of the judgment against him.
In this situation, the testimony of Marks and young Owen was critical because they appear to be the only ones who can actually shed any light on the existence of an employer-employee relationship. Appellant had promptly made inquiries of both soon after the wreck occurred. Young Owen testified Marks said nothing about paying him for steering the tractor, that he had not done any other work for Marks or been to the duck camp during the year in which he was injured, that he had never been paid any money by Marks, and that Marks had never offered to make any payment to him. On cross-examination, he admitted making a statement to George Sims, an insurance adjuster, that he was working for Marks at the time of his injury and that Marks was going to pay him. The statement was introduced. It contained a clause stating, in effect, that Owen was an occasional employee and that Marks paid him $7.00 per day for eight hours’ work. Owen explained the statement by saying he did not tell the adjuster the things contained in it. He said that, at the time, he had been “doped up” for his fourth surgical procedure due to his injury and that Sims read the content of the statement, and, after each sentence, asked him if he agreed. Owen attributed his affirmative answers and his signing the statement to the influence of drugs. He admitted that all of the statement except those parts pertaining to the employment relationship was essentially correct. Appellees’ case on the issue rested on this testimony.
Marks had also signed statements pertaining to the employment status of young Owen. One of them was dated August 11,-1965, and the other December 20, 1967. Marks testified, when called by appellant, in the second trial, that his regular employee who was scheduled to drive the tractor did not show up on the morning the tractor was to be taken to the duck club and that young Owen took his place. He stated he would have paid the regular employee and doubtless would have paid young Owen, because he had-paid others who had-cleaned up a levee with a chain saw. He could not recall whether he had paid Owen anything, but his regular rate of pay for the type of work done was $7.00 per day. He then stated he intended to pay Owen had it not been for the wreck, but probably would not have paid him at the rate of $7.00 per day.
After Marks- had given this testimony, he stated he could not recall what he might have told appellant’s counsel earlier, but admitted he had previously given a statement to the insurance adjuster, George Sims. Both statements were then offered and admitted into evidence over appellees’ objection. These objections included the following: the statement was hearsay and was taken without opportunity for cross-examination, and that the testimony of a witness cannot be bolstered by showing his out-of-court statements. The statement was offered by appellant for impeachment without any suggestion that it might have probative value as substantive evidence. No limiting or cautiQnary instruction was requested or given. Marks admitted, during his testimony, that at the time of signing the statements he had no idea that the employment status of young Owen had any bearing- on the extent of his insurance coverage and that he showed the insurance policies to the elder Owen and the attorney for the Owens at a later date. The first statement contained the following sentence: “Owen works for me by the day and I pay him $7.00 per day for average days.” After the statement was introduced, Marks admitted having told the adjuster this. The second statement was to the effect that Owen had worked for Marks on occasion, usually cleaning up, cutting weeds, working on the club house, and had been paid from Marks’ pocket, but that Marks did not think that the youth’s name had ever appeared on his payroll.
It was shown on cross-examination of Marks that, during the first trial, he had testified he did not pay young Owen anything, had never paid him anything, he did not think he ever discussed paying him anything and had never paid Owen anything out of his pocket. On redirect examination it was shown that he had also stated, at the first trial, that it was possible he had paid young Owen something out of his pocket and that he had admitted telling the insurance adjuster on August 11, 1965, that Owen worked for him part-time and that he paid Owen $7.00 per day.
Appellant now argues that the statements were admissible, under the peculiar circumstances existing here, and particularly that the identity of interest of Marks and the Owens made the statements admissible, so that, in any event, there could be no error in admitting them, relying upon Sherman v. Mountaire Poultry Co., 243 Ark. 301, 419 S.W. 2d 619; Smith v. Clark, 219 Ark. 751, 244 S.W. 2d 776; Home Insurance Co. v. Allied Telephone Co., 246 Ark. 1095, 442 S.W. 2d 211, among other authorities. There is no indication that this latter argument, which is presented rather forcefully and persuasively here, has ever been presented to the trial court. If we agreed with appellant and our agreement resulted in affirmance of the trial court, this fact would be immaterial. Lisko v. Uhren, 130 Ark. 111, 196 S.W. 816, 88 C.J.S. 189, Trial, § 82. But we cannot say this matter is unimportant under these conditions. Appellees had no opportunity to object to the statements as substantive evidence or to take counter measures. Both statements by Marks were in evidence in the first trial, and Marks’ testimony as outlined in our opinion on the first appeal does not materially differ from that given at the second trial. However, the recollection of the witness may have been hazier on this occasion. Similar objections to the introduction of the statements were then made by appellees but withdrawn.
Appellant’s argument that the statements were admissible for impeachment purposes would be compelling had Marks not been used as a witness by appellant in an effort to prove the critical issue. It does not appear that appellant claimed to have been surprised by the testimony elicited, and appellant does not argue that it was entrapped into using Marks as a witness. The requirement of surprise before a party may impeach a witness called by him has been criticized. See IIIA Wigmore on Evidence, Chadbourne Revision, 981, § 905 n 6; Diffey, Impeaching One’s Own Witness in Arkansas, 8 Law School Bui. 34, 36. This criticism would not justify a change in our construction of the statute, but the statute has not been so applied in the circumstances which prevailed here. We are not necessarily bound to extend the requirement of surprise as a condition precedent to the situation that existed when Marks testified, or to that which may prevail when, and if, he testifies again. A recognized exception to the -rule against impeachment of one’s own witness exists when it appears that the witness is hostile. See 58 Am. Jur. 444, Witnesses, § 799; Annot. 21 L.R.A. 418, 423 (1893). The determination whether a witness is hostile lies within the sound judicial discretion of the trial judge, in the exercise of which he should be accorded great latitude and may consider, among other things, such matters as the extent of £he deviation of the testimony from previous statements by the witness, and inferences that the witness is attempting to suppress the truth, drawn from his testimony and conduct. Lerma v. United States, 387 F. 2d 187 (8th Cir. 1968), cert. denied, 391 U.S. 907, 88 S. Ct. 1658, 20 L. Ed. 2d 421; State v. Hutnik, 39 Wis. 2d 754, 159 N.W. 2d 733 (1968); State v. Davis, 400 S.W. 2d 141 (Mo. 1966), cert. denied, 385 U.S. 872, 87 S. Ct. 142, 17 L. Ed. 2d 99; Fox v. Schaeffer, 131 Conn. 439, 41 A. 2d 46, 157 A.L.R. 132 (1944).
The question of admissibility of the evidence is certainly not free from doubt, and much lies in the discretion of the trial judge. If we could say with assurance that the statements were admissible in the trial, either for impeachment of appellant’s own witness or as substantive evidence, we might be able to say that there was an abuse of the trial court’s discretion in granting a new trial. Marks’ interest in the case may have been such as to render him a hostile or adverse witness, in which case he might properly be impeached by the party, calling him. It is certain that after young Owen testified as he did, appellant had little choice in the matter of calling Marks as a witness. Even for impeachment purposes, there are elements other than hostility of the witness calling for the exercise of judicial discretion in determining admissibility. Among these is the matter of prejudice of his statements to the party calling him.
Since the propriety of admitting the evidence is doubtful, the doubt should be resolved in favor of the granting of a new trial. 58 Am. Jur. 327, New Trial, § 121; Marks v. Haas, 166 Iowa 340, 147 N.W. 740, Ann. Cas. 1917D 543 (1914); Steensland v. Iowa-Illinois Gas & Electric Co., 242 Iowa 534, 47 N.W. 2d 162 (1951). We see little difference in a case such as this and the cases where we sustained the granting of a new trial because the trial judge did not feel that his instructions to the jury had properly presented the issues to the jury. No sound reason exists for a different rule or procedure where admissibility of evidence, rather than jury instructions, is concerned, and the error is not manifest.
Ordinarily we would undertake to resolve the questions posed which are likely to arise upon a new trial, but cannot do so in this case. The statements of Marks are not wholly consistent and his recollection will not likely improve with time, so there is no way to anticipate exactly what his testimony might be in another trial. Nor can we predict whether the statements will be offered in evidence, the time or state of the record when they may be offered, the circumstances or conditions which will prevail when they are offered, or the purpose for which the statements may be offered. Consequently, we are unable to satisfactorily answer the questions which might arise. Since these matters are subject to so much speculation, we are not called upon to resolve questions of admissibility which may arise on a new trial.
We do not consider that the regular judge’s discretion to grant a new trial was limited in this case by the fact that he did not preside at the trial, particularly in view of the fact that in considering the motion he had the transcript of the trial before him. We find no merit in appellant’s argument that the mere showing, on cross-examination, that Marks had given testimony at the first trial different from his pretrial statements and perhaps different from his testimony on direct examination by appellant constituted a waiver of the evidentiary question..
Since we find no abuse of discretion, we affirm the judgment.
Byrd, J., dissents.
The failure to give such instruction is not reversible error in the absence of a request. Perry v. State, 255 Ark. 378, 500 S.W. 2d 387. Where the testimony is admitted for impeachment purposes only, it seems that the better practice would be to give a limiting instruction. | [
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McIIaney, J.
Appellee sued appellant for damages for personal injuries sustained by him while riding on the running board of appellant’s automobile as a guest, either invited or self-invited. He alleged that appellant was negligent in placing a board, or boat seat, about 30 inches long, on the bumper or fender of the car, and in leaving it there in such a way that when the car was moving it fell off, and in some way struck and broke his leg just above the anide. The facts are that appellant and his brother had been fishing, and, on returning, appellant had run his car in some soft or loose sand and become stalled. Appellee was passing and assisted them in getting out. A boat seat was taken from the car, and used in digging the loose sand from around the wheels to give them better traction. After using the boat seat in this way perhaps more than once, as the car was stalled two or three times before getting on firm ground, it was placed by some one somewhere on the car, but not in it. Appellee was permitted to ride standing on the running board on his way to a nearby town. No witness knew just where the board was placed, whether on the bumper, fender, or running board of the car, and no witness, including appellee, was able to tell just how the accident happened, which resulted in the breaking of his leg. He says he saw the board lying behind the car immediately after being struck. At the conclusion of appellee’s evidence, and again at the close of all the evidence, appellant requested a directed verdict on the insufficiency of the evidence to support a verdict for appellee. The court refused so to do, submitted the matter to the .jury, and the result was a verdict and judgment against appellant for $1,000. Wherefore this appeal.
We are of-the opinion that appellant was not guilty of actionable negligence under the facts. Whether appellee was an invited guest, self-invited guest or a. licensee, the rule of law in this 'State is that the driver of the automobile is only bound to exercise ordinary care in operating it for the safety of his guest. Black v. Goldweber, 172 Ark. 862, 291 S. W. 76; Bennett v. Bell, 176 Ark. 690, 3 S. W. (2d) 996. In the latter case we said: “The driver of an automobile or motor vehicle is bound to the exercise of ordinary care in the operation thereof for the safe transportation of his guests and other passengers and to avoid personal injury to them, and this duty extends to all such passengers, whether guests by sufferance, invited or self-invited.” In other words, in this State, no distinction is made as to the kind of guest, and this is the modern rule and supported 'by the weight of authority. 51 A. L. R. 581, note; Black v. Goldweber, supra. But while this is true, the guest takes the automobile and the driver as he finds them. See quotation from Munson v. Rupker (Ind. App.) 148 N. E. 169, in Black v. Goldweber, where it is said that: “He who enters an automobile to take a ride with the owner also takes the automobile and driver as he finds them. ’ ’ Therefore, no duty of inspection for defects in the automobile or for loose articles lying thereon rested upon the owner for the protection of the guest. Appellá& was therefore a bare licensee, in so far as defects in the car were concerned, but not so as to its negligent operation, about which no complaint is made. Being a bare licensee, he took his license with its concomitant perils—at his own risk as to any defective condition of the car. 'In Marple v. Haddad 103 W. Ya. 508, 138 S. E. 113, it was said: “Reasonable care for the safety of a guest commences only when he enters the automobile. The operator owes no duty of prior inspection.” In 1 Blashfield, Cyclopedia of Automobile Law, p. 967, the rule is thus stated: “’With respect to the condition of the automobile, the rule is that one invited to ride therein by the owner or driver accepts the machine of the host as he finds it, subject only to the limitation that the driver or host must not set a trap or be guilty of active negligence, contributing to the injury of the guests.”’
Conceding that appellant placed the board on the car, which is doubtful, aiid that it in some unknown manner caused the injury to appellee, still no actionable negligence has been established under the rules above stated, and the court should have so instructed the jury at appellant’s request. The judgment will therefore be reversed, and the cause dismissed. | [
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Lyle Brown, Justice.
Appellee, Gulf Union Corporation, is the record owner of a lot and improvements located at 144 1/2 Forrester Street in North Little Rock. On October 5, 1970, Gulf entered into an option to purchase agreement with Arnold Cox and Joe Ann Cox, husband and wife. Gulf instituted this suit, alleging that appellants had forfeited their option to purchase but nevertheless appellants were interfering with Gulf’s exercise of its ownership. Arnold Cox did not answer; in fact he was a mere nominal party to the contract. Joe Ann Cox resisted the complaint, alleging that she orally exercised the option and that Gulf waived the requirement of notice that she was exercising her option, that she was not delinquent in her monthly payments, and (on appeal) that the trial court erred in permitting the trial attorney for Gulf to testify.
We shall summarize the principal provisions of the written option agreement. Mrs. Cox paid $1000 and was granted possession and an exclusive option for approximately six months (to April 1, 1971) to purchase the property. During the option period she was to make monthly rental payments of $89.22 and during that period the status of landlord and tenant would exist between the parties. It was further provided that the option to purchase was conditioned on the payment of the monthly rentals and written notice by registered mail on or before April 1, 1971, to the effect that the Coxes were exercising the option. If the option was exercised as provided, optionor would convey the property to optionees and take a mortgage for $10,600, less credit for the initial $1000. The agreement stated that in case of default, the relation of landlord and tenant would exist and Gulf could demand possession of the property.
The trial court held that the Coxes failed to comply with the terms of the agreement and lost their option; that following April 1, 1971, the relation of landlord and tenant existed; that pursuant to a notice given by Gulf, the Coxes were obliged to vacate the property as of November 1, 1971; and that Gulf was from that time entitled to exclusive possession and use of the premises.
Gulf introduced the testimony of Louis Mashaw, Clay Hyde, and Attorney David Bogard. Mashaw is the “trouble-shooter” for Gulf in Arkansas and resides in Hot Springs. Gulf is headquartered in Louisiana. Ma-shaw testified that he met with the Coxes in Mr. Bogard’s office on September 28, 1970, and again on October 5; that at the first meeting the draft of the agreement was not satisfactory with the Coxes; that he took a check for $1000 but held it until another and more satisfactory agreement could be drafted and executed by the parties. Mashaw signed the October 5 agreement on behalf of Gulf. He said he took no part in receiving monthly payments.
Witness Clay Hyde, an assistant vice-president of Gulf, resides in Baton Rouge and is in charge of collections. We summarize his essential testimony. The account originated prior to the option to purchase agreement. The Coxes were at one time the owners of the property and they executed a mortgage to Gulf. Shortly after the mortgage was foreclosed the option to purchase was executed and Gulf left the mortgage account in the IBM machine and used it for entering payments made under the option to purchase. Hyde experienced difficulties with the collection of the agreed monthly rental payments which were to be made during the period of the option. The first payment was due November 1, 1970, and a check was sent dated November 20; the check was not paid because of insufficient funds. The check was eventually honored. During the ensuing period Gulf experienced similar difficulties in getting checks honored. During the months following, Mrs. Cox continued to make monthly payments on a belated basis. By September 1971, she was three months in arrears. Then in early October, Gulf received three payments and they were applied to the July, August and September payments. Those payments made her current through September. Just before she mailed the three payments Mrs. Cox had been sent a letter by Gulf’s attorney which instructed her to vacate the premises. That letter was dated September 29, 1971. Later, in October, Gulf received two money orders representing three payments. Those money orders were returned to Mrs. Cox. One more payment was received by Gulf and it was likewise refused. At no time prior to, or after, April 1, 1971, did Mrs. Cox give written notice that she was exercising her option to purchase the property.
On cross-examination Mr. Hyde explained that he could not say when payments were received but could tell the dates they were posted on the IBM machine. He detailed the dates as follows: The first payment was posted the latter part of October 1970; the next one, December 8, covering November; the third one was January 8, for December; on January 8, two payments were run through the machine, covering December and January; the February payment was posted on the 25th; the payment due in March was posted on April 15; the next payment was posted on June 10; and the last credit was made in October, when three payments were sent in for July, August and September. Toward the last of October three payments were made at one time and these funds were returned since Gulf had sent Mrs. Cox notice to vacate the premises.
Mr. Hyde conceded that under date of April 7, 1971, Mrs. Cox was requested to pay the insurance on the property. She responded by sending a check but it was returned “NSF” and was never cashed. Gulf proceeded to pay the premium. He also testified that under date of March 16, 1971, Mrs. Cox was sent four mortgage payment cards; that those cards would last her through the July payment, at which time some more cards would be sent. Then that procedure of sending payment cards was repeated on July 21, 1971. Mr. Hyde explained that those letters and cards went out automatically because the account had not been withdrawn from the IBM machine. A request for payment was also sent out on October 21, 1971. Again, Mr. Hyde said that was because the account was still in the IBM machine. The witness was also confronted with cancelled checks in the amount of the monthly payments, one being dated May 26, 1971, and the other July 26, 1971. Finally, Hyde was asked if he had a conversation with Mrs. Cox in July or August about her paying the property taxes and he replied that he did not so recall.
Over the objection of Mrs. Cox, Gulf’s attorney David Bogard was permitted to testify. The objection was on the basis that the rule on the witnesses had been granted at the beginning of the trial. He placed several letters in the record. The first one was dated December 22, 1970. The letter concerned the receipt of NSF checks. Mrs. Cox was reminded that she only held an option to purchase and one of the prerequisites for exercising the option was the prompt payment of monthly installments. The next letter was dated December 30, 1970, which was again in regard, to NSF checks, and stated that unless two payments, covering November and January, were in his hands by January 8, 1971, Gulf would reclaim the property. Then on June 1, 1971, Bogard wrote her that since she had not exercised her option to purchase in accordance with the terms of the agreement, Gulf was declaring a landlord-tenant relationship; and that they would expect monthly rental payments in order that she could occupy the premises as a tenant. Then on September 29, 1971, Bogard wrote her that Gulf was terminating the landlord-tenant relationship as of October 1, 1971. Finally, on October 12, 1971, Bogard returned by mail two money orders recently received. The letter came back undelivered, whereupon Bogard mailed the money orders by certified mail to Mrs. Cox’s attorney.
Mrs. Joe Ann Cox was the only witness for herself. She said that in August 1971 she discussed the taxes over the telephone with Mr. Hyde and that he asked her to send payment for the taxes. Before doing so she checked and found they had not been paid. She produced a tax receipt showing redemption for the 1969 and 1970 taxes. The receipt was dated September 1, 1971. She testified that the option to purchase was not the true agreement between the parties. She insisted that she first met with Mashaw and Bogard on September 28, 1970; that the instrument drawn at that time was not satisfactory; that she and Mashaw signed the last page and it was agreed that the other pages would be rewritten; that those pages were rewritten and she wás given her copy; that after she got home she read it and stopped payment on the $1000 check; and that Mr. Hyde called her about the check. She explained to Hyde that she was not satisfied with the agreement as drawn; that Hyde assured her a deed would be executed and delivered to her; and that she then sent Gulf another check for $1000.
On cross-examination she insisted that she did not receive any of the letters introduced by Mr. Bogard. She proclaimed ignorance about the contents of the option to purchase and insisted that she did not know what it meant to exercise an option. Mrs. Cox also introduced some records of payments for which Mr. Hyde did not give her credit in his testimony.
We have concluded that Mrs. Cox was entitled to prevail in this action. That is because we think the evidence is clear that Gulf waived the requirement of written notice by April 1. It is also evident that Gulf continuously accepted monthly payments made after the month in which they came into existence. In fact, the contract does not declare an exact day of the month as a deadline for payment. It does not even state that the monthly payments shall be paid during the month in which they are created. There were four significant factors which occurred after the April 1, deadline which justifiably led Mrs. Cox to believe that Gulf was treating her as a mortgagor:
(1) On April 7, 1971, Mrs. Cox was requested by Gulf’s home office to pay the insurance. “Enclosed please find a statement for the insurance coverage on your property. Since insurance payments are not included in your mortgage payments, please remit $121.00 to Benton & Owens, Inc.” (emphasis ours);
(2) In July 1971, Gulf’s home office sent Mrs. Cox four payment cards with instructions that one be used each month in making her mortgage payments (emphasis ours);
(5) The evidence is clear to us that in August 1971, Mrs. Cox was requested by Gulf to pay the property taxes, which she did; and,
(4) Under date of October 21, 1971, Gulf sent Mrs. Cox this written notice: “Just a friendly reminder your loan payment is past due. Please give this your immediate attention”, (emphasis ours.)
In the purchase option there was no mention made of payment of taxes and insurance. If Mrs. Cox, at the times she was asked to pay those items, was merely a tenant, the primary obligation for such payments was not on her but on Gulf. See 51C CJS Landlord and Tenant §§ 359 and 574.
It is true that during the period of the four recited transactions Mrs. Cox was being sent letters by Mr. Bo-gard which, if she received them, (which she says she did not) explained to her that she was merely a tenant. Mrs. Cox testified that in her state of confusion she called Mr. Hyde and he assured her that she would get her deed. Be that as it may, with the home office, by its actions enumerated above, assuring Mrs. Cox that she was a mortgagor rather than a tenant, it would be logical that she would rely on the home office actions rather than those of the attorney in Little Rock.
We think the enumerated acts of Gulf, occurring after April 1, were inconsistent with their right to written notice and any right they claimed to monthly payments being made on a day certain. In Keith v. City of Cave Springs, 233 Ark. 363, 344 S.W. 2d 591 (1961) is this statement on “waiver”:
Thus, ‘waiver’ occurs where one in possession of a right, whether conferred by law or contract, with full knowledge of the material facts, does or forbears to do something, the doing of which or the failure or forbearance to do which is inconsistent with the right or his intention to rely upon it.
Then in Sirmon v. Roberts, 209 Ark. 586, 191 S.W. 2d 824 (1946) we said in essence that one entitled to notice within a designated period cannot complain for want of the notice when, by his actions and conduct, he leads the adverse party to assume there was a waiver.
As to the effect of accepting tardy payments see Wade v. Texarkana Bldg. & Loan Ass’n., 150 Ark. 99, 233 S.W. 937 (1921). That case accords with our view.
We do not reach the question of the propriety of Mr. Bogard appearing as a witness when he was an attorney in the case. Assuming that the letters had been admitted through another procedure, the weight of the evidence was still on the side of Mrs. Cox. With respect to participating lawyers testifying, we have fairly recently discussed the subject in Montgomery v. The First Nat’l Bank of Newport, 246 Ark. 502, 439 S.W. 2d 299; Old American Life Ins. Co. v. Taylor, 244 Ark. 709, 427 S.W. 2d 23 (1968); and in Rushton v. First Nat’l Bank of Magnolia, 244 Ark. 503, 426 S.W. 2d 378 (1968).
The cause is reversed and remanded with directions that a decree be entered consistent with our findings. | [
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GhieeiN Smith, Chief Justice.
Indictments charged the three defendants with burglary and grand larceny. Each was convicted and sentenced to serve penal terms of seven years for burglary and fifteen years for grand larceny. The motion for a new trial lists sixty-three matters in respect of which error is urged. Eleven are discussed in the briefs.
On the night of June 26th, 1949, a metal safe was taken from the store of K. IT. Wilmoth at Etowah. It was found in a ditch near the highway four miles away. Indications were that it had been opened with a sledge hamm'er. Wilmoth testified that the safe contained $2,285 in money and $446 in checks. Some of the checks were recovered later, but none of the money.
Thomas K. Morrow, familiarly known as “Sonny,” is known in Mississippi County as a professional gambler and criminal suspect. He met Jack Barg while in Detroit in 1942 or 1943; but in 1949 Barg was in Chicago. Morrow met Martin Lane in January, 1949, and in June of that year he became acquainted with Harry Smith. The circumstances were that Barg, telephoning from Chicago, had tried to get in touch with Morrow. The call was answered by Morrow’s mother-in-law, who relayed the message in a manner permitting arrangements for a meeting of the four — Barg, Lane, Smith, and Morrow — at State Line, a point marking the boundaries of Arkansas and Missouri. Morrow testified that after lie was introduced to Smith, either Barg or Lane asked if he knew of a place they could ‘‘knock off”, explaining that they would like to make some “fast money”. Morrow had formerly played poker at London, Kentucky, at a public place operated by George Henderson, who was supposed to be informed regarding safe-cracking opportunities, so they drove to London and talked with Henderson, who had “backed out”. Returning, they stopped at Morrow’s home at Holland, Mo., then some or all of them went scouting for likely-looking places to rob. Morrow had been joined by his wife. At Manila they stopped at a medical clinic for Barg to make a date with Irene Rice, whose testimony was a feature of the trial.
Half a mile south of Floodway, on the road to Etowah, Morrow and his wife, with Barg and Smith, went into Homer Starnes ’ store to see if they could spot an available safe, but if Starnes owned a safe the party “didn’t locate it”. Ten or fifteen minutes later they were in Etowah. Smith went into Wilmoth’s store, returning with the explanation that the safe there “looked like a cinch”. He had asked that a $20 bill be changed. After “casing” the store they went to Manila and killed time at the Legion Hut, ascertained that Irene Rice could not leave her employment until eight o’clock in the evening, and then went to Morrow’s home at Holland. When Irene joined them considerable time was spent drinking beer and whiskey, but at a late hour Barg reminded them that business came before pleasure;
At 2:30 a. m. Barg, Lane, and Smith changed their clothing, preparatory to the business at hand. Morrow drove his car. In the Dodge that followed were Lane, Smith, and Barg. Morrow testified that after driving through Etowah he was overtaken and instructed to go back a short distance and wait. Approximately thirty minutes later the three reappeared with the safe in the “turtlehull of the car”. It was unloaded at the point where it was found in the ditch. Morrow, who moved on when the safe was dumped, said that he did not see it opened, but heard sounds like a hammer on metal. All went to Morrow’s home. Morrow was told by Lane that tJic haul had netted between twelve and fourteen hundred dollars, and he (Morrow) was given $200. lie and his wife took Irene part of the way to her place of employment, but when they returned Barg, Lane, and Smith had gone. They were overtaken at Cairo, where “motel” accommodations had been engaged for the night, but Morrow did not see Lane at that time. Barg and Smith called at his cabin, where Barg made the threat that anyone who ‘ ‘ snitched ’ ’ on him would be killed. Morrow and his wife returned to Mississippi County where they remained for two or three days and then left for California. Some time later they were arrested at Salinas and brought back. While in jail Morrow confessed. Charges against Mrs. Morrow were dismissed. At the time of trial Morrow was under bond.
The defense of each was an alibi.
The State contends that circumstances attending the arrests of appellants are in themselves evidential. Miss Eunice Brogdon is a deputy in the office of Sheriff and Collector William Berryman. She testified that on July 20th the sheriff told her to call Jack Curtis in Chicago, ‘ Sacramento 29498. ’ ’ In response a man answered the telephone and said he was Jack Curtis. Miss Brog-don told him she was “Mrs. Lee — Opal’s mother”. “ Curtis” said he was anxious to get in touch with “Sonny”, that it was important; and Miss Brogdon replied, “Well, he talked with me last night and they are in Mississippi, but will be home Saturday night or Sunday”. Miss Brog-don then inquired if he (Curtis) could be reached, and how. The reply was that a call placed Saturday night or early Sunday would be appreciated. “Curtis” told Miss Brogdon that he was a very good' friend of “ Buddy’s and Opal’s”, and that he had stayed at their home “a little while ago”. He then gave two telephone numbers, but explained that his name was not Curtis, but that it was Jack Barg. The numbers were “Nevada 20716 and Nevada 20721”. Sunday morning Miss Brog-don placed a call as directed. The voice of the man who answered was similar to that of the person who gave her the telephone numbers, and she definitely recognized that the person who then said he was Barg was the same one wlio bad first said he was Curtis, but had explained that he was Barg.
In this conversation Miss Brogdon said she was “Opal”, (Morrow’s wife). Barg wanted to know where Sonny was, saying he had to get in touch with him. Miss Brogdon replied, “Sonny didn’t come: things are hot around here”. Barg insisted that he had to contact Sonny. Miss Brogdon then said, “Well, Sonny is going to meet Irene and me at Sutton’s Tourist Court Monday night at ten o’clock, and he wants you to meet us — nan you?’’ Barg replied that he would. Miss Brogdon asked Barg if he knew where the place was. He replied that he was not certain, but when asked whether he knew where the “Spot” was Barg said he did, or in any event he could find it. Finally Miss Brogdon said: “Sonny said bring your tools and the other guys with you — you know what I mean?” The reply was, “Yeah, I know what you mean, [but] what kind of a job is it? Is it the same kind of a job we did before?” The answer was, “Well, I don’t know whether it is or not: Sonny doesn’t talk very much, you know, but it is something good”. He then said, “I get you”.
Acting upon the information given by Miss Brogdon, the Sheriff and his deputies, assisted by State Policemen, stationed themselves at Sutton’s Tourist Court, cabin No. 3 having been reserved in the name of Opal Morrow and Irene Bice! The appellants were arrested when they drove into the tourist court area in search of the two women and Sonny.
At trial Lane was the only defendant who testified. He is Barg’s second cousin. Shortly before June 26th he was told that a night club known as The Winking-Pup was for sale. Investigations revealed that it was a corporation and that Harry Smith owned twenty shares of sixty-three that constituted controlling interest. Lane spent two or three days checking the business done by Winking Pup, such as counting customers, analyzing receipts as reflected by the cash register, estimating the cost of operation, etc. On Friday, June 24th, he told Smith that he would buy the twenty shares, but did not want to close tlie deal until Saturday morning. Actually he did not take over until Saturday afternoon. In explaining this delay the witness said: ‘‘When we got hack that evening there were some beer men coming in, and whiskey men making last-minute deliveries, so we let them get through with their business. Smith then took me into the office and showed me around — showed me where the stocks were kept, and a few other things people would be interested in if they were getting into the business. Harry’s brother George was there, as was Harry”.
The so-called burglary tools found in appellants’ car when they were arrested [said Lane] were probably put into the tool compartment by a contractor who had been doing some work for “Winking Pup”. The car was bought July 10th or 11th. It was a Chrysler, on which the down payment of $1,000 was made in cash. Lane thought that the three pairs of gloves might have been left on some occasion when mechanics worked on the 'car, or perhaps one pair was for use in driving.
Barg was the only one of the three who admitted being in this State when the crime ivas committed. The explanation was that he intended to purchase stock in Winking Pup. He was hopeful that relatives living in Arkansas — his father and an uncle — would advance money for the venture. Testimony corroborating Lane’s alibi for himself and Smith placed them in Chicago when the burglary was committed. Its substantial nature could not be questioned here had the jury believed the witnesses. On the other hand, the defendants were definitely identified as having been seen with Morrow and elsewhere at the critical times spoken of by him, hence on the factual issue the evidence is not open to legal criticism.
Initially the appellants complain (a) that they were arrested without warrants, and (b) that they were denied preliminary hearings. The State’s answer (a) is that an officer may make an arrest without a warrant where he has reasonable grounds for believing that the person arrested has committed a felony. Ark. Stat’s § 43-403. It is true (b) that preliminary hearings were not given, bnt it is equally true that the defendants were released on bond in August, this Court having-refused to reduce the amounts fixed by the trial Judge. Condition of the bonds was that the defendants would answer to Circuit Court October 17th on the charges brought against them by information. The charges alleged possession of burglary tooR — an accusation not brought forward in the indictments, although as to Barg-one bench warrant recites that he was being held.on a charge of possessing- burglary tools, while a second warrant mentions burglary and grand larceny.
Appellants say that their motion to quash the indictments should have been sustained because the Court’s minutes or records did not affirmatively show that the indictments were returned in open Court in the presence of the Grand Jury, nor was it shown that twelve of the jurors voted to indict; and, secondly, there was no legal evidence presented to the Grand Jury upon which it could base true bills.
The indictment was indorsed, “Returned into open Court, in the presence of all the Grand Jury, by the foreman thereof, and filed this 17th day of October, 1949”. In passing on the motion Judge Harrison dictated a statement to the Court Reporter, the substance of which might well have been taken from the docket. After mentioning organization of the Grand Jury and the directions that it proceed to business, the statement is: “Later on the same day the Grand Jury, with an officer in charge, came into' Court and reported two true bills of indictment. Same were presented to the Court and filed, and the Clerk was directed to issue bench warrants thereon at the direction of the Prosecuting Attorney.” We think the vices mentioned in Green v. State, 19 Ark. 178, and in Shinn v. State, 93 Ark. 290, 124 S. W. 263, were overcome.
Complaint is made that the Court overruled a timely motion to require the Prosecuting Attorney to file a bill of particulars. The gist of the motion was a request for details regarding- the brand, manufacturer’s number, and other matters pertaining to the tools alleged to have been used in opening the safe. The Court directed the Sheriff to permit a complete inspection. This was sufficient. We do not discuss the request for copies of petitions that had been filed at a time when the charges were by information. These charges were superseded by the indictments, and no practical purpose can be served by speculating on what rights might have been lost if the trials had been conducted under charges filed by the Prosecuting Attorney.
The Court did not abuse its discretion in overruling motions for severance. Appellants’ counsel concedes that the trial Court was within its legal rights in directing that the three be tried together. But, say appellants, the fact that they were non-residents of Arkansas and were friendless in a jurisdiction where public sentiment might with reason be calculated to favor the store owner whose safe was taken justified recognition by the Court that there should be an exception to the rule. Under the State’s theory, and under substantial facts acted on by the jury, the transaction was a single undertaking participated in by all, and if guilty they had necessarily conspired to commit a felony. Ark. Stat’s, § 43-1802, and Notes on Decisions.
It is next argued that the Court abused its discretion in not granting a continuance. The reasons assigned are cumulative, including, as it is asserted, a denial of preliminary hearings, failure of the trial Court to hear a petition for habeas corpus, unexpected rearraignment, and the imposition of new bonds. If, as the appellants say, the Court refused to consider their petitions under habeas corpus procedure, their rights were reviewable by this Court through certiorari. Adams v. Pace, 193 Ark. 1020, 104 S. W. 2d 212. An allegation that the lower Court had arbitrarily or indifferently refused to hear the petition would be considered here. as expeditiously as though an abusive exercise of power formed the basis of complaint. Ordinarily, however, where one is admitted to bail and the conditions are not such that his movements are restricted, he will not be heard to say that lie is being illegally restrained. Stallings v. Splain, 253 U. S. 339, 64 L. Ed. 940, 40 S. Ct. 537.
The petition for a writ of habeas corpus was filed ■ October 14th — three days before Circuit Court, convened. When the indictments were returned on the 17th the petition of October 14th was amended. While in their brief appellants assert that immediately following the indictments the amended petition was filed, and that they were not able to get it heard, the record shows that the petition was not sworn to until the 18th, and the Clerk’s attestation shows that it was filed the 18th — the same day new bonds were executed and the defendants released The inference that the petition was filed on the 17th is not sustained.
Following the preliminary proceedings just mentioned the cases were set for October 25th. On that date the defendants asked for a term continuance, or in the alternative postponement to another day of the same term. There is the contention that the Court refused to hear testimony in support of the motion. In passing-on the motion Judge Harrison mentioned that it was verified, then said: “I am holding there is no legal ground for allowance of the motion”. This was in response to a defense attorney’s statement that “I have got some proof to show the reasons as set out in the motion. - I can’t get the witnesses in Court, but I can take the deposition”. After the motion had been overruled, the attorney said, “What about my missing witness”, and the Court’s ruling was, “I don’t think the record shows due diligence was used to get him here”.
The objection in respect of which there was an exception goes to the single point of the absent witness and the general statement that proof in support of the formal motion could be submitted. But the Court treated the statements as true, and held as a matter of law that good cause had not been shown. Crux of the controversy was the inability of the Pulaski County Sheriff to serve a subpoena on Joe Puff. In making an objection a defense attorney said it was his belief that the subpoena was sent from Osceola October 15th. A Clerk’s deputy testified that the request was not made until October 22d. A letter accompanied the Pulaski County Sheriff’s return, stating that Ruff was out of the city and would be for several days. There was testimony that this letter was given to one of the attorneys for the defendants. We agree with the trial Court that the motion should have been denied.
Assignment No. 5 complains of the Court’s refusal to suppress evidence thought to have been illegally procured. To this end rules of Federal practice are invoked. It is sufficient to say that our own decisions support the trial Court in the particulars pointed to.
Assignment No. 6 involves transactions treated under other headings.
When the Prosecuting Attorney (Assignment No. 7) asked that Allen Levin be recalled for additional cross-examination, a courtroom colloquy brought the comment from a Deputy Sheriff that “One of these witnesses is back there — this Russian Jew.” On objection that the remark, made in the presence of the jury, was prejudicial, the Court told the jury that it was “highly improper and ought not to have been made, and you are told not to consider it for any purpose or under any circumstances.” There was no objection that the admonition was insufficient.
Under Assignment No. 9 there is complaint of what the defendants insist was the trial Court’s partiality in asking, from time to time, whether certain testimony would be objected to by the State. It is said that on seventeen occasions “objections” were interposed b}^ the Court. Our examination of the records shows that when collateral matters were being discussed, and when the particular subject had been pursued to a point beyond relevancy, the Court asked if there was an objection. It is not contended that the rulings were in all cases erroneous, but that the Court’s careful attempt to restrict the examinations to essentials created an impression in the minds of jurors that the Court believed the defendants were guilty.
It is the Court’s duty, irrespective of objections or the want of them, to see that a trial is conducted along orderly lines. Certainly nothing suggestive of a personal opinion regarding the facts should he said or even intimated, and complete freedom from bias must prevail insofar. as attitude may be said to be reflected by word, inflection, or intimation. But this does not mean that a Court cannot restrain what are sometimes spoken of as “fishing expeditions,” or tedious repetition of questions when the subject has been exhausted, and like conduct. We do not find that the complaints of judicial prejudice are justified.
In Assignment No. 9 appellants ask that prejudice be predicated upon that part of the Sheriff’s testimony in which he detailed how the telephone numbers given to Miss Brogdon were procured by him from Mrs. Lee. Admission of this evidence [appellants say] was the foundation upon which Miss Brogdon’s testimony (characterized as hearsay) was predicated. In the brief it is said: “Miss Brogdon specifically [testified] that she does not know to ivhom it was she was talking.” The quotation is lifted from its connected position. What the witness said was that she called by telephone after the numbers were given to her, that a man who said he was Jack Curtis talked, and in doing so mentioned things disclosing information regarding people and places in Mississippi County and adjoining Missouri; that he later explained that the real name was Jack Barg, and that she (Miss Brogdon) distinctly identified “Curtis” and “Barg” as the same person because'the voice was the same.
By Assignment No. 10 it is contended that reversible error occurred when the Prosecuting Attorney, on cross-examination, was permitted to refer to defense witnesses as “Jews, Bnssian Jews, and Just Plain Jews.” (Transcript pages cited are 513-19-35-46, and 610.)
The expression does not appear in the cross-examinations as a single phrase. This is made clear when the exact language is read, showing questions and answers. It is always improper to gratuitously comment on any personal matter not essential to the controversy and not collaterally important, when in doing so the questioner or commentator discloses a scornful attitude or assumes a derisive manner. It must be presumed that if this had been done in the case at bar an appropriate admonition would have been given by the Court. Whether such re-proval would have been sufficient to erase the harm cannot be determined here because the issue is not properly presented.
There had been testimony that in conversations between themselves and otherwise the defendants spoke a language not understood by the witnesses who testified for the State. Allen Levin, when asked if he spoke any foreign languages, replied that he spoke “his native tongue, Jewish.” He also spoke Yiddish very well. The questions were objected to.
George Smith (defendant Harry Smith’s brother) was asked if he spoke Yiddish and replied that he did not. Question: “What is your nationality?” A. “Russian.” Q. “Russian Jew?” A. “No, Russian.” Q. “Not a Russian Jew, Mr. Smith?” A. “No.” Following action of the Court in overruling an objection at this point, the Prosecuting Attorney added: “The question I asked you was whether you speak Russian [or] Yiddish: do you understand Russian? ” A. “ I understand very little Russian. As far as speaking it, I haven’t spoken Russian since my mother died. I don’t know much about it.”
Edward Abbess, a defense witness, testified that he was born in Texas, but went to Chicago in 1926 and knew Martin Lane — “just got acquainted with him there at the Winking Pup.” Question: “What is your nationality?” A. “Mexican.” Q. “You don’t happen to speak a little Russian or Yiddish, do you?” A. “No, sir.”
Louis Miller was a bartender on South Crawford street, two or three blocks from Winking Pup. He was asked if he spoke Yiddish and replied that he did not. Question: “What is your nationality?” A. “Jewish.” Q. “Russian Jew?” A. “No, I was born here in the United States.” Q. “Just plain Jew?” A. “That is right.” When an objection was interposed the Prosecuting Attorney said, “T mean by that you are not from Russia. ’ ’
Lane testified that lie spoke some French, a little Italian, and “a sprinkling of Pig Latin.” There had been testimony that one or more of the defendants, while rising the telephone, spoke in an unfamiliar tongue. It is quite clear that the Prosecuting Attorney had this background in mind while examining the witnesses, and in his summation of the cases.
It is next argued that the jury was improperly instructed regarding conviction on the uncorroborated testimony of an accomplice. Contention was that the Court failed to say that the evidence upon which a conviction rests must be independent of and unaided by the testimony of the accomplice.
The Court in express terms told the jury that Morrow and his wife were accomplices and that it would be necessary to find from other testimony facts supporting the accusations; and, [said the Court] . . . “the corroboration is not sufficient if it merely shows that the crime was committed and the circumstances thereof; but you are instructed that the amount of such corroborating evidence and its weight are matters solely for the jury; and if you find that such witnesses have been corroborated by the evidence, either positive or circumstantial, other than their own, tending to show that the crime was committed, and connecting the defendants, or either of them, with the commission, you will be justified in convicting the defendant, or defendants, so connected, provided you believe him guilty from all of the evidence in the case, and beyond a reasonable doubt.”
The instruction, given in cases where there was substantial corroborating testimony, was correct. We are not cited to any decision requiring an instruction containing independent of and unaided by.
Many other matters are discussed in the 245-page brief and abstract appellants have filed, with citations to the 640-page record. None is of a character involving principles not settled by our decisions, hence a protracted discussion would be academic. All have been examined and prejudicial error is not shown.
Affirmed. | [
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■Smith, J.
The, facts out of which this appeal arises are sufficiently stated in the opinion on a former appeal. Stafford v. First National Bank, 178 Ark. 997, 13 S. W. (2d) 21. Only such facts will therefore be restated as are necessary to an understanding of the legal principles which we find to be controlling on this appeal.
In the former opinion we held that an instruction, there set out, which submitted to the jury the question whether the deposit garnished was a special deposit, should have been given. Upon the remand of the cause this question was submitted in an instruction substantially conforming to the instruction which we said should have been given.
It was contended on the former appeal, as it is here, that the deposit garnished was not the individual property of the judgment defendant, but belonged to a partnership of which he was a member. The testimony was sufficient to support a finding either way on this question of fact, but we reversed the judgment on the former appeal because of the error of the court in defining a partnership. Upon the present appeal no objection is made to the definition of a partnership which the court gave.
The validity of the writ of garnishment was questioned on the former appeal, but we did not set out the testimony relative to its validity, because, as we there said,, “the court did not submit that issue to the jury on his own motion, and no request was made by appellants for him to do so.”
This question was submitted, however, at the trial from which this appeal comes, and arises out of the authority or lack of authority of Miss Bullock to issue the writ of garnishment. This lady appears to have been a factotum in the clerk’s office, and to have been for about two years prior to the issuance of the writ, but she had not formally been appointed a deputy, because she was under age. The circuit clerk testified, in effect, that Miss Bullock was his alter ego; that she was his stenographer and did his typewriting, and that she had full authority to sign his name officially and to attach the seal of his office when required, and that she had authority to issue in his name the writ of garnishment which she did issue in this case. The testimony appears to be undisputed that much of the business of the clerk’s office was transacted by Miss Bullock, and that she signed the clerk’s name when required. The issue as to her authority was submitted to the jury under an instruction which reads as follows: “1. If you find from the proof in this ease that Miss Bullock, who issued and signed the writ of garnishment in controversy here was orally authorized by the clerk of the circuit court of Cross County to perform all the duties of his office in his absence, that this authority was given orally, and you further find that she entered into the apparent possession of the clerk’s office and worked in this office for a long period of time prior to the issuance of this writ of garnishment, and you further find that during all this time she was performing the duties of the clerk, and that the general public acquiesced in this condition and situation, and it was genr erally understood by the public at large during this time that she was performing these services, and that the public generally accepted her services under the condition and circumstances aforesaid, then you are told that she had a right to issue this writ of garnishment. ’ ’
The jury’s verdict concludes this issue of fact, but the question of law remains, whether, notwithstanding these facts, the writ was void because actually issued by the hand of one not a legal deputy. We think the writ was valid.
At § 151 of Constantineau on the De Facto Doctrine it is said: “A person who enters into an office and undertakes the performance of the duties thereof by virtue of an election or appointment is an officer de facto, though he was ineligible at the time he was elected or appointed, or has subsequently become disabled to hold the office. Indeed, 'it is settled by a current of authority almost unbroken for over 500 years in England and this country, that ineligibility to hold an office does not prevent the ineligible incumbent, if in possession under color of right and authority, from being an officer de facto with respect to his official acts, in so far as third persons are concerned.’ The reason of the rule is that 'ineligibility of an officer is as difficult of ascertainment as his actual election, and sound policy requires that the public should be no more required to investigate the one than the other, before according respect to his official position.’ ”
Here Miss Bullock was in possession of the office under the authority of the de jure clerk, for whom she was acting and in his name. The clerk not only does not question, her authority, but he confirms it, and we therefore hold the writ was not invalid as having been issued without authority.
The testimony shows that Miss Bullock had the authority which Davidson did not possess in the case of Daughtery v. Garner, 169 Ark. 368, 275 S. W. 706, and that case, therefore, is not contrary to the conclusion here announced. Indeed, it accords with the view here expressed, for it was there held (to quote a head-note) that "a transcript signed by a person not authorized either expressly or by implication, to act as deputy clerk,, is not properly authenticated, and will be stricken from the files.” Miss Bullock possessed the authority to issue the writ, and it was therefore not void.
As no error appears in the judgment, it must be affirmed, and it is so ordered. | [
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Richard B. Adiusson, Chief Justice.
This is the second time this case has been before us. The first time the conviction of appellant, Floyd Washington, was reversed and remanded in Washington v. State, 271 Ark. 420, 609 S.W.2d 33 (1980) (hereinafter Washington I). There, we held that the trial court erred in admitting one of appellant’s prior convictions for sentence enhancement purposes. Upon retrial, appellant was again convicted of aggravated robbery and sentenced as a habitual offender to life imprisonment and a $15,000 suspended fine. Appellant now argues that the trial court erred by failing to follow the law established in the first case regarding the use of prior convictions for sentence enhancement purposes. On appeal we affirm.
In Washington I, the crime for which appellant was on trial was committed on June 8, 1979. In that case two prior convictions were introduced for sentence enhancement purposes:
Date of Commission Date of Crime of Crime Conviction
(1) Robbery February 1, 1974 May 13, 1974
(2) Aggravated Robbery June 14, 1979 December 5, 1979
On appeal, we held that the introduction of the December 5, 1979 prior conviction was error, stating that the conviction date of the prior offense (December 5,1979) must precede the date of the commission of the principal offense (June 8, 1979) in order for the prior offense to be admissible for enhancement purposes.
Then, in the subsequent cases of Conley v. State, 272 Ark. 33, 612 S.W.2d 722 (1981) and yet another Floyd Washington case, Washington v. State, 273 Ark. 482, 621 S.W.2d 216 (1981) (hereinafter Washington II), we reversed our ruling in Washington I and held that any prior conviction was admissible for sentence enhancement purposes, stating that the time of conviction in relation to the principal offense was irrelevant.
After our Washington II decision, Washington I came up for retrial. On retrial our rule in Washington I was not followed. Although a different prior conviction was substituted for the erroneous one used in Washington I, it too was one in which the date of conviction did not precede the date of the commission of the principal offense.
Appellant now argues that the law as established in Washington I, although erroneous under Conley and Washington II, should have been followed because of the doctrine of the law of the case. We do not agree.
The doctrine of the law of the case is that the decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review. Mayo v. Ark. Valley Trust Co., 137 Ark. 331, 209 S.W. 276 (1919). However, it is not an inflexible doctrine; it does not absolutely preclude correction of error. Ferguson v. Green, 266 Ark. 557, 587 S.W.2d 18 (1979). The doctrine of the law of the case is inapplicable where, as here, during the interim between our decision in Washington I and retrial, we correctly set forth the applicable law in Conley and Washington II and this case law was followed on retrial.
Affirmed.
Purtle, J., dissents. | [
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Dunaway, J.
Appellant Citty sought to recover from appellee Sharpe for damages sustained as a result of loss by fire of a truck owned by appellant. Purchase of the truck had been financed through appellee’s company, and as basis for recovery against appellee, appellant alleged breach of an oral contract to provide insurance coverage on the truck. The trial court directed a verdict for the defendant at the conclusion of plaintiff’s testimony. Prom that action comes this appeal.
In August, 1947, M. L. Citty, appellant’s brother, bought a panel truck for $1,500, financing payment of the purchase price and insurance through appellee, doing business as Texarkana Finance Company. Prom the record it appears that a renewal policy of insurance for $1,500 was issued August 22, 1948, to expire April 22, 1949. This policy was made payable to M. L. Citty and C. E. Sharpe, as their interest might appear. The Certificate of Insurance recites an encumbrance on the truck of $608, payable in eight installments of $76 each, with the final installment due April 16, 1949. The insurance premium was $38.92.
On June 10, 1948, appellant bought the truck from his brother, paying him $400 and assuming the balance of the indebtedness due appellee. Appellant continued to make the monthly payments of $76 under the contract of his brother with appellee until January, 1949.
At that time he desired to have the monthly payments reduced, and entered into a new contract with appellee. There remained unpaid on tlio original noto the sum of $304. On /January 11, 1949, appellant paid four dollars in cash, and executed a new note in the amount of $330, representing the unpaid balance on the old note plus the agreed interest at ten per cent. That note and mortgage contained this provision concerning insurance on the truck: “The Mortgagor Agrees as Follows: . . .
“That the Payee hereof or assigns ma3 keep said motor vehicle insured to the full amount due on this note or such part thereof as they may be able to obtain with loss payable to Payee as his interest may appear.”
The truck was destroyed by fire in June, 1949. When this was reported to appellee with a request that the insurance company be notified, appellant was informed that the insurance on the truck had expired April 22, 1949. Thereafter, this action was begun to recover from appellee the sum of $1,250, alleged to be the market value of said truck when it was destroyed.
Appellant testified that appellee in June, 1948, had agreed to have the policy of insurance then in force changed from his brother’s name to that of appellant; that this was not done, with the result that he did not receive the notice from the insurance company that the policy would expire on April 22, 1949. He further testified that when the new note and mortgage were executed in January, 1949, appellee told him that the insurance remained unchanged and that he would have coverage until the truck Avas paid out.
It is undisputed that appellee did not charge or collect any premium for insurance when the new note Avas executed. The lights of the parties must be determined by the written contract of January 11, 1949, which could not be varied by parol. Graves v. Bodcaw Lumber Co., 129 Ark. 354, 196 S. W. 800.
At most appellant could introduce testimony of a verbal contemporaneous agreement only in explanation of the ambiguous language of the contract already quoted, that appellee might insure the truck for the amount due on the note. At the trial appellant admitted that he had made no payments since the fire and that there remains unpaid on the note the sum of $180. Even assuming an agreement on the part of appellee to procure insurance to the amount of the unpaid balance of the note, the amount remaining unpaid would be the limit of his liability to appellant for his failure to do so. Since it is admitted that appellant has not paid the balance due at the time of the fire, he has not shown that he has been damaged.
We hold, therefore, that the trial court correctly directed a verdict for appellee. Appellant can still raise this issue in defense if appellee seeks to recover the balance due under the note of January 11, 1949.
The judgment is affirmed. | [
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Frank Holt, Justice.
The appellant, a Florida resident, brought this action to reform a $20,000 note and mortgage given to him by the appellees, Wayne Roberts and his wife, Hazel Bishop Roberts. Reformation was sought upon the allegations of fraud and other inequitable conduct on the part of the Robertses. Appellant Turney also sought foreclosure and subrogation as to a previous encumbrance (Denham) on the real property. The Robertses admitted execution of the note and mortgage and interposed usury as á defense. Subsequently, cross-appellee Richardson filed an intervention alleging that the Robertses were indebted to him for $3,000. He also sought subrogation. The Robert-ses invoked, inter alia, the statute of frauds to avoid payment of the Richardson loan. The chancellor sustained the Robertses’ defense of usury and cancelled their note and mortgage to Turney who brings this direct appeal. The chancellor upheld the contentions of intervenor Richardson. The Robertses cross-appeal from that part of the decree favorable to Richardson.
Appellant Turney and cross-appellee Richardson had loaned $17,000 and $3,000 respectively to the Robert-ses to redeem their property (bid in for $33,250) before the .actual sale in a foreclosure proceeding instituted by Edward Denham and his wife. After receipt of the alleged loans, the appellees paid into the court registry the sum of $19,424.21 to redeem their property.
We review the pertinent evidence with reference to both loans. For approximately a year preceding the Turney loan, the Robertses and the Richardsons had lived in Texas as neighbors and frequently visited each other. Richardson and the Robertses were employed at a Mexican Baptist children’s home. During this time and before the $5,000 loan, it appears that the Robert-ses had borrowed money occasionally from the Richard-sons and $862.62 of these loans remains unpaid. When the Denhams’ foreclosure proceeding was instituted against the Robertses’ Arkansas property, they endeavored to secure a $20,000 loan from the Richardsons. Roberts represented to them that the value of their Arkansas home and property was approximately $250,000 and, by the foreclosure proceeding, they would lose everything including opening a children’s home, which they were planning to do. Roberts "bothered us all the time” about loaning him funds to pay off the Denham note. Roberts himself persisted to the extent he actually drafted a note and mortgage for $20,000, saying he would like to make it $25,000 in order to meet his needs for living capital. Richardson told Roberts that he and his wife were unable to raise the money for the requested loan. About a month later the Richardsons loaned $3,000 to Roberts when he exhibited to him a $17,000 cashier’s check which represented a loan recently made to him by appellant Turney. Roberts insisted in his renewed plea for assistance he was in desperate need of another $5,000 and told the Richardsons their name would be on the $20,000 Turney mortgage. He gave them a receipt (check) indicating that the loan was part of a mortgage payment. No rate of interest was discussed. Roberts had shown them an abstract, deed and an appraisal of the property when he told them it was worth $250,000. He persuaded them to believe that he wanted to sell it and use the proceeds for building a children’s home and the property had increased in value because an organization was going to build a shopping center on the Arkansas property. He assured them the loan would be needed no longer than three weeks. Through a minister friend, Arnold Lawrence Robertson, the Richardsons understood that appellant Turney was a very religious man who devoted much of his time and effort to Christian work and projects.
Robertson, the minister, testified he had known appellant Turney and his Christian endeavors for almost twenty years. The minister further testified that he had known the Robertses for about seven years. He was in Texas and present when a discussion arose between the Robertses and the Richardsons about building a children’s home. Roberts, however, mentioned that his Arkansas property was being foreclosed and Mrs. Roberts was upset and weeping about it. The possibility of getting money from foundations that build children’s homes was discussed as a source of a loan. Robertson told the Robertses that he had no contacts in Texas and if he found anybody in Greensboro, North Carolina, where he was going he would let him know. Shortly thereafter, the minister was surprised when he received a call from Roberts who was in Greensboro. Roberts wanted to see a local individual which he was unable to do that day. The minister then called appellant Tur-ney, a friend of his, in Orlando, Florida, and told Turney in Roberts’ presence that Roberts, also a friend, was in Greensboro; that it would be necessary for him, Roberts, to borrow approximately $17,000 to pay off a mortgage on his home in order for him to be able to sell it and invest the proceeds in a children’s home. Then he heard Roberts talk with appellant Turney on the phone telling him he would pay 10% interest on the requested loan and would give him a bonus if he, Roberts, could sell his property within a short time. He heard Roberts assure Turney that his home was valuable property which included fifty or sixty acres. As previously indicated, the minister and appellant Turney had been friends for several years. They had worked together in children’s projects and each assisted in the Christian Missionary Movement called Transworld Radio.
Appellant Turney verified the minister’s testimony about his introduction to Roberts by telephone from North Carolina. This conversation lasted about one hour. Roberts was in urgent need of $17,000 to pay off a mortgage on his home. He was so desperate he cried during the conversation. Thereafter, Roberts persisted in calling Turney from different locations in Texas and said he would like to come to Florida. On September 3, 1971, after calling Turney, Roberts flew to Orlando where Turney picked him up at the airport. Roberts did not know whether Turney had funds for a loan; however, Turney and his wife went to a bank and raised $17,000 by pledging their son’s college funds, a life insurance policy, and by cashing their savings bonds and checking accounts. Roberts had told Turney before he arrived that he would have a note and mortgage made to them on his Arkansas property which was worth $275,000. Roberts had with him one note for $20,000 dated September 1, 1971, drawing 10% interest, secured by a mortgage of even date payable in forty-five days. The length of the loan was determined at the bank. He also left his deed to the property. He was in Orlando about three hours during this transaction at the bank. Roberts again assured him that the property was worth between $250,000 and $275,000. Roberts “broke down and cried” at the bank when he received the $17,000 loan. At that time Roberts voluntarily, to Turney’s surprise, acquired a blank note and completed it in the face amount of $5,000, without interest, and tearfully presented it as a gratuity or bonus to Turney. Roberts showed Turney some papers involving the sale of two pieces of property at $700,000 to $800,000. He assured Turney that within a month and a half that the large real estate transaction would be completed.
Turney testified that Roberts “assured me at the bank that he was well aware of all legal implications, and that’s the reason why he had everything fixed up [$20,000 note and mortgage] before he came; and he assured me, gave me assurance that everything was right, and everything was above board. That’s the reason why he had taken care of it so well. I was amazed with the experience that he seemed to have, and with the portfolio that he brought down with him, with — showing me the pictures of his property in Texas — the children and all like that.” At the bank Turney told the banker he was loaning $17,000 to Roberts, showed him the mortgage, and consulted with the banker who said it “looks alright to me.”
Appellant Turney testified that he and Robertson, the minister who introduced Roberts to him on the phone, were very close friends and that his introduction about Roberts was “good enough for me.” Turney is on the board of directors of the Transworld Radio Gospel Broadcasting operation which broadcasts in 26 languages off the coast of South America. He spends each weekend trying to raise funds for this cause and pays his own expenses. Appellant is approximately fifty years of age, and has served in the U. S. Air Force as a supply systems analyst for twenty-seven years. For the ' past year he has been in business for himself. His experience in loan transactions is limited to the purchase of his house, buying a car, and a bank loan. In fact, he did not have the Roberts mortgage recorded until it became necessary to file a suit for collection of his loan. Although the appellant filed a verified complaint seeking recovery of $25,000 or the total of the two notes, he denied he authorized a local Florida attorney to instruct the Arkansas attorney to seek recovery in excess of the actual loan which was $17,000. The Arkansas attorney promptly amended the complaint to seek recovery of only $17,000 plus 10% interest per annum when it was first brought to his attention that this figure was the correct amount of the loan. Neither of the Robertses testified.
The chancellor correctly held that the transaction is usurious. Ark. Constitution, Art. 19, § 15, renders a contract void and unenforceable when the contract exceeds 10% interest. Here the loan bearing 10% interest was exceeded by $3,000. Obviously the chancellor was troubled in cancelling the indebtedness. As abstracted, he observed:
Roberts deserves the strongest condemnation and by all basic equitable principles [clean hands], should be ‘sent hence without day,’ but for the strong public policy of this state. If it were not for the posture of Turney and the Constitution [Ark. 19, § 13] as construed by the Court, the decision would be against appellee.
We agree that the transaction presented a troublesome problem in view of our rather strict interpretation of our usury law. However, we have long recognized that written instruments are subject to reformation. In Arnett & Arnett v. Lillard, 245 Ark. 939, 436 S.W. 2d 106 (1969), we said:
Equity will reform written instruments in two cases: [1] Where there is a mutual mistake — that is, where there has been a meeting of minds — an agreement actually entered into, but the contract, deed settlement, or other instrument, in its written form, does not express what was really intended by the parties thereto, and [2] Where there has been a mistake of one party accompanied by fraud or other inequitable conduct of the remaining parties.
To the same effect is Hervey v. College of The Ozarks, 196 Ark. 481, 118 S.W. 2d 576 (1938), Davidson v. Peyton, 190 Ark. 573, 79 S.W. 2d 734 (1935), Commonwealth Bldg. and Loan Assn. v. Wingo, 189 Ark. 1033, 75 S.W. 2d 1008 (1934), Barton Mansfield Co. v. Wells, 183 Ark. 174, 35 S.W. 2d 337 (1931), and Welch v. Welch, 132 Ark. 227, 200 S.W. 139 (1918). In order to reform a written instrument, the evidence must be clear, convincing, and decisive. Hervey v. College of The Ozarks, supra.
In Welch v. Welch, supra, the court recognized that “[AJlmost all written instruments may be reformed when a proper occasion is furnished.” In the case at bar, we are of the view “a proper occasion” is presented for reformation of the note and mortgage, based upon clear, cogent, and convincing evidence. The evidence is uncontradicted that the lender was mistaken in that be believed, due to the borrower’s misrepresentations, that the transaction met the requirements (“legal implications”) of Arkansas law. In addition, the borrower’s conduct and misrepresentations certainly taint the transaction with fraud or at least with inequitable behavior. We perceive no valid rationale why a usurious contract is immune to reformation. Our usury law is not so ironclad nor designed to provide an impenetrable shield so as to prevent absolutely an action for reformation of a written instrument. We hold that the Roberts note and mortgage should be reformed to reflect $17,-000 indebtedness, bearing ten percent per annum interest, to appellant Turney. To that extent the decree is reversed. However, we do not determine any subrogation rights as to appellant.
On cross-appeal the Robertses contend that the “court erred in subrogating Leonard E. Richardson to the rights and priorities of” the Denhams. Cross-appellants, the Robertses, invoke the statute of frauds with respect to the collection of the $3,000 Richardson Loan. They make the argument there is nothing to support the existence of this loan other than the testimony of Richardson and his wife that their name would be on the $20,000 mortgage which the Robertses had executed to Turney. Further, they assert there is no evidence that the $3,000 borrowed from the Richardsons was for the purpose of used to redeem the Roberts land from the foreclosure proceedings. We disagree. The cashier’s check for $19,424.21 made payable to Denham on September 16, 1971, (following both loans) in redemption of their property from the foreclosure sale, is marked “R. D. Turney and T. [L.] E. Richardson for Wayne Roberts.” Roberts’ individual check (apparently a receipt), also dated September 16, 1971, was made payable to Richardson and marked “Loan balance on Denham payoff of purchase price money on 10 A. Real Prop.” This coincides with the date of the Richardson loan. Therefore, as the chancellor held, the evidence is amply sufficient that the Richardsons loaned $3,000 to Roberts to pay off the Denham indebtedness and, further, the evidence is sufficiently clear to take Richardson’s claim out of the statute of frauds which the Robertses asserted as a defense to payment of the loan. As the chancellor held, Richardson is entitled to subrogation to the rights and priorities of the Denhams. The doctrine of subrogation is of equitable principles. Cowling v, Britt, 114 Ark. 175, 169 S.W. 783 (1914). Whenever one loans money to another to pay off a realty encumbrance with the understanding that the loan is for that purpose, he is entitled to be subrogated to the rights of any previous encumbrances. Stephenson v. Grant, 168 Ark. 927, 271 S.W. 974 (1925).
The Robertses, as cross-appellants, next contend that the court erred in rendering any judgment against Hazel Bishop Roberts, wife of Wayne Roberts, as to the $3,000 Richardson loan. We find merit in this contention. We do not consider, as asserted by Richardson, the issue is raised the first time on appeal. In answer to Richardson’s intervention, Mrs. Roberts, in her joint answer with her husband, raised the issue of her alleged indebtedness by a general denial. The record, as abstracted, does not appear to reflect the parties presented memorandum briefs limiting the issues. As to the evidence, a cashier’s check, previously mentioned, was remitted by Turney and Richardson “for Wayne Roberts” as payment of the Denham judgment. Richardson himself testified, as to his individual loan, “Mr. Wayne Roberts is the one who asked us [Richardson and his wife] for it and it was loaned to Mr. Wayne Roberts.”
The decree is affirmed as to Richardson’s judgment except as to Mrs. Roberts. The decree is reversed and the cause remanded on direct appeal and on Mrs. Roberts’ cross-appeal for proceedings not inconsistent with this opinion.
Affirmed in part and reversed in part. | [
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J. Fred Jones, Justice.
This is an appeal by Patrick Anthony Keating from a circuit court order denying post-conviction relief under our Criminal Procedure Rule 1. Keating was charged, on informations filed by the prosecuting attorney, with two separate counts of burglary and grand larceny committed on May 30, 1970, and on June 4, 1970. He was apprehended in the state of Missouri and, after waiving extradition, was returned to Arkansas on June 8, 1970, at which time the informa-tions were filed against him. His case was set for jury trial on November 9, 1970, at which time Keating, with the assistance of counsel, entered pleas of guilty to both counts and sentencing was deferred at the request of his counsel until November 13, 1970. On that date the trial court entered judgment sentencing Keating to ten years in the penitentiary on one of the counts with that sentence suspended. Keating was sentenced to five years in the penitentiary on the other count with that sentence to be served. Keating did not appeal from his judgments of conviction but on May 31, 1973, he filed his own handwritten petition for post-conviction relief on the grounds that he was not given a preliminary hearing and that he should have been charged or released within 72 hours following his arrest.
The record before us indicates that the pleas of guilty and penalties assessed were the result of plea bargaining; that the prosecuting attorney recommended the suspended sentence on the one charge and the five years to be served on the other charge and that Keating and his attorney acquiesced in the recommendations. The trial court announced that he would follow the recommendations made by the prosecuting attorney and then pronounced the sentences on Keating as above stated.
In his brief on this appeal Keating recognizes that under Ark. Stat. Ann. § 43-806 (Repl. 1964) the prosecuting attorney may file information direct and a preliminary hearing is not required. No evidentiary hearing was had on the petition for post-conviction relief but the trial court denied the petition on the basis of the petition and the original record preserved at the time the pleas of guilty were entered and sentences imposed.
Paragraph (C) of our Criminal Procedure Rule 1 provides as follows:
“If the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files or records that are relied upon to sustain the court’s findings.”
The trial court did, in its final order denying the petition, set out its findings from the record that Keat-ing was arrested in the state of Missouri on June 4, 1970; that he waived extradition and was returned to the state of Arkansas on June 8 and was properly informed against directly on June 8, 1970; that bond was set on that day; that Keating failed to make bond and on November 13, 1970, in person and with his attorney, Keating entered pleas of guilty and the sentences were imposed.
Keating now argues on this appeal that the sentence of five years to be served, was too severe for the crime involved. Of course, where a sentence is in excess of the maximum authorized by law, a prisoner would be entitled to relief under Section (A) (c) of our Criminal Procedure Rule 1, but that is not the situation in the case at bar. The record before the trial court revealed that at the trial on November 9, 1970, the court asked the following questions and received the following answers from Keating:
“COURT: You have talked to your Court appointed counsel about each of these crimes of Burglary and Grand Larceny?
DEFENDANT: I did.
COURT: You understand the punishment for them?
DEFENDANT: Yes, sir.”
The trial court in pronouncing the sentences inquired directly from Mr. Keating whether he understood what good behavior meant and Keating replied that he did. The court then inquired whether Keating understood the sentences and Mr. Keating replied that he did.
The statutory penalty for burglary is fixed at not less than two nor more than 21 years. Ark. Stat. Ann § 41-1003 (Repl. 1964). The statutory penalty for grand larceny is fixed at not less than one nor more than 21 years. Ark. Stat. Ann. § 41-3907 (Repl. 1964). The penalties fixed by the court in the case at bar were well within the statute and are not subject to attack under our Rule 1, Credit v. State, 247 Ark. 424, 445 S.W.2d 718, especially when it is raised for the first time on appeal. Bailey v. State, 254 Ark. 628, 495 S.W. 2d 150.
The judgment is affirmed.
Fogleman, J., not participating. | [
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Humphreys, J.
Appellant was indicted in the circuit court of Lincoln County on May 22,1930', for selling intoxicating liquors, and was tried and convicted of the crime on September 15 following, and was adjudged to serve a term of one year in the 'State Penitentiary as a punishment therefor, from which judgment of conviction he has duly prosecuted an appeal to this court.
The first assignment of error relied upon for a reversal of the judgment was the refusal of the court to postpone the trial until the next morning, the 18th of September, for time to procure the attendance of a witness by the name of Gergis Gassaway who wonld have testified, if present, that no arrangements were made in his presence by W. J. Shipp to 'buy intoxicating liquors from appellant, and that he bought none from him in his presence and hearing. The request for a postponement of the trial was made after 'both sides announced ready for trial, and after four members of the petit jury had been selected to try the case, at which time appellant first learned that Shipp would testify that arrangements for the purchase of the whiskey were made in the presence of Gergis Gassaway. W. J. 'Shipp was the chief prosecuting witness whose name was indorsed on the indictment and who testified in the trial of the cause that he made arrangements to buy two pints of intoxicating liquor from appellant in the presence of Gergis Gassaway and that he believed Gassaway was present when appellant returned with the whiskey and received pay for same.
The trial court did not abuse its discretion in refusing to grant a postponement of the trial, as appellant failed to show diligence in the procurement of his witness before the trial began. Shipp’s name was indorsed upon the indictment and by interviewing him appellant could have obtained information relative to the circumstances of the alleged sale long before the trial began. He was not triedffor about three months after he was indicted. Had he exercised proper diligence, he could easily have procured the attendance of his witness, Gergis Gassaway, without having to ask a postponement of the trial to do so. Appellant lost the benefit of the testimony of Gergis Gassaway through his own neglect, and not on account of an 'abuse of discretion by the trial court.
The next assignment of error relied upon for a reversal of the judgment is because the court instructed the jury as follows relative to the possession of liquor at different times, to-wit:
“The defendant is charged with selling liquor. The admission of the testimony of his having possession of liquor at different times was to enable you to determine, as one of the circumstances in the case, whether or not he was guilty of selling the liquor' as charged in the indictment, and you may consider it for that purpose and that purpose alone.”'
'Appellant admitted on cross-examination that he had been convicted three times in Lincoln 'County for unlawfully possessing liquor, but explained that he 'bought the liquor for private use and not to sell, and that he pleaded guilty because he was frightened and followed the advice of officers who told him it was best to do so. He admitted though that the officers made no threats in order to induce him to plead guilty to possessing liquor for sale.
J. M. Harvey, a justice of the peace, testified that at the time appellant was arrested for selling liquor to Shipp he pleaded guilty in his court to a charge of possessing liquor for sale.
Appellant argues that the above instruction given by the court assumed that he had liquor in his possession on different occasions for sale,, and that the effect of the instruction was to exclude his explanation from consideration by the jury, and that it really was an instruction upon the weight of the; evidence. The instruction is not susceptible of the construction placed upon it iby appellant. Its meaning, properly construed, is that the jury might consider the testimony which had been introduced relative to the possession of liquor at different times as a circumstance in arriving at appellant’s guilt or innocence. The instruction did not tell the jury that the possession of liquor at different times tended to show that appellant was guilty of selling liquor, but that they might consider possession thereof at different times as a circumstance in arriving at his guilt or innocence. Nor did it tell the jury to ignore appellant’s explanation of the possession thereof at different times. The possession and explanation thereof was submitted to the jury merely as one circumstance in the case to be weighed along with all the other evidence by them in arriving at appellant’s guilt or innocence. The instruction is in no sense an expression by the court upon the weight of the evidence. The jury was not told what weight to attach to the circumstance of the possession of liquor at different times.
The next assignment of error relied upon for a reversal of the judgment is that the instruction referred to was given orally 'by the court. Appellant did not ask the court to reduce the instruction to writing, and did not specifically object to it on the ground that it was oral instead of in writing. Only a general objection was interposed to the instruction, presumably upon the ground that it was an erroneous statement of the law applicable to the facts.
No error appearing, the judgment is affirmed. | [
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McHaney, J.
In November, 1926, the appellees entered into a three-cornered rental contract as follows: Hutto was to furnish the land and “necessary hay to feed the Pruetts’'stock during the making of the above mentioned crop. ” Pruetts were to pay Hutto, as rent for the land, one-fourth of all cotton and cotton seed, one-third of the com, and ten dollars per acre for the alfalfa land. Perry agreed “to finance the said Pruetts to enable them to make the 1928 crop on said land. To furnish them corn and cotton seed sufficient to plant and make the crop, and sufficient mules to make the crop, and to take, care of them financially for the year of 1928.” It was further agreed that Hutto should waive his landlord’s lien in favor of Perry, until he had collected for all he had furnished the Pruetts in the making of said crop-during the year 1928. Pruetts executed and deliv ered to Perry a mortgage odl their mnles, tools, wagons, harness and plow gear to secure him for advances made. Perry advanced on open account $561.61, and sold the Pruetts twelve mules valued at $1,280, retaining title to them until they were paid for. In order to get further •financial assistance, the Pruetts, on February 1, 1928, gave a mortgage to the Bank of England on all their crops to be raised that year, and a second mortgage on the property already mortgaged to Perry, which secured five supply notes of $550 each, running from March until July, inclusive, which said notes were indorsed by Perry, and was in performance of his contract to furnish the Pruetts financial assistance. In addition to this, Hutto made advancements to the Pruetts in the sum of $1,290.80. Pruetts also obtained supplies from appellant Harris, in the sum of $446.30, and secured appellant, therefor, by a third mortgage on his mules, tools, etc., and a second mortgage on his crops, which were already incumbered with the landlord’s lien for rents and supplies in favor of Hutto.
Appellant brought this action to subject the property covered by his mortgage to the satisfaction of his debt, claiming that Ms lien was superior to that of Perry and Hutto, and claiming that Perry and Hutto converted to their own use certain bales of cotton upon which appellant had a mortgage. He prayed for the appointment of a receiver to take charge of the property, and for a judgment against the Pruetts in the amount of Ms claim. A receiver was appointed, who took charge of the property of the Pruetts, converted it into cash, and filed his report with the court. Upon a trial of the case, the court found that the Pruetts were indebted to Perry in the sum of $1,280 for twelve mules, $561.61 for supplies advanced and $107.30 balance due to the Bank of England, which was paid by Perry and assigned to him by the bank, together with the lien of its mortgage, making a total of $1,948.91, wMch should be credited with the $1,115, the value of the mules returned to Perry, leaving a balance of $833.91, with interest; that the Pruetts were indebted to Hutto in the sum of $780 and to appellant Harris in the sum of $446.30; that Perry received nine bales of cotton from the Pruetts and their croppers and sold same for $781.46, out of which he paid Hutto $195.36, labor for picking $30.25, to the share-croppers their part, and retained himself $359.41; that the receiver sold $728.26 worth of cotton out o!f which Hutto is entitled to one-fourth as rent, or $182.06; that Perry is entitled to a first lien on the proceeds of the mules, tools, etc., sold by the receiver, by virtue of his mortgage, except one cow covered by appellant’s mortgage; and that Perry is entitled to a first lien on the crop, by reason of the deed of trust given the Bank of England, and which had been assigned to him; that Hutto is entitled to a prior lien for his rents and supplies which amount to $780; and that subject to all prior liens appellant is entitled to a lien on the property for $446.30. A decree was entered in accordance with the court’s findings.
This appeal challenges the correctness of this decree. It is said that Perry should not have paid to the sharecroppers their share of the proceeds of the sale of cotton delivered to him by the Pruetts. The evidence is undisputed that he did do this without knowing that appellant had furnished any supplies and claimed any lien on their share of the crops grown. Under these circumstances we do not think appellant is entitled to a judgment against Perry for the amount paid to share-croppers. The whole matter is quite involved, and, after a careful consideration of all the evidence, we are of the opinion that the court worked out the equities of the parties correctly, and that its findings are not against the preponderance of the evidence.
We find no error, and the decree is affirmed. | [
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J. Fred Jones, Justice.
This is a workmen’s compensation case and the question on appeal is whether there is any substantial evidence to sustain the Commission’s finding that the claimant-appellee’s heart attack and resulting disability grew out of, and occurred within the course of, his employment as a truck driver.
Carl Lee Alford was 58 years of age when on September 13, 1971, he suffered a severe heart attack while driving a truck-trailer rig on a return trip to Little Rock from Rossville, Tennessee, where he had delivered a truckload of corrugated paper boxes bound up in 500 pound bales. Mr. Alford had worked for the. appellant-employer, Hoerner Waldorf Corporation, for approximately 20 years, the first five years as a “slitter operator,” and the last 15 years as a truck driver. He had been hospitalized and treated for a hiatal hernia but that condition is of no importance in this case except as it relates to Mr. Alford’s complaints as hereinafter set out. The heart attack suffered by Mr. Alford on September 13 was diagnosed as a myocardial infarction and the correctness of that diagnosis is not questioned.
It was Mr. Alford’s contention before the Commission that the stress and strain of the work he performed as a truck driver brought about his heart attack on the day in question and aggravated his pre-existing coronary atherosclerosis to the point of a myocardial infarction and permanent disability. The appellant-employer and its compensation insurance carrier contended that Mr. Alford’s heart attack on September 13 was a natural result of his progressive degenerative heart disease and was unrelated to his occupation as a truck driver. The Commission found in favor of Alford and awarded compensation for a 70% permanent partial disability in addition to medical benefits that normally follow an award in favor of the claimant. The award of the Commission was affirmed by the circuit court so the employer and insurance carrier contend on this appeal that the “claimant failed to sustain his burden of proving by substantial evidence that there was any causal relationship between his driving the truck and his heart attack.”
Mr. Alford testified by deposition as well as in person before the Referee. He said that September 13 was on a Monday and he did not work on the 11th or 12th. He said he just sat around the house on Saturday and Sunday and did not recall having any chest pains on Saturday or Sunday. He said on Sunday afternoon he became drowsy and felt tired and worn-out. He said he started to call his employer to get someone else to work in his place on Monday but thought he might get to feeling better so he decided to go ahead and go to work Monday. He said that he got up about 1:30 or 2:00 o’clock on Monday morning and reported to work; that his trailer was already loaded and he attached the tractor to the trailer and left on his assigned trip for the delivery of merchandise to Rossville, Tennessee. He said he stopped in Palestine, Arkansas, for breakfast and delivered his cargo in Rossville at 7 a.m. He said that prior to stopping in Palestine, he had “a kind of heavy feeling” in his chest but thought it would pass and didn’t say anything to anyone about it. He said his cargo consisted of cardboard boxes bound up in bales weighing approximately 500 pounds; that when he arrived in Rossville, the bundles were unloaded with a forklift and he assisted the forklift operator in pulling over about 10 of the bundles so that the forklift could get under them. He said the heaviness he felt in his chest between Palestine and Rossville had lightened up on his return trip to Little Rock but that after he came through Memphis, Tennessee, and West Memphis, pain in his chest started getting worse and that between Palestine and Wheatley, Arkansas, about two hours after he left Rossville, he had to pull to the side of the highway and stop. He then testified as follows:
“Q. What kind of problem were you having at that time?
A. Well, I turned deathly sick and felt like I was going to vomit, and that’s the reason I jerked the tractor trailer over off the road as soon as I could, and it just felt like something just popped me in the chest right hard, and I slumped over my steering wheel, I suppose, so according to the time that I left Rossville and the time that these boys come along and all I was probably there maybe thirty or forty-five minutes. I don’t know just how long it was.”
Mr. Alford said two other truck drivers employed by the same company stopped and offered to bring him on in to Little Rock but he managed to bring his own truck to Little Rock. He said that after delivering his truck back to his place of employment, he went home and a day or so later was hospitalized under the treatment of Dr. William B. Bishop.
At the hearing before the Referee, Mr. Alford described his attack in more detail. He said that when he pulled his truck to the shoulder of the highway and stopped, he first laid over on his steering wheel and then got so sick he had to get out of his truck and vomit. He said that for a short time after he stopped he felt dizzy and did not know what he was doing. He said this condition soon cleared up but the pain in his chest never did cease or get any better. He described the attack as starting with sharp pain in his chest under his breast bone. He said it just kept getting worse and worse and he then testified as follows:
“When it did hit me it was a solid jolt. It just felt like someone stomped me in the chest... I had been hit in my chest with a bale of hay and it kind of felt like that. . . then I knew there was something wrong with me. I had never had that to happen to me before.
Q. Now you had never had this particular type of pain before?
A. I never had.
Q. Now had you ever had any pains in your stomach or in your chest area before?
A. Yes, sir.
Q. Were they anything like this?
A. Never was, no, sir.”
He said he had previously experienced pain in his stomach and chest on several occasions when he was in the hospital with a hiatal hernia. He said when his chest pains first started on the 13th, he thought perhaps it was the same thing, but it didn’t start hurting in his stomach as it usually did. He said the pain started in his chest on the 13th; that it was of a different nature than he had previously experienced and when it grew worse, he knew it was not from his stomach or hernia. He said after he left Rossville on his return trip to Little Rock, the pain in his chest really started hurting bad and then kept getting worse.
Mr. Robert Cearley, production manager for the appellant-employer, testified that Mr. Alford was an excellent employee. He said Alford worked about five years as a slitter operator in the plant before being assigned to driving a truck.
Both the truck drivers who came upon Mr. Alford while he was stopped at the side of the highway on his return to Little Rock, testified that he was deathly sick, complaining of pain and said that nothing like that had ever happened before.
Orville Jenson, another truck driver for the appellant-employer, testified that a driver of a truck-trailer rig is under constant pressure in keeping a lookout to prevent accidents and that there is a lot of heavy physical exertion involved in such work.
Dr. William B. Bishop did not testify but his letter-report dated January 26, 1972, directed to Mr. Alford’s attorney, was introduced into evidence without objection. Dr. Bishop stated that Mr. Alford had been under his treatment since September 16, 1971, and in his opinion Mr. Alford had advanced arteriosclerotic heart disease with angina on exertion. Dr. Bishop stated that Mr. Alford most likely had an intramural myocardial infarction which precipitated his hospitalization from September 16 through October 11, 1971. He said that in addition, Mr. Alford had symptoms of vertebral basilar artery insufficiency. It was his opinion that Mr. Alford would be unable to resume any occupation which would require any type of physical activity "including pulling, hauling, lifting, standing or walking over a protracted period of time.” Dr. Bishop concluded his report with a statement as follows:
"In that Mr. Alford’s initial symptoms occurred while he was driving a truck during the course of his occupation, I would have to presume that his pre-existing condition was aggravated by his driving the truck.”
At the request of the compensation insurance carrier, Mr. Alford was examined by Dr. Alfred Kahn, Jr. who reported the results of his examination and also testified by deposition. Dr. Kahn expressed the opinion that there was no causal connection between Mr. Alford’s work and his heart attack on September 13. The Commission, however, was entitled to consider and weigh all of Dr. Kahn’s testimony together with all the other evidence in arriving at its decision as to where the preponderance lies. Dr. Kahn’s examination was so thorough, and his testimony so important to the question before us, we feel justified in quoting his testimony at some length. Dr. Kahn’s report reads in part as follows:
“It is my opinion based on Mr. Alford’s history, physical examination, laboratory work performed elsewhere and performed here that Mr. Alford probably had an acute myocardial infarction while he was driving his truck as described in the present illness. * * * A myocardial infarction means death of heart muscle which in turn is the result of an inadequate blood flow through the coronary arteries. This inadequacy of blood flow through the coronary arteries is the result of a progressive degenerative disease seen in American males and known as coronary arteriosclerosis. This progressive degenerative disorder is accelerated by hypertensive disease, hyper-cholesterolemia, certain endocrine disorders as thyroid disease, sedentary living, hereditary traits, etc.; the reverse holds true. As a result of this patient’s coronary artery disease, he not alone had the myocardial infarction but the inadequacy of blood flow through the coronary vessels is still symptomatic and this patient is having what is known as angina pectoris. Angina pectoris is a syndrome of chest pain caused by temporary inadequacy of blood flow through the coronary vessels; this does not produce lasting damage to the heart, but could be looked on as a warning signal that there was a temporary inadequacy of blood flow. At this time I am unable to state that this patient has failure of his heart as a pump; he does not have any notable cardiac arrhythmia.
All of this brings up the question as to whether or not this patient’s work was related to his heart attack. The basic underlying cause of the patient’s heart attack or myocardial infarction as it is called is coronary atherosclerosis which as I have stated above is a progressive degenerative disease of the coronary vessels. A myocardial infarction may be precipitated in the presence of coronary arteriosclerosis if the patient undergoes excessive or unusual exertion. This unusual exertion has to have a good time relationship with the onset of the symptoms or there cannot be a cause and effect relationship. In the case of Mr. Alford, I do not believe that there is any causal relationship between this man’s work as a truck driver and his myocardial infarction.”
Dr. Kahn then reported that he made a careful search for any other disease suffered by Mr. Alford which might simulate coronary artery disease. He said that Mr. Alford does have a hiatal hernia and he was of the opinion that some of the pain described by Mr. Alford could have come from the hernia. He found that Mr. Alford did have hypertensive cardio-vascular disease; this could definitely accelerate coronary artery degeneration. He reported that Mr. Alford did not have an elevated blood cholesterol. Dr. Kahn then concluded his report as follows:
“In summary it is my belief that Mr. Alford has had a myocardial infarction. It was due to progressive arteriosclerosis. I think he is now probably suffering from angina pectoris. I think his principal problems are totally unrelated to his work.
Currently because of the cardiac disease, I think Mr. Alford is totally incapacitated for driving a truck. At the most, Mr. Alford might have some type of sedentary job where he sat or stood for short periods of time; he should not do any heavy lifting. He should not be exposed to any extremes of fatigue or climate.”
In Dr. Kahn’s deposition he testified on direct examination in part as follows:
“I think the thing that occurred to Mr. Alford was this; that he had a chronic degenerative disease of the blood vessels, which involved his heart,’ among other places. This disease, as I stated, is progressive, and eventually the blood supply to the heart muscle is inadequate. This inadequacy might take two forms. One, the inadequacy might precipitate what is known as coronary artery insufficiency, and this is a condition in which there is an inadequate flow of blood to the heart, and as a result there is temporary pain when the individual exercises or exerts. The other disorder is known as myocardial infarction, and it’s a more severe disorder, and this is characterized by a much greater impairment of blood supply, and in fact such that the individual has muscle death afterwards. It’s my opinion that Mr. Alford’s diagnosis is a myocardial infarction, and that it is a severe form of loss of blood supply through the coronary vessels. This used to be called coronary artery occlusion, but we know that these individuals who have myocardial infarction may have a partially patent blood vessel and the muscle still dies. My belief is that Mr. Alford suffered a myocardial infarction while he was driving his truck. I don’t think of this as being violent exertion, and I feel that the progression of the disease was the most important thing in producing his myocardial infarction.”
Dr. Kahn then testified that there had been studies made to determine the effect and relationship between exertion and myocardial infarction. He said these statistics showed that 95% of myocardial infarctions occurred while the individuals were either being quiet or at least relatively sedentary. He said that in only about 5% of the cases was there found to be a relationship between the infarction and exertion. Dr. Kahn testified that he agreed with these surveys and, before he would relate a myocardial infarction to exertion, it should be clearly shown that the exertion was quite severe for the particular individual and there would have to be a good time relationship between the exertion and the onset of the symptoms. He said that from the history given him by Mr. Alford, he felt that the exertion, or activity he was engaged in while driving his truck, was not sufficient to relate his activity to his myocardial infarction. Dr. Kahn then continued on direct examination as follows:
“Q. . . . had you known, the extent of his condition before he had this attack, let’s say the day before, what would have been your restriction on his activity?
A. Well, I think had I known he had had coronary artery disease sufficient to have caused a myocardial infarction, I would have told him not to take the trip. I would have taken him off this type of work.
Q. You would take him off this type of work, you mean truck driving?
A. Yes, I would. I would have put him on what I would have termed light work.
Q. And what are you putting him on now after he’s had the attack; what is the nature of that. . .
A. . . . well, the same, light work.
Q. For example, could he handle a job now or after he reaches his complete healing, as a shipping clerk, for example, where he is to receive and send out materials, provided he did not have to do any lifting and provided he was given an opportunity to sit down periodically in the course of his work?
A. I think he could, provided he weren’t exposed to extremes of temperature either. I think sitting and standing, no extremes of temperature, no extremes of exertion, probably a five pound limit on lifting weights and that not very repetitively.”
Dr. Kahn then testified that he thought Mr. Alford might be able to carry on the job of slitting machine operator if he was not required to lift anything more than the pieces of cardboard he would feed through a machine. Dr. Kahn said that following death of heart muscle which occurs in a myocardial infarction, the dead muscle tissue is replaced by scar tissue and it is thought that this scarring process continues for around six weeks before complete healing occurs. He said that in such healing process the small blood vessels tend to open up and carry the blood in place of the large vessel which had been occluded or almost occluded.
On cross-examination Dr. Kahn made his prognosis for Mr. Alford as not good. He said any person who has had a myocardial infarction is subject to more coronary disease and that in his opinion this condition is permanent. Dr. Kahn then outlined a regular course of treatment he would suggest under the direction of Mr. Alford’s attending physician, Dr. Bishop, who Dr. Kahn said “is an excellent man.” Dr. Kahn then testified on cross-examination as follows:
“Q. Is it true, Doctor, that physical or chemical trauma, or a sudden exertion on the body as a whole would require an increased amount of blood?
A. Yes, certainly exertion would. I don’t know that trauma would.
Q. And if the body requires an increased amount of blood, I suppose that requires the heart to work harder?
A. Yes.
Q. Where there’s exertion and a patient has this narrowing of the coronary artery due to this disease, might there be an inadequate supply of blood to the heart muscle that would cause damage?
A. With exertion?
Q. Yes.
A. Yes, it’s conceivable.
Q. And where you have this inadequate supply of blood to the heart muscle or the heart, may this result in pain?
A. Yes.
# * #
Q. I believe you indicated that a deficiency of blood supply to the heart or heart muscle could cause a myocardial infarction?
A. Yes, it could.
Q. Is there any similarity in symptoms from a hiatal hernia and a heart condition?
A. Yes, they are quite similar at times.
Q. Would they be confusing to a patient unless they knew exactly what was wrong with them?
A. Very.”
Dr. Kahn testified that whether or not emotional strain would cause damage to a diseased heart with insufficient blood supply is a very difficult question. He said that a sudden emotional shock could place additional strain on the heart but that whether or not emotional stress does lasting damage to a heart is a matter of debate. He said that he felt it could precipitate angina pectoris. He said that emotional stress could increase the heart beat and increase blood pressure.
“Q. And if the heart is already damaged it could aggravate the condition?
A. Yes, it could aggravate it, temporarily, anyway.”
Dr. Kahn testified that it would not be advisable for Mr. Alford to engage in any physical labor of any magnitude and that he should limit his activities in lifting weights to not over five pounds. He said that if Mr. Alford strained very vigorously, it could cause his heart to require more oxygen; that Mr. Alford should not attempt to move a crate weighing 500 pounds, and that he should be limited to light duty in the future. He then concluded his testimony on cross-examination as follows:
“Q. Mr. Pike asked you if Mr. Alford had come to see you for advice and counsel and treatment on the 13 th of September, 1971, before he started out on this trip, what restrictions you would have then placed on his job activities, and I believe you have indicated that you would have placed the same restrictions as you are now placing on him?
A. Yes, I would.”
The appellants argue that Dr. Kahn was very definite in his opinion, whereas Alford’s medical evidence amounts only to a bare conclusion expressed by his attending physician and is without supporting evidence. They argue that Dr. Bishop does not mention significant history in Mr. Alford’s case. As already pointed out, Dr. Bishop did not testify. His deposition was not taken nor was he called as a witness by either party. Mr. Alford, however, had been under the care and treatment of Dr. Bishop from the date of his attack and it would appear just as logical, if not more so, that Dr. Bishop did take into considerar tion a history given him by Mr. Alford as it would be that he did not.
The appellants cite many of our decisions in which we have reversed the Commission under the substantial evidence rule. Ocoma Foods v. Grogan, 253 Ark. 1111, 491 S.W. 2d 65, was a protruding disc case in which the condition developed over a considerable period of time and the claimant’s employment consisted of sitting down and lifting nothing heavier than chicken parts.
In Southland Corp. v. Hester, 253 Ark. 959, 490 S.W. 2d 132, cited by the appellants, we reversed a Commission award in favor of the widow of a man who died of a gunshot wound. The deceased employee was found slumped at his desk with his own .22 rifle (he apparently had brought from home) propped with its butt against an electrical outlet on the floor and its muzzle against his shirt near his heart. The cause of death was a bullet wound through the heart, and there was powder burn on the shirt and if the death was accidental, there was no substantial evidence it grew out of the employment.
Another case cited by the appellants in which we reversed the Commission is the case of International Paper Co. v. Langley, 251 Ark. 859, 475 S.W. 2d 686. The primary distinction in that case was that . Mr. Langley was simply handling empty paper bags seven feet long and two feet wide. Langley had just returned from lunch and picked up one of the paper bags when he experienced one of his many heart attacks. The appellants also cite numerous cases in which we have sustained the Commission under the substantial evidence rule, but each case turns on its own peculiar facts and we only search the record to determine if there is any substantial evidence that will Support the decision reached by the Commission.
Heart cases are within the most difficult area of workmen’s compensation law, primarily because it is common knowledge that disabling heart attacks do occur in many instances without apparent reason as to time and activity. It has become a matter of common knowledge that excessive exertion or strain on a weak or diseased heart is likely to result in a disabling or fatal heart attack and the amount of exertion required may vary with the individual. Bettendorf v. Kelly, 229 Ark. 672, 317 S.W. 2d 708. It is unfortunate, therefore, that the precise and exact cause and extent of a disabling heart condition are difficult to determine short of heroic exploration or autopsy.
Ever since our decision in Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S.W. 2d 436, there has been no requirement that a heart attack, to be compensa-ble, must be caused, or brought on, by some unusual exertion rather than by the employee’s regular work. Rebsamen West v. Bailey, 239 Ark. 1100, 396 S.W. 2d 822. See also Reynolds Metals Co. v. Cash, 239 Ark. 489, 390 S.W. 2d 100; W. Shanhouse & Sons, Inc. v. Simms, 224 Ark. 86, 272 S.W. 2d 68.
In Reynolds Metals Co. v. Cain, 243 Ark. 483, 420 S.W. 2d 872, we said:
“It is appellant’s contention that appellee’s attack was due to pre-existing arteriosclerotic disease, and his work had nothing to do with precipitating the attack. It is true that Cain was suffering from arteriosclerosis, and there is no dispute in the medical testimony on that point. The test, however, is whether the work that appellee was doing aggravated the pre-existing condition to the extent that it (the work) was a factor in bringing on the attack, Reynolds Metals Company v. Robbins, 231 Ark. 158, 328 S.W. 2d 489. Numerous cases hold in like manner.”
In the case of Asphalt Materials Co. v. Coleman, 243 Ark. 646, 420 S.W. 2d 921, the question was whether or not there was any substantial evidence of a causal connection between the claimant’s work and a heart attack, and in that case we said:
“In resolving the issue before us, we are mindful of those cardinal principles so well established as to need no citation of authority: (1) the compensation act is to be construed liberally in favor of the workman; (2) the burden is on the claimant to show causal connection between his heart attack and his employment; and (3) we give the evidence its strongest probative force in favor of the commission’s findings because those conclusions carry the weight of a jury verdict.”
In Latimer v. Sevier County Farmer’s Coop., Inc., 233 Ark. 762, 346 S.W. 2d 673, we said:
“In U.S.F. & G. Co. v. Dorman, 232 Ark. 749, 317 S.W. 2d 708, this court quoted from Bettendorf v. Kelly, 229 Ark. 672, 317 S.W. 2d 708, as follows: ‘. . . an accidental injury arises out of the employment when the required exertion producing the injury is too great for the person undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or a contributing cause of the injury. In short, an injury is accidental when either the cause or result is unexpected or accidental, although the work being done is usual or ordinary.’ ”
And in Hall v. Pittman Construction Co., 235 Ark. 104, 357 S.W. 2d 263, we said:
“Under the substantial evidence rule that prevails in a case of this kind the appellant shoulders a heavy burden in seeking a reversal of the commission’s decision upon an issue of fart. In order to succeed the appellant must show that the proof is so nearly undisputed that fair-minded men could not reach the conclusion arrived at by the commission. After studying the record we are unable to say that the appellant is entitled to a reversal; that is, that there is no substantial evidence to support the commission’s findings.”
There is no question from the medical evidence in this case, that Mr. Alford had an arteriosclerotic heart condition for at least some period of time prior to his attack on September 13, 1971. Prior to that date, however, there is no evidence that his condition interfered with his regular duties as a truck driver and there is no evidence that he even knew he had the condition. There is little direct evidence as to the amount of stress and physical exertion involved in driving a truck-tractor trailer such as Mr. Alford was driving. It is clear from Dr. Kahn’s testimony that the basic underlying cause of Mr. Alford’s myocardial infarction was the inadequacy of blood supply to the heart muscles through arteries which were occluded, or nearly so, by nonoccupational arteriosclerosis, and this principal problem was unrelated to Mr. Alford’s work. It is reasonable to assume that if Mr. Alford had been free of this basic underlying principal problem, his acute infarction would never have occurred and he would still be able to follow his occupation as a truck driver or engage in any other physical activity on an unlimited basis.
Turning now from the “basic underlying cause” and Mr. Alford’s “principal problem” Dr. Kahn explains that a slight or temporary inadequacy of blood supply to the heart may result in warning chest pains known as angina pectoris when the individual exercises or exerts. He explains that a much greater inadequacy of blood supply may result in a myocardial infarction with permanent damage and he said that is what Mr. Alford had. “Inadequacy” is a relative term and Dr. Kahn readily agrees to the common sense proposition that physical exercise and exertion places a greater demand on the heart for its blood supply and while Dr. Kahn expressed the opinion that Mr. Alford’s truck driving did not precipitate his heart attack or aggravate his heart condition, he limited Alford’s activities to lifting not over five pounds in weight and said that had he had occasion to examine Mr. Alford prior to September 13, 1971, he would have placed him on lighter work than that of truck driving, and would have limited his activities to the same extent he did following the heart attack on September 13.
We are of the opinion that the Commission was justified in interpreting Dr. Bishop’s letter-report as dif fering in opinion with Dr. Kahn as to whether or not the truck driving aggravated Mr. Alford’s heart condition. Dr. Bishop’s qualifications are not questioned in this case and he placed practically the same limitations on Mr. Alford’s activities as did Dr. Kahn. Apparently both doctors would have recommended lighter work for Mr. Alford than that of truck driving had they had an opportunity to do so prior to September 13.
There is no evidence in the record as to how much either of the doctors knew about the exertion necessary in driving a truck-tractor rig through cities and on the highway, so it is reasonable to assume that Dr. Bishop knew as much about truck driving as did Dr. Kahn. Certainly Dr. Kahn, and apparently Dr. Bishop, would have recommended against attempting to drive the truck on September 13 had they had an opportunity to examine Mr. Alford before he made the trip. Dr. Bishop did not merely say that he presumed the truck driving aggravated Mr. Alford’s condition, he said he would have to presume that the pre-existing condition was aggravated by driving the truck. Perhaps Dr. Bishop recognized, as Dr. Kahn apparently did, that Mr. Alford was in immediate danger of a myocardial infarction if and when additional demand was made on his diseased arteries and they only differ in the amount of exertion that would create such demand.
It is true that Dr. Bishop did not go into detail as to how he arrived at his opinion as did Dr. Kahn, but he was not asked to do so. Dr. Kahn does not say whether a myocardial infarction occurs over an extended period of time or suddenly. He does say that in his opinion Mr. Alford suffered an acute myocardial infarction. He explains that a myocardial infarction occurs for lack of blood supply through diseased arteries and the substance of his testimony is to the effect that anything, including exercise, which would increase the demand on the heart and arteries for blood supply, would likely result in insufficient blood oxygen to the heart muscles and result in a myocardial infarction.
From the overall evidence in this case, under the above rules we have announced in previous cases, we are of the opinion that there is substantial evidence to support the Commission’s finding in this case, and that the judgment of the trial court affirming the Commission must be affirmed.
Judgment affirmed.
Fogleman, J., concurs.
The duties of a slitter operator were described as feeding paper cardboard through a machine which trimmed it to proper size for making cardboard boxes.
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Frank Holt, Justice.
The appellant was charged with second degree murder in the shooting death of Wiley Johnson, Jr. A jury convicted him of manslaughter [Ark. Stat. Ann. § 41-1504 (Repl. 1977)] and fixed his punishment at ten years imprisonment. He was incarcerated and later released on bail pending this appeal. In a pretrial confession the appellant admitted shooting Johnson but contended that he had done so in self-defense and had only intended to injure Johnson sufficiently to stop Johnson’s alleged assault.
Appellant’s present counsel, who did not represent him at trial, acknowledges, after reviewing the record, that the only tenable ground for appeal is that the appellant did not have effective assistance of trial counsel in violation of his state and federal constitutional rights (Art. 2, § 10, Const, of Ark. [1874] and Sixth Amendment, U. S. Const.). He also argues we should overrule Hilliard v. State, 259 Ark. 81, 531 S.W.2d 643 (1976), which holds a defendant may not prosecute a direct appeal on the issue of ineffective assistance of counsel absent an objection in the trial court. Here, appellant’s argument of ineffective assistance of counsel was not presented to the trial court. We affirm.
In Hilliard, where the issue of ineffective assistance of counsel, as here, was not raised in the trial court, we pointed out that the proper procedure for assessing the quality of legal representation is either through a motion for a new trial or a motion for postconviction relief in the trial court, because an evidentiary hearing there on “many facets” of the case better equips us to review the sufficiency of representation at trial. This case perfectly illustrates the wisdom of our rule. Appellant argues that his retained trial counsel, by allowing and advising him to confess, supplied the state with inculpatory proof that the state very well might not have been able to otherwise obtain. Further, his counsel’s cross-examination of witnesses was totally irrelevant, resulting in the net effect of strengthening the state’s case. Also, his counsel’s failure to object to improper and irrelevant inquiries on cross-examination of defense witnesses by the state portrayed the appellant as an evil man. Appellant argues that the record here establishes by clear and convincing evidence that appellant’s trial counsel was so grossly inadequate that it resulted in a deprivation of his constitutional rights of effective assistance of counsel and, therefore, it is unnecessary for an evidentiary hearing in the trial court to determine the competency and efficiency of trial counsel.
An evidentiary hearing and finding as to the competency of appellant’s counsel by the trial court would, as Hilliard holds, “better equip us on review to examine in detail the sufficiency of the representation.” We decline to overrule or modify Hilliard. We are not alone in requiring such claims of ineffective assistance of counsel to be presented first to the trial court. See U.S. v. Mims, 440 F.2d 643 (8th Cir. 1971); U.S. v. Stephens, 609 F.2d 230 (5th Cir. 1980); U.S. v. Rodriguez, 582 F.2d 1015 (5th Cir. 1978); Grover v. State, 41 Md. App. 705, 398 A.2d 528 (1979); and Foster v. Commonwealth, 507 S.W.2d 443 (Ky. 1964).
As alternative relief, appellant asks, in the event his conviction is affirmed, that we now grant permission for him to proceed in the circuit court for postconviction relief pursuant to A.R.Cr.P., Rule 37, without being required to file a formal petition here for postconviction relief. Rule 37.1 requires that a motion for postconviction relief must be verified. We recognized this requirement in Carey v. State, 268 Ark. 332, 596 S.W.2d 688 (1980), where we said: “... Rule 37.1 requires that motions for postconviction relief be verified and be filed with the court, a requirement of substantive importance to prevent perjury.” Rule 37.2 provides: “If the conviction in the original case was appealed to the Supreme Court, then no proceedings under this rule shall be entertained by the circuit court without prior permission of the Supreme Court.” We adhere to the requirement that a formal verified petition for postconviction relief be filed in this court, following our affirmance, for permission to proceed in the trial court.
Affirmed.
Purtle, J., dissents. | [
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Humphreys, J.
This is an appeal from a judgment of $100 for damage to appellee’s automobile and $10,000 for injury to appellee resulting from, a collision between his automobile and one of appellant’s street cars at the intersection of Broadway and Ninth Streets in the city of Little Rock, Arkansas.
Appellee alleged that the damage to his automobile and the injury to himself were caused by the failure of appellant’s motorman to stop the street car, as required by law, before entering Broadway from the east, and to keep a lookout or sound an alarm., or to stop the street car when the perilous position of appellee’s automobile was observable. Appellee also alleged that he was permanently injured about the back, chest, lungs, and other-parts of the body, rendered permanently incapable of any sort of gainful labor, and caused to suffer great pain of body and anguish of mind to his damage in the sum of $25,000. Also alleged damage to his automobile in the sum of $200.
The allegation of negligence and the extent of the injuries were controverted, and the affirmative defense of contributory negligence was interposed by appellant.
The collision occurred at 6:30 o’clock on the morning of November 27, 1928, at which time it was raining and dark. The headlight of the street car as well as the lights in the car were on and in good condition. The headlights of the automobile were on and in good condition. Appellee was traveling south on Broadway, being driven by his son, who was eighteen years of age, with a load of produce which he was taking from, his farm in Faulkner County to sell at the curb market in Little Bock. Appellant’s motorman was traveling west on said street towards the outskirts of the city, without passengers. At the intersection of the east side of Broadway and the north side of Ninth Street a brick church with high steps is located which obstructs the view to some extent in approaching the street crossing from the east or north. There were only three eye-witnesses to the collision, appellee, his son, and the motorman.
Appellee testified that as they entered Ninth Street slowly they were looking both ways, but could not see the street car approaching from the east on said street until it was near the stop block and until within about three or four feet of the street car track on account of the brick church building; that his automobile had good brakes; that the street car was approaching- at a speed of about twenty or twenty-five miles an hour, and, failing to heed the stop block, as they expected it to do, ran into them just as their front wheels crossed the first rail and knocked their car over against the west curb of Broadway ; that, had the motorman stopped at the stop signal, they would have had ample time to cross the track before the street car could start again and reach them; that they did not run into the street car, but that the street car ran into his car without slowing down after it passed the stop block; that the impact threw appellee out of the car onto the street, resulting in painful injuries to his body and particularly to his chest, shoulders, and back that produced pneumonia and confinement to his bed for one hundred and five days and permanent injuries which will prevent him from earning a livelihood; that the outer tissue of his lungs was punctured by a broken rib, causing him to expectorate much blood and matter for a long time; that the injury in the chest produced a bone growth that resulted in a stiffness in the neck and shoulders and a nervous affection in his lower limbs which produced an unsteadiness in his step; that at the time of the injury he was forty-two years old, had an expectancy of twenty-five years, and was earning on an average of $3 per day; that the left front wheel was torn down, the tire and inner tube torn up, the radiator torn up, the steering* wheel torn up, the motor knocked sidewise out of the car, a big hole knocked in the front tire, the carburetor, two spark plugs, and fan wheel torn off, the left fender torn off, the left end of the bumper torn off, and the bumper bent back toward the right or west and the frame of the car bent. He also testified, over the objection and exception of appellant, that the total damage to his automobile was about $200, and that his son was a careful driver.
There was no material difference between the testimony of appellee and his son, Velous Cummins, the driver of the car, who testified that as the street car approached there was no bell or gong sounded, and that, when he first saw same, it was within fifteen or twenty feet of the stop block, and that he was about six feet from the street railway track; that he could and would have stopped within that distance, had he known or believed the street car motorman would not have stopped at the stop block, but, when he discovered that he had' ignored the stop block and failed to check his speed of twenty or twenty-five miles an hour, he was practically upon the track, and could not stop before the street car struck him; that he continued on his way after first seeing the street car because he relied upon the motorman to obey the traffic law at the stop block before entering Broadway. He was recalled in the afternoon, and denied that in testifying during the morning he had said he could not see the street car until it got to or near the stop block, but, as a matter of fact, he did see it about twenty feet east of the stop block.
E. P. Chastain, the motorman, testified that he was running the street car at a speed of ten or twelve miles an hour as he approached Broadway, and that he stopped the car at the stop block on the east side of Broadway, and, after looking north and south for autos or pedestrians, and seeing neither, he proceeded at an ordinary speed west, and was almost across Broadway ydien he observed appellee’s automobile traveling south at a rate of ten or twelve miles an hour; that it ran head end into the street car, striking it with full force; that he immediately applied his emergency brakes, and, as soon as the car stopped, he went back and assisted in pushing the automobile away from the car and around to the west; that appellee, his wife, and son were sitting in the front seat, and a little girl in the back seat; that they explained to him that the collision was due to the worn condition of the brakes on appellee’s automobile.
Appellee’s wife and son denied making the statement, and said they charged the motorman with failing to stop at the stop block and that he walked away without denying the charge.
Dr. A. G-. McGill testified, over the objection and exception of appellant, that the injuries to appellee’s back resulted in the disturbance of the reflexes in the lower limbs causing an unsteadiness when on his feet, and also resulted in a disturbance in his bladder and rectum.
Appellant first'contends for a reversal of the judgment, upon the alleged ground that there is such a variance between the testimony of Velous Cummins given in the morning and that given in the afternoon that he is wholly discredited and his testimony worthless, hence the court should have disregarded it and instructed a verdict for appellant upon the theory that the motorman’s evidence relative to the collision was true and undisputed. We have read the testimony of Velous Cummins very carefully and find no material conflict in it, but, even if there were, appellee adhered to his own statement throughout the trial, and his testimony contradicts that of the motorman.
It is also insisted that the testimony introduced by appellee relative to the collision is contrary to the physical facts that the spring under the middle of the car was displaced and found on the ground after the collision. There is some testimony tending to show that the only way the spring could have been displaced was by a heavy jar in the center of the car opposite the spring; that, had the front end of the car been raised by a collision, the effect would have been to cause the body of the car to press down the tighter on the spring and hold it in place instead of disconnecting and loosening same so as to cause it to fall out on the ground. The testimony of the motorman is out of harmony with the physical facts that no indentation was found upon the side of the street car where the automobile is supposed to have struck it, and that the lights on the auto were not injured, but that the bumper thereon was knocked loose on the left side and bent around toward the right, and that the left front wheel was knocked down and the right one uninjured except for a hole in the tire. In fact, the injury to the automobile from the physical appearances indicated that it was struck on the left front end, which could not have been true had the automobile run squarely into the side of the street car. Again, there is nothing in the testimony of appellant to indicate that the front end of the car was lifted up in the collision so as to press the center of the car down on the spring and hold it in place. It was not conclusively shown that a jar at the front end of the car could not have displaced the spring and caused it to fall out. The testimony is in conflict as to the point of contact in the collision as well as the cause thereof, so the court correctly refused to direct a verdict for appellant.
The appellant next contends for a reversal of the judgment because the court allowed Dr. A. G. McGill to testify to nerve disturbances in the lower limbs and in the bladder and rectum resulting from the injuries to appellee’s back, upon the ground that nerve disturbances were not specifically alleged in the complaint. The complaint alleged injuries to the back. Dr. McGill testified that the nerve disturbances originated in the spinal injury, the injury to the fourth lumbar vertebrae. The rule is that the symptomatic conditions resulting from an alleged injury are relevant and competent. Arkansas Power & Light Co. v. Toliver, 181 Ark. 770, 27 S. W. (2d) 985, decided by this court on March 12, 1930.
Under this rule the nerve conditions testified to by Dr. McGill were admissible, although not specifically alleged in the complaint.
Appellant next contends for a reversal of the judgment because appellee was permitted to introduce a pamphlet of the traffic ordinances of the city of Little Rock, certified to by the city clerk, making Broadway from Markham to Twenty-fourth Street a boulevard, and requiring street car drivers to bring their street cars to a full stop when appoaching boulevards. The complaint alleged, and the answer admitted, that the law required appellant to stop its street cars on the east line of Broadway, so no prejudice resulted to appellant, even though the ordinances were not properly proved. Under these circumstances, it is unnecessary to decide whether the ordinances were properly proved or not.
Appellant next contends for a reversal of the judgment because appellee was allowed to state that his son was a careful driver. Where negligence is charged, the care and caution of the one charged therewith is relevant as a circumstance tending* to disprove negligence. Likewise, it would be admissible to show that a person charged with negligence was a reckless driver as a circumstance tending to prove the fact.
Appellant next contends for a reversal of the judgment because appellee testified that his automobile was damaged to the extent of $200. Before he testified to this estimate of his damages, he described the injuries to the automobile in detail, and, after doing so, based his opinion as to the amount of the damage upon his observation of the car. A man of ordinary intelligence could form an opinion of the amount of damage done to' a car by inspecting same. His opinion in this regard is not such an opinion as must be reached by one from expert knowledge before admissible as evidence.
Appellant next contends for a reversal of the judgment because the verdict and judgment are excessive. The suffering resulting* from the injury was acute and intense, and the injuries are permanent. They destroyed his earning* capacity entirely. Considering his expectancy, the intense suffering he endured, and his earning capacity, we do not think the verdict is excessive.
Appellant next contends for a reversal of the judgment because the court refused to give its requested instruction No. 7. The instruction is as follows:
“You are instructed that street cars, from the necessities of the case, must have and do have the right-of-way on their tracks, where they alone can travel, and this right-of-way is superior to that of ordinary vehicles and travelers. This paramount or better right to the use of their tracks does not give them the right to exclude travelers, and these may move along or across the tracks at any time and place where such traveling does not interfere with the progress of the street cars. Where there is conflict between a street car and an automobile, the automobile must yield the right-of-way. This requirement of the law is to subserve the public convenience and accommodation and it is your duty to bear these reciprocal rights in mind in determining the care required of the respective parties at the crossing.”
It is only when the tracks of the street railway company are in actual use that the street ear company has a paramount and preferential right of way over the tracks. The instruction ignores the duty of appellant to have stopped his car at the stop block on the east side of Broadway. Travelers passing up and down Broadway had a right to rely upon a compliance of the traffic law by the street car company and to pass up and down Broadway during the stop. The street railway had no paramount or preferential right to the use of the track when violating the traffic law, so the instruction is erroneous, in that it states that an automobile must yield the right of way where there is a conflict between it and the street car absolutely and in any event. It can only be true when the street railway is using the particular portion of its track in question lawfully and not when it is violating the law in the use thereof.
Appellant next contends for a reversal of the judgment because the court refused to give its requested instruction No. 8, which is as follows: “If the driver of the plaintiff’s automobile approaching a street car crossing in the exercise of ordinary care could see that a collision with an approaching car was inevitable, or highly probable, unless the motorman stopped the car, then it was the duty of the driver to stop and let the street car pass before endeavoring to cross, so as not to delay or impede its passage.”
This instruction was also erroneous because it ignored the fact that appellee was traveling a boulevard or preferred street under the traffic ordinance which required appellant to stop its street car before entering Broadway. Appellee’s duty to look and listen for approaching street cars was correctly submitted to the jury in other instructions.
Appellant next contends for a reversal of the judgment because the court refused to give its requested instruction No. 22, which is as follows: “The court instructs you that if you find from the evidence that the infirmity of the plaintiff was due to -one of two causes, one of which could involve negligence on the part of the defendant, the other only an accident for which the defendant is not liable, then, under the law, it would be your duty to adopt a theory which would relieve the defendant from any charge of negligence, and therefore it would be your duty under such circumstances to return a verdict for the defendant.”
This instruction was sufficiently covered by instruction No. 10 given by the court and other instructions of like tenor and effect.
Appellant next contends for a reversal of the judgment because the court refused to give its requested instruction No. B, which contained section 43 of the Acts of the General Assembly of Arkansas of 1927 (page 753), specifying’ the kind of brakes with which motor vehicles operated upon highways shall be equipped, and telling the jury that, if appellee’s automobile was not thus equipped, and his failure to so equip it contributed to bring about the collision that caused the injury, appellee would not be entitled to recover.
Appellant requested, and the court gave, instruction No. A upon the subject of contributory negligence which told the jury appellee could not recover if his car was being’ operated without proper brakes such as would enable him to control the car, and that, if the collision was caused entirely or in part by such negligence, appellee could not recover. Instruction A was a correct instruction on contributory negligence, and was responsive-to the evidence in the case. The evidence pro, and eon upon whether the automobile had brakes by which it could be controlled was general in its nature. The evidence of appellee was to the effect that it had such brakes and. that of appellant to the effect that the brakes were worn out. No attempt was made to show that the automobile was not equipped with the kind of brakes required by the act referred to, and so- its requested instruction. No. B was abstract in part, and should not have been given. It should not have been modified and given because the parts thereof not abstracted were fully covered by appellant’s instruction No. A, which was given by the court.
Appellant next contends for a reversal of the judgment because the court erred in refusing to give its requested instruction No. 14, which is as follows: “You are instructed that the motorman in the operation of defendant’s ear was not required to anticipate negligence, if any, on the part of the driver, in the operation of the plaintiff’s automobile. If you find from the evidence that the defendant’s street car reached and entered the intersection before the automobile of the plaintiff, the motorman had a right to assume that the driver of plaintiff’s automobile would allow him to cross the intersection in safety, and that the driver would not afterwards enter the'intersection with his car beyond control, so as to bring about a collision.”
This instruction is inherently erroneous because it assumes the motorman entered Broadway in a lawful manner and at. a reasonable rate of speed. ’ It wholly ignored the testimony tending to show that he himself ran over the stop signal and entered Broadway at a speed of twenty or twenty-five miles an hour. If, as a matter of fact, the motorman ran over the signal and entered Broadway at a reckless and dangerous rate of speed, he had no right to assume that pedestrians or automobiles could or would yield him right-of-way. Under such circumstances, they likely would not have had time to do so.
Appellant’s next contention for a reversal of the judgment is that the court erred in refusing to give its requested instruction No. 5, which is as follows: “Failure of the motorman to sound his gong, if you find from the evidence that he did fail to sound it, is not negligence of itself so as to make the defendant company liable, if you further find from the evidence that the driver of plaintiff’s car had knowledge of the approach of the car before reaching the street car tracks.”
Appellee did not request and the court did not instruct the jury that the failure of the motorman to sound the gong as the street car approached Broadway would constitute negligence on his part, so appellant is in error in arguing that the jury was left to infer that, if the gong was not rung, appellee was entitled to recover. Even though such an inference might be drawn from the evidence, the instruction, in the form requested, was erroneous.
To have observed the street car approaching before it reached Broadway would not have been notice to appellee that the motorman would disregard the stop block. The instruction wholly ignored the duty imposed upon the motorman to stop the street car at the stop block as he entered Broadway. For this reason it was proper to refuse to give it.
No' error appearing, the judgment is affirmed.
The 'Chief Justice and Mehaffy, McHaney and Butler, JJ.., concur.
Smith and Kirby, JJ., dissent. | [
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Per Curiam.
The appellant Brian K. Howard was convicted of theft by receiving and burglary. He was sentenced as an habitual offender to serve twenty years imprisonment. A “no merit” appeal was filed with the Arkansas Court of Appeals where Howard’s convictions were affirmed in an opinion not designated for publication. Howard v. State, CACR 91-265 (April 29, 1992). Howard then filed a petition for post-conviction relief in the trial court. It was denied, and Howard brings this appeal.
Howard’s petition to the trial court alleged that his counsel was ineffective in numerous ways. His chief allegation was that his counsel had a conflict of interest since she represented all three co-defendants. The state responded to the petition by stating that the petition was longer than permitted by the rule and that the allegation was ruled upon by the Arkansas Court of Appeals in its opinion. The trial court held that “the responses” raised the issue of jurisdiction and concluded that it did not have jurisdiction. Although the allegation of conflict of interest was mentioned in its opinion, the issue was not properly before the Court of Appeals because it had not been raised at trial. The case is remanded so that the trial court can consider Howard’s Rule 37 petition on its merits. The record of the hearing should be filed in this court together with the court’s findings of fact and conclusions of law.
Reversed and remanded. | [
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. Hart, O. J.
This is an appeal by the Arkansas State Highway Commission from a judgment of the circuit court awarding a writ of mandamus to twenty-six different claimants to compel it to issue vouchers to them in payment of their respective claims against various road improvement districts in the State of Arkansas, pursuant to the provisions of act 153 passed by the Legislature of 1929 in aid of road districts in this State. Acts of 1929, vol. I, p. 785.
It is first contended that the act of 1929 just referred to in aid of road1 districts in this State is in conflict with article 5, § 23, of the Constitution which provides that no law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only. It is contended that the act violates this section of the Constitution by amending or extending the provisions of act 18 enacted ¡by the Legislature of 1929 for the purpose of making appropriations for the operation of the Highway Department and of act 11 of the Acts of 1927 in which the State’s highway policy was declared and provision made for the payment of certain outstanding road improvement distirct bonds. See Acts of 1929, vol. I, p. 24, and Acts of 1927, p. 17.
The grounds upon which the constitutionality of the act is here attacked are the same as those which were considered and determined by the court in the case of Grable v. Blackwood, 180 Ark. 311, 22 S. W. (2d) 41. We see no good reason for reviewing the conclusions there reached and treat the matter as settled by that case. In addition, it may be said that textwriters and courts generally say that the constitutional requirement does not apply to supplemental acts not in any way modifying or altering the original act, nor to those merely adding new sections to an existing act. Cooley on Constitutional Limitations, (8th ed.) vol. I, pp. 316-317; 26 Am. & Eng. Enc. of Law (2d ed.) p. 707; 36 Cyc., p. 1061; and 25 Ii. C. L., § 119, pp. 874-875.
The constitutional provision applies where the act is strictly amendatory or revisionary in its character. Its prohibition was intended to prevent the amendment or revision of an act by additions or other alterations which, without the presence of the original act, are confusing or unintelligible.
Act 153 of the Acts of 1929 under consideration is complete in itself, intelligible and original in form. It does not in any sense purport to add any additional section to the statutes referred to in it or to engraft into their provisions anything which would affect them. Their provisions remain intact, and are not in any wise affected by the act under consideration. The purposes of the present act might have been accomplished by an act strictly in form amendatory by incorporating the whole of the original acts into the present one, but such course would have been cumbersome and not more intelligible than the present act.
A full, clear and comprehensive statement of the principles of laiw relating to such provisions of a constitution was made in People v. Banks, 67 N. Y. 568. In an elaborate opinion prepared by Mr. Justice Allen, it was said:
‘ ‘ It is not necessary, in order to avoid a conflict with this article of the 'Constituton, to re-enact general laws whenever it is necessary to resort to them to carry into effect a special statute. 'Such cases are not within the letter or spirit of the Constitution, or the mischief intended to be remedied. By such a reference the general statute is not incorporated into or made a part of the special statute. The right is given, the duty declared, or burden imposed by the special statute, but the enforcement of the right or duty and the final imposition of the burden are directed to be in the form and by the procedure given by the other and general laws of the State. Eeference is made to such laws, not to affect or qualify the substance of the legislation or vary the terms of the act, but merely for the formal execution of the law. The evil in view in adopting this provision of the Constitution was the incorporating into acts of the Legislature by reference to other statutes of clauses and provisions of which the legislators might be ignorant, and by which, affecting public or private interests in a manner and to an extent not disclosed upon the face of the act, a bill might become a law which would not receive the sanction of the Legislature if fully understood.”
“There is no evil of this or of any nature to be apprehended by the mere reference to other acts and statutes for the forms of process and procedure, for giving effect to a statute otherwise perfect and complete. It would be a serious evil to compel the engrafting upon and embodying in every act of the Legislature all the forms and the details of practice which may be necessarily resorted to to carry any one statute into effect, when the same proceedings are provided for by the general statutes off the State, and are applicable to hundreds of other eases, and with which the Legislators may be supposed to be reasonably familiar.”
In concluding this branch of the case, it may be said that the act of 1929 under consideration in aid of road districts provides for the payment of certain outstanding debts other than road bonds out of the appropriation which had already been made by the same Legislature for the operation of the Highway Department in all its departments, including- the retirement of road district bonds and the interest assumed by the State pursuant to the provisions of the act of the Legislature of 1927 in which the State’s highway policy was declared. In the G-rable case, we held that the provision of the act under consideration was constitutional, and was a valid appropriation act, and was not an appropriation by reference, which is prohibited by the section of the constitution above referred to. We cited former decisions of this court to sustain our holding in the construction of acts containing similar provisions with regard to appropriations, and we now adhere to the views there expressed.
It is next contended that the claims against the various highway improvement districts involved in this ac tion cannot be paid by tbe Arkansas State Highway Commission without destroying the parity system provided for by what is commonly called the Martineau Road Law and the allotment system made thereunder by the Arkansas State Highway Commission. In the consideration of this question, we deem it necessary to set out and refer to a part of the provisions of all three of the acts above mentioned.
In § 1 of the Martineau Road Larw, it was declared to be the policy of the State to take over the construction, repair, maintenance, and control of all the public roads in the State comprising'the State highway as defined herein. Section 3 provides that the commission shall, as soon as possible, ascertain the amount of valid outstanding' road bonds issued by the road improvement districts in this State, and for the payment of the same by the commission by the Auditor of the State issuing vouchers for the amounts due on the State highway fund. Section 4 provides for the construction and completion of the State highways and reads as follows:
‘ ‘ It shall be the duty of the commission to construct the roads in the State highway system which are not now constructed, the work of construction to be pushed as rapidly as funds are available for that purpose. The commission shall begin the work of construction in those counties in which the roads embraced in the State high- - way system have not been constructed by improvement districts, or in which only a small portion of such roads have been so constructed, and shall continue construction work in such counties until the completed roads in each county in the State have been brought to a parity, after which ' construction work shall be distributed throughout the counties so as to maintain the parity as far as practical. ’ ’
Section 5 provides for new road. construction, and 110 provides for appropriations to pay all these matters. Acts of 1927, p. 17.
The Legislature of 1929 first passed act 18 for the purpose of making appropriations for the operation of the highway department and for aid to county highway funds. Acts of 1929, Yol. 1, p. 26.
'Subsequently, the same Legislature passed an act in aid of the road districts in the State. Acts of 1929, Yol. 1, p. 785. The preamble and § 1 of the act read as follows:
“Whereas, it has been determined that there is an extensive amount of indebtedness against sundry road improvement districts in the 'State of Arkansas, and
“Whereas, no provision was made for the payment of these road improvement district obligations in § 3 of act No. 11 of the Acts of the Forty-sixth General Assembly, approved February 4, 1927, therefore,
“Be it enacted by the General Assembly of the State of Arkansas:
“Section 1. That the Highway Commission shall as soon as possible ascertain the amount of any valid outstanding indebtedness incurred prior to January 1,1927, against any road district in the State of Arkansas organized prior to the passage of act No. 11 of the Acts of the General Assembly of the State of Arkansas for the year 1927 which was approved February 4, 1927, and shall draw vouchers to be paid out of the appropriation already provided for in act No. 17 of the Forty-seventh General Assembly for the payment of road district bonds and interest obligations ? such voucher shall be delivered to the person authorized to receive the same on proper satisfaction of such indebtedness, provided that such payments so made shall be charged against the allotment to the respective counties (in which the road was located) as made by the Highway Commission, and if in two or more counties it shall be prorated in accordance with the mileage of the road in each county. ’ ’
The record shows that the Arkansas State Highway Commission, after the passage of the Martineau Road Law in 1927, prepared a table showing the allotments that .should be made to the various counties in the State under the act. In preparing this table, the size, population, and revenue provided for in the act for the various counties were taken into consideration. The record also shows that the amount of outstanding bonds under the act in some counties was greater than the amount of the allotment under the table just referred to, but these outstanding bonds were paid by the commission and the overplus charged to the county so that no more road construction should be had in that county by the commission until a sufficient amount of new road construction had been done in other counties which would equalize this with the counties where the overpayment of the bonded indebtedness according to the allotment by the highway commission had been made. In short, the overpayment of the bonded indebtedness in certain counties was treated as in the nature of an advancement to' them, and the plan was to equalize the allotments of all the counties according to the table prepared by the commission, and in this way it was deemed that the parity plan referred to in § 4 of the Martineau Road Latw copied above would be carried out.
On the part of appellees, it is contended that the same plan should be adopted in the payment of outstanding debts other than bonds provided for by act 153, passed by the Legislature of 1929. They point to the fact that the preamble to the act recites that there was an extensive amount of indebtedness against sundry road improvement districts in the State and that no provision had been made for the payment of these obligations in the act No. 11 passed by the Legislature of 1927. Therefore, it is insisted that, under the provisions of § 1 of this act, the Highway Commission must ascertain the amount of the outstanding indebtedness referred to in the act, and that if the indebtedness thus discharged shall overpay the allotment of the county according to the table prepared by the Highway Commission after the passage of the Act of 1927, that the overplus should be charged to the county,' and no new construction work done until the overplus was absorbed by new road construction in other counties under the allotment prepared by. the Highway Commission.
On the other hand, it is contended by the Highway Commission that such holding will violate the provisions of the Martineau Road Law and the parity plan adopted under it and followed by the commission in making its table of allotments to the various counties. We do not agree with the Highway Commission in its construction of the act under consideration. Parity means equality, and, as used in § 4 of the Martineau Act, means that all, the counties in the State shall be brought in the same condition and treated equally with regard to aid in road building. It is a fact worthy of notice that this was the construction placed upon the act of 1927 by the Highway Commission. They first prepared the amounts which would, be due the respective counties by making equal allotments to them of the road fund when their size, wealth, and the amount of revenue collected under the act should be considered. It was found that the allotments made to certain counties were not sufficient to pay the outstanding road indebtedness against them. The Highway Commission properly conceived that, under the provisions of the statute, it was mandatory upon it to pay all the outstanding bonds provided for in the statute. They did this and then properly charged the overpayment in certain counties against these counties in new road construction work.
The commission should have placed the same construction upon the present act. There is nothing whatever in it which tends to disturb the allotments made or the plan of the commission in paying the outstanding ■bonds as provided for in the Act of 1927. That act remains on the statute book unimpaired, and no attempt whatever is made to alter or modify it or to engraft any of the provisions of the present act into it. The present act is complete in itself and relates to a different kind of obligation of the road improvement districts, which had not been provided for by the act passed in 19-27. The parity plan as adopted by the commission and carried out by it is not in any way disturbed. In fact, it will remain as the allotments due the respective counties as prepared and adopted by the Highway Commission. It is the mandatory duty of the Highway Commission to pay the obligations provided for in the act under consideration and change the amount thereof against the allotments to the respective counties as made by the Highway Commission, and that the overcharge shall remain against such counties until such an amount of new road construction work shall be done in other counties as will absorb1 it.
To illustrate', suppose the State was possessed of lands which had valuable mineral and oil rights and should receive a sum as royalties for their lease. The Legislature alone could declare the public policy of the State as to the public purpose for which these royalties should be devoted. It might pass an act to allot them to the various counties to be used in constructing and improving the public roads of the State, and, if it saw fit, might pay the outstanding road indebtedness of any of such counties and charge the overpayment oif the indebtedness to the amount which they were entitled to receive under the allotment. The reasonable construction of such an act is that the annual allotments to them would not be paid to them "but would be paid to the holders of the indebtedness against such counties as indicated by the Legislature; and the overpayment charged to them in the nature of an advancement.
Hence a majority of the court is of the opinion that it was obligatory upon the Highway. 'Commission to ascertain the amount of the valid outstanding road indebtedness as provided in the act, and to pay the same out of the allotments which were due or which would have become due to- the respective counties in the future and charge the amount thereof against such counties. The language of the act is mandatory in this respect and leaves n,o discretion on the part of the commission in paying the same after the amount of the indebtedness has been ascertained by it in conformity with the provisions of the act. In this connection, it may be stated that there is on hand a sufficient amount of the appropriation made under the provisions of act 11 of the Acts of 1929 to pay the claimants herein. The majority holding this view of the matter is Mr. Justice Humphreys, Mr. Justice Mehappy, Mr. Justice MoHaney and myself. Mr. Justice Smith, Mr. Justice Kirby and Mr. Justice Butler dissent on this branch of the case.
It is next contended that the circuit court erred in awarding a writ of mandamus against the Arkansas State Highway Commission and in adjudging that it should pay the amount of their claims to the respective claimants. Mandamus is an extraordinary remedy which is awarded not as a matter of right hut in the exercise of a sound judicial discretion. It is resorted to for the purpose of securing .judicial or giiasi-judicial action, and not for determining in advance what that action shall be. A party to be entitled to the right must show that he has a clear, legal right to the subject-matter and that he has no other adequate remedy. Merritt v. School District, 54 Ark. 468, 16 S. W. 287 ; Rolfe v. Spybnch Drainage Dist. No. 1, 101 Ark. 29, 140 S. W. 988 ; Patterson v. Collinson, 135 Ark. 105, 204 S. W. 753 ; Snapp v. Coffman, 145 Ark. 1, 223 S. W. 360 ; Duncan Townsite Co. v. Lane, 245 U. S. 308, 38 S. Ct. 99 ; and Ex parte Wagner, 249 U. S. 465, 39 S. Ct. 317.
Section 1 of act 153 of the Acts of 1929 provides that, as soon as possible, the commission shall ascertain the amount of the valid outstanding indebtedness provided for in the act. To ascertain means to find out or to determine the amount of such indebtedness. In the discharge of the mandate of the statute, it became the duty of the commission to determine the amount and validity of the claims presented.
The facts upon which the plaintiffs ask the writ to be issued may be summarized as follows: There were twenty-six claimants, and, in all cases except two, the claimants had judgment against the road district. In each instance, the claim was presented to the Highway Commission before the action was 'commenced. A certified, copy of the .judgment in each case was presented to the auditor of the Highway Department, and proof was offered that nothing- had been paid or delivered to the satisfaction of it except the credits shown. In the two cases where judgment had not been obtained, proof was made of 'the amount and ldnd of services involved under which the claim was made. The statutory attorney of the Highway Department made an investigation of the claims, and found that they were correct as to amount and the balance due upon them. The attorney also reported this fact to the Highway Commission. The Highway Commission claims that under the construction it placed upon said act 153, it could not legally pay the claims. It was not claimed by the Highway Commission that the judgments had been procured by fraud or without notice or that there was any legal or valid reason for setting the judgments aside. Proof was introduced by one of the members of the Highway Commission to the effect that no investigation of the claims had ever been made by the Arkansas State Highway Commission itself, and that it now desired to make such investigation in order to ascertain the amount and the validity of the claims. A demurrer was first interposed and overruled to the petition of each claimant, and the oases were consolidated for the purpose of trial. In each case an answer has been filed by the Highway Commission in which it denied that it had any information as to the construction of the road improvement district or that the road constructed by it had become a part of the State Highway System. It denied that it had ascertained the amount of the indebtedness due and averred that it was of the opinion from such information as it had that the indebtedness mentioned by the claimants was invalid. It admitted that it had refused to ascertain the amount of such indebtedness, but submitted as a reason for doing so that it did not think it was a valid obligation under the terms of the act. During the progress of the trial, an opportunity was given the commission to ascertain the amount and validity of each claim which it refused to do.
A majority of the court is of the opinion that there was an abuse of discretion on the part of the circuit court in awarding the writ of mandamus under these circumstances. It was pointed out that it would have been a vain and useless thing for the commission to have gone to the trouble and expense of investigating and ascertaining the amount oif these claims when it believed that it had no authority to do so. Hence a majority of the court, consisting of Mr. Justice Smith, Mr. Justice Humphreys, Mr. Justice Kirby and Mr. Justice Butler think that the court abused its discretion in awarding the writ of mandamus, and for that reason the judgment of the circuit court must be reversed and the cause remanded for further proceedings according to law.
Mr. Justice Mehaeey, Mr. Justice McHaney and myself are of the opinion that there was no abuse of discretion in awarding the writ. We think that it would conserve no rule of practice or principle of justice to reverse the judgment. Under the facts declared by the record, the Highway Oommission became advised of the existence, af the claims, and in each instance the facts as to the amount and validity of the claim are undisputed, and no suggestion is made that any other or additional proof would disclose a state of facts different from that established in the circuit court.
It results, however, from the views of the majority of the court that the circuit court erred in awarding the writ of mandamus in the consolidated case, and for that error the .judgment must 'be reversed in each case, and the cause will be remanded for other proceedings in accordance with the principles of law announced in this opinion. It is so ordered. | [
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Dunaway, J.
This is an appeal from a judgment of the circuit court affirming the action of the Union County-Board of Education in annexing territory which formerly composed the Thompson School District No. 1 of Union County, to the Urbana-Lawson School District No. 3 of Union County, under the provisions of Initiated Act No. 1 of 1948, Acts of 1949, p. 1414 (Ark. Stats., 1947, § 80-426, etseq.).
The facts are undisputed. There were only 57 school children in the Thompson District on March 1, 1949, which was less than the minimum of 350 enumerates required under the provisions of Initiated Act No. 1 for a school district to maintain its independent existence after June 1, 1949. Prior to June 1,1949, the directors of the Thompson District filed a letter with the County Board of Education requesting that this district be annexed to the Strong School District. On June 1, one of the directors of the Thompson District was informed that it was not known when the question of annexation would be considered by the County Board. On the same day, without any notice to the directors or patrons of the Thompson District, the County Board ordered the annexation of said district to the Urbana-Lawson District. Within the time provided by law an appeal from this order was taken to the circuit court, which affirmed the County Board’s action.
The relevant portions of Initiated Act No. 1 are quoted:
“On June 1, 1949, there is hereby created in each county a new school district which shall he composed of the territory of all school districts administered in the county which had less than 350 ‘ enumerates ’ on March 1, 1949, as reflected by the 1948 school enumeration.” Ark. Stats. (1947), § 80-426.
“It shall be the duty of the newly elected school hoard and the County Board of Education not only to provide an accredited elementary school for every child as close to his home as possible hut also to provide every child access to an accredited high school. To accomplish this purpose, each County Board of Education shall study the entire school program of its county. If it is found that some or all portions of the new School District as created herein can be served more effectively and more efficiently by another district or districts, the County Board of Education with the consent of the Board of Directors of the school district to which annexation is proposed, is hereby authorized and directed to make such annexation or annexations . . .” Ark. Stats. (1947) § 80-428.
The procedure for electing directors of the new district is set out in Ark. Stats. (1947) § 80-427.
Appellants ’ argument for reversal is this: At the time of the annexation order complained of, there was no “United” or “County School District” made up of the “small” districts dissolved by Initiated Act No. 1, since no election of directors for such new district had been held.. Further, notice of the annexation proposed was a jurisdictional requisite for a valid order, by reason of this language in § 4 of Initiated Act No. 1: “Except as otherwise provided in this Act, all matters of reorganization and annexation of school districts undertaken under the provisions of this Act shall be made in accordance with existing laws.” Finally, since the Urbana-Lawson District does not have an “accredited” school, the County Board had no authority to order the annexation.
As to the existence of the new county school district on June 1, 1949, this question was decided adversely to appellants’ contention in the recent case of Stroud v. Fryar, 216 Ark. 250, 225 S. W. 2d 23. There we said: “In other words, the Small Disti'icts were given a period of grace in which to endeavor to join with other districts under existing laws. But when the United District came into existence on June 1, 1949, the Small Districts were thereby automatically integrated into it and lost their previous status as separate school districts.”
The Stroud decision is also determinative of appellants’ second point. After quoting the language set out aoove from § 80-428 of Ark. Stats. (1947), it is said:
‘ ‘ This quoted language gives the County Board of Education power to take any or all territory of the United District and annex such territory to any Large District or Districts, conditioned only on the consent of such larger Districts so affected. . . .” In regard to the language of § 4 above-quoted, we further said in the Stroud case: “The italicized language thus clearly exempted from the provisions of the existing laws such reorganizations and annexations as might be accomplished under § 3 of the Initiated Act before the school directors could have been chosen in the United District. . . . ” In the case at bar, directors had not been elected for the United District, and the consent of the Urbana-Lawson District had been obtained, which was the only condition imposed upon the County Board before ordering the annexation.
Appellants’ argument that the annexation order is to be invalidated because the Urbana-Lawson District does not have an accredited school is equally untenable. The record shows that the school of Strong District, to which appellants are seeking to have the territory of the old Thompson District annexed, is likewise not accredited. As we said in Woodlawn School District No. 6 v. Brown, 216 Ark. 14, 223 S. W. 2d 818: “The Court found in effect that the directors were doing the best they could with what they had, under the circumstances, and we think their discretion which is being honestly exercised should not be interfered with. . . .” An accredited school available to every child in Arkansas is a goal sought to be achieved by Initiated Act No. 1. It is not a condition precedent to annexation. The record shows the challenged annexation order to have been made in exercise of the honest judgment of the County Board of Education on the basis of the facilities available.
The judgment is affirmed. | [
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MoHaney, J.
This is the second appeal of this case. See Ellis & Lewis v. Warner, 180 Ark. 53, 20 S. W. (2d) (320, where the facts, which are substantially the same on this appeal, and the conclusions of law reached therein, are fully stated. We deem it unnecessary to repeat the facts here. On the former appeal the case was reversed and remanded for a new trial. Another trial resulted in a verdict and judgment for appellee. For a reversal of the case on this appeal it is first urged that the court committed reversible error in permitting counsel for appellee to inform and advise the jury that appellants carried liability insurance while it was being selected to tryUhe case. The question arises in this manner: When the case was called for trial, 'both sides announced ready. Counsel for appellee stated to the court in the absence of the jury that they had information that appellants carried liability insurance, and they desired to ask counsel for appellants whether he represented them, or the insurance company, or both. Whereupon counsel stated that he represented both Ellis and Lewis and the United States Fidelity & Guaranty Company, with whom appellants carried liability insurance. Counsel for appellee' then stated that they desired permission to ask some of the jurors some questions touching their connection, if any, with the United States Fidelity & Guaranty Company. The court permitted such questions to be asked over the objections and exceptions of appellants. When the regular panel of the jury was called the court permitted one of the jurors, Mr. John C. Bradford, to be asked, over appellants’ objections and exceptions, these questions: “Do you represent or are you connected with the United States Fidelity & Guaranty Company?” “Do you write any insurance for that company?” “Do you or your people write any insurance for them?” All of these questions were answered in the negative. The court permitted these questions to be asked under the authority of Cooper v. Kelly, 131 Ark. 6, 198 S. W. 94, and Williams-Echols Dry Goods Co. v. Wallace, 142 Ark 363, 219 S. W. 732. Counsel for the appellants insist that the two cases above mentioned are distinguishable from, the case at bar, and that it is controlled by the case of Williams v. Cantwell, 114 Ark. 542, 170 S. W. 250. In Cooper v. Kelly, supra, the court reviewed its former decisions in Pekin Stave & Mfg. Co. v. Ramey, 104 Ark. 1, 147 S. W. 83, and Williams v. Cantwell, supra, and distinguished them from the case then under consideration. The court said: “In those cases it was manifest that the conduct of the attorney representing the successful party and the rulings of the court were well calculated to impress on the minds of the jury that the attorney ostensibly appearing for the defendants in the respective cases was not really their attorney, but was an attorney for an indemnity insurance company that had insured the defendants against any loss that they might sustain on account of such accidents as were therein complained of, and that the defense was really being made for the benefit of such indemnity company or companies. In tooth of those cases it is expressly recognized that it is within the province of an attorney representing a plaintiff to question veniremen concerning their relation to any casualty company whom the attorney might know or might honestly believe to have insured the defendant against loss for the injury which the plaintiff had sustained at the hands of the defendant.” The court further held in that case that trial courts have a wide discretion in permitting questions to be asked jurors touching their competency, and that this court will not reverse on such grounds unless there is an abuse of discretion. In that case counsel for appellee asked one juror on his voir dire whether or not he represented any accident or casualty insurance company, another whether he was under any obligation or was the agent of such company, and others were asked, “Do you know of any accident company or of any agent of such company that has any influence or control over you in the city of Hot Springs?” ' All of which questions were answered in the negative. Many other questions were asked concerning insurance companies, all of which were answered in the negative, hut this court held that the court did not abuse its discretion in permitting same to be asked over objections of appellant. In the Williams-Echols Dry Goods Co. case, supra, the court again followed Cooper v. Kelly and held that where counsel had reason to believe 'that an insurance company was interested in the result of the action, it was not improper to permit counsel to ask prospective jurors concerning their connection with liability insurance companies. In this case only one juror was questioned as above indicated, and there was nothing in the record to disclose that counsel for appellee was not acting in good faith in asking the questions to determine whether the juror had any bias or prejudice for or against either party. We think this case falls clearly within the rule announced in the cases above cited, and that no error was committed in this regard.
It is next insisted that the court permitted an issue to be tried which was not joined by the pleadings, to-wit: Whether appellants were negligent in employing Cooper to operate the truck in hauling gravel. The complaint is the same in this case as it was in the former trial, no additional pleadings being made by either side. Appellee alleged that Jack Cooper, the driver of the truck that injured him, was an employee of the appellants, and negligently ran his truck against him, causing the injuries complained of. Appellants defended then and now on the ground that Cooper was an independent contractor, was not their employee, for whose acts and negligence they were in no way responsible. In the former case appellants asked the trial court to declare as a matter of law that Cooper was an independent contractor and to instruct a verdict in their favor, which the court refused to do. It then asked the court to submit the question as to whether Cooper was an independent contractor to the jury, which the court refused to do. We held on the former appeal that the court did not err'in refusing to declare as a ¡matter of law that Cooper was an independent contractor, bnt that it was a question for the jury, and that the court did err in not submitting it to the jury. We there said: “Even though the jury should find that this relationship- did exist, still appellant might be held liable, if the jury should further find that appellants were negligent in employing Cooper as an independent contractor to do this work. He was only seventeen years old, was driving rapidly in loose rock over an important highway, which appellants knew — one much used by the public, and which the public had the right to use. The jury would or should take into consideration all the facts and circumstances in the case in determining this question.” On the retrial of the case, from which this appeal comes, the court submitted this question to the jury under instructions 1, 2, 3 and 4. We do not think a new question has been injected into the case which is not covered by the pleadings. As above stated, appellee sued on the theory that -Cooper was an employee, and the defense was interposed that he was an independent -contractor. In our former opinion we quoted from 3 Elliott on Railroads, 3d Ed., § 1407, p. 70, stating’ the general rule to' be that: “When an independent contractor is employed to perform a work lawful in itself and not intrinsically dangerous, the company, if it is not negligent in selecting the contractor, is not liable,” etc., so in submitting the case to the jury it was proper for the court in announcing the rule relative to independent contractors to submit the question as to whether the employer was negligent in selecting the contractor. This might be done in one instruction or in separate instructions. In this case the court submitted the question on instructions separate from the definition of an independent contractor. We think no error was committed in this regard. It is further said that the instructions on the subject given by the court are conflicting and contradictory. We have examined them carefully and do not think the jury could have been misled. The instructions announced correct principles of law in accordance with onr former holding in this case.
It is next said that the court should have told the jury as a matter of law that Cooper was an independent contractor for whose acts appellants were in no way responsible, and that appellee was guilty of contributory negligence. Both of these questions were considered on the former appeal and decided adversely to appellants’ contentions, and since the evidence in the case on this trial is substantially the same as in the former, the decision of the court on the former appeal becomes the law of the case, and appellants’ contentions ■ in this regard must be overruled.
We find no error, and the judgment is affirmed. ■ | [
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Hart, 'O. J.,
(after stating the facts). This court has held in accord with the weight of authority that where there is douibt or uncertainty or a dispute has arisen as to the true location of a 'boundary line, the owners of the adjoining lands may, by parol agreement, fix a line that will be binding uponThem, although their possession under such agreement may not continue for the full statutory period. Sherman v. King, 71 Ark. 248, 72 S. W. 571 ; Cox v. Daugherty, 75 Ark. 395, 36 S. W. 184, 112 Am. St. Rep. 75 ; Deidrich v. Simmons, 75 Ark. 400, 87 S. W. 649 ; Payne v. McBride, 96 Ark. 168, 131 S. W. 463 ; O’Neal v. Ross, 100 Ark. 555, 140 S. W. 743 ; Butler v. Hines, 101 Ark. 400, 42 S. W. 509 ; Malone v. Mobbs, 102 Ark. 542, 145 S. W. 193 ; 146 S. W. 143 ; and Sherrin v. Coffman, 143 Ark. 8, 219 S. W. 348.
In a case-note to 8 Ann. Cas. page 83, it is said that this holding is in accord with the decided weight of authority in this country. Among the cases cited is that of Boyd v. Graves, 4 Wheat (U. S.) 513. In that case the Supreme Court of the United States said that such agreement is “not a contract for the sale or conveyance of lands, and has no ingredients of such a contract.”
The theory of these cases is that where owners of adjoining tracts of land adjust their division line by parol agreement or by long acquiescence, they do not convey any estate whatever between themselves, and that the agreement does not operate upon the title at all. The reason is that after their boundary line is fixed 'by consent, they hold up to it by virtue of the title deeds and not by virtue of a parol transfer. In such cases, the agreement or consent serves to fix the line to which the title of each extends.
In Cutler v. Callison, 72 Ill. 113, the rule itself and the reason for it is clearly stated as follows:
“While it may be regarded as well settled that the title to real estate cannot be transferred by parol, yet it is a principle well established that the owners of adjoining tracts of land may, by parol agreement, settle and establish permanently a boundary 'line between their lands, which, when followed by possession according to the line so agreed upon, is binding and conclusive, not only upon them, but their grantees.”
In the case at bar, counsel for appellant first earnestly insist that there is no testimony upon which to predicate an application of the rule of law above an-no'unced. 'They claim that there was no doubt, uncertainty, or dispute as to the boundary line between the two forty-acre tracts, and no proof tending to show that the parties agreed upon such division line. We cannot agree with counsel in this contention. The witnesses for the plaintiffs testified that fifty-eight years before the present controversy arose a stone marked the corner between the two forty acres of land, and that an old division fence was extended across the forty, and that this division line was recognized as the boundary between the owners of the adjoining forty acres of land. The land at that time was in cultivation on each side of the division fence, and the owners of the two tracts of land cultivated up to the division line. The old division fence was recognized as the boundary line between the two forty-acre tracts for many years.
Under this state of proof, the jury might have found that the long acquiescence in the division fence as a boundary line constituted a parol agreement to that effect and warranted the court in submitting1 this question to the jury. The evidence in reference to the division fence as the agreed line and the possession of the parties up to it was submitted to the jury under instructions according to the principles, df law above announced, and no useful purpose could be served by setting out the instructions in detail and reviewing them at length.
The court also submitted to the jury tbe question whether or not the defendant had acquired title to the disputed strip of land by adverse possession. The evidence adduced in favor of the plaintiffs warranted the jury in finding that there had been such long acqidescence in the old fence row as the division line 'between the two forty-acre tracts of land by the owners of the respective tracts that it amounted to a parol agreement that the old fence row was the division line, and that the defendant had not aoquired’title by adverse possession.
It is true that the disputed strip of land was after-wards permitted to grow up in trees, but for a long period of time it was cultivated and claimed by the owner of the south forty, and the old fence row was acquiesced in by the owners of both tracts as the division line for many years. This warranted the jury in finding that there was a parol agreement to that effect; and this agreement under the authorities above cited, was just as binding upon the defendant Robinson as it was on his grantors.
We find no reversible error in the record, and the judgment will therefore be affirmed. | [
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Humphreys, J.
Appellee recovered a judgment against appellant in the circuit court of Sebastian County, Fort Smith District, for $500 on account of an injury to the index finger of his right hand alleged to have resulted from appellant’s failure to warn him of the dangers and hazards incident to the operation of a machine known as an “air router” which he was operating, from which judgment an appeal has been duly prosecuted to this court.
Appellant relies for a reversal of the judgment upon the sole alleged ground that the undisputed testimony showed that the injury resulted from an accident, not from any negligence on the part of appellant.
The following facts and disputes in the testimony necessary to a determination of the question presented on appeal, as reflected by the record, are as follows:
Appellee, a nineteen-year-old boy of ordinary intelligence and without experience in the use of machinery, was employed by appellant to operate the “air router” or the machine used in the production of certain parts for the manufacture of furniture. The method of operating the machine was to put small blocks to be so used on a table under sharp tools or bits making six thousand revolutions a minute and to press the tools down by means of a foot pedal onto the block for the purpose of making certain indentures in them and, after making the indentures, to release the pedal and allow the bit or tool to raise up and release the 'block. The indentures in each block were quickly and rapidly made, and as fast as completed were put or pushed aside and another block placed under the bit by the operator. The indentures could be made on about four blocks per minute. Appellee had operated the machine for about two weeks prior to his injury. The machine was in charge of Jo Friga, who set it up and aligned it every morning before appellee began to operate it. Appellee’s principal work the two weeks he operated the machine was to cut a little groove in dresser drawer fronts with a bit from one-fourth to one-half inches in diameter, and to make or shape the work. On the morning the injury occurred Jo Friga set up the machine and inserted therein a larger bit than had been used in making grooves for the purpose of cutting a “rozette” about two and one-half inches in diameter on blocks about three inches wide. He ran ten or more blocks through the machine to see that it was in proper alignment, and then turned it over to appellee.
Jo Friga testified that one purpose of running the blocks through the machine was to show appellee how to do the work.
Appellee entered upon his duties and continued to operate the machine about thirty-five minutes before being injured. During that time he had run about one hundred and fifty blocks through the machine.
Appellee testified that at that juncture his index finger was struck by the rapidly revolving bit and injured. He was unable to tell just how his finger came in contact with the bit. The folio-wing interrogatory and answer thereto is indicative of his knowledge as to how the injury occurred:
“Q. Can you explain how the injury occurred? A. That is a mighty hard proposition; it runs close to six thousand revolutions per minute. It was done in just what time it would take the machine to turn a fraction of a revolution.”
Appellee further testified that he was employed by H. B. Williams, appellant’s mill foreman, by whom he was taken to the machine and turned over to Jo Friga, who had the machine in charge; that Jo Friga set up the machine and put him to work on it, and each morning thereafter did so until he was injured; that neither H. B. Williams nor Jo Friga instructed him how to use the machine or of the dangers or hazards incident to operating same; that what knowledge he acquired relative to the operation of the machine was through observation when Jo Friga set the machine up and ran a few blocks through it; that he knew the bit would cut his fingers or hand if he allowed them to come in contact with it and tried to keep them away from it; that when the bit was not down on the block there were about four inches between it and the block, but at the time of the injury he was not trying to, and did not, pass his hand between the block and bit.
H. B. Williams and Jo Friga testified that when they put appellee to work on the machine they explained the manner of operating same to him and cautioned him against putting his fingers or hands against or under the bit, telling him that, if he did so, the bit would cut them off, and Jo Friga further stated that when he set the machine up for use by appellee on the morning of his injury he again cautioned him not to put his hand or fingers against or under the bit, fully explaining the hazard or risk in doing so.
On rebuttal appellee stoutly denied their testimony in every detail, stating that the only information received by him relative to operating the machine was in observing Jo Friga running blocks through it after setting same up for use, and that they never informed him of any dangers or hazards incident to operating same.
It will be observed from the record thus detailed that the question whether appellee was sufficiently instructed in the use of the machine and relative to the hazards and dangers incident to the operation of same was a hotly disputed question of fact. This question of fact was submitted to the jury for determination under correct declarations of law. The rule of law relative to the affirmative duty of an employer to warn and instruct an employee in cases of this kind is correctly expressed in § 77 on pp. 565, 566 and 567 in 18 E. C. L. under the title of Master and Servant, and is as follows: “If a person employ another to do work of a dangerous character or in a dangerous place, and the employee, because of youth, ignorance or inexperience, fails to appreciate the danger, it is a breach of duty and negligence on the part of the employer to expose him thereto, even with his consent, unless the employer first give him such instruction, caution and warning as will enable him to comprehend the danger and to do his work safely with the exercise of proper care , on his part. * * * Whether the employer has discharged the duty of warning and instruction in any particular case is a question peculiarly within the province of the .jury. Of course, in order that the master may be held liable on the ground of having failed to instruct a young or inexperienced servant, the failure to instruct must have been the proximate cause of the injuries sustained by the servant.”
. It is undisputed that appellee was young and inexperienced in the use of the machine he was operating. In view of the rapid revolution of the bit,, the close proximity of the hand or fingers to the bit in the operation of the machine and the rapidity of putting the blocks under the bit, the dangers and hazards incident to operating same were great. It is the character of machine that calls for instruction and warning from an employer who employs inexperienced youth to operate same. The jury has found that neither H. B. Williams nor Jo Friga instructed and warned appellee in the use of the machine or of the dangers and hazards incident to operating it. The negligence of appellant under the rule of law quoted above was in exposing appellee to this danger without properly warning and instructing him.
Appellant argues, however, that the evidence does not reflect that the failure to instruct or warn appellee was the proximate cause of the injury. Appellee testified that he knew the bit would cut his hand if it came in contact therewith, and that he tried to keep his hand away from it. There was no defect or break in the machinery that caused the injury. Appellee did not purposely put Ms finger under or against the bit. The only thing that could have caused the injury was Ms failure to exercise the degree of care to avoid the injury commensurate with the dangers incident to the operation of the machine. The purpose of instruction, caution and warning on the part of the employer is to enable the employee to comprehend the danger incident to the work, and to impress upon him the necessity for being careful in the performance of Ms duties. The jury was warranted in indulging the inference from the evidence in the case that appellee did not appreciate the great dangers and hazards incident to the operation of the machine on account of appellant failing to instruct, caution and warn him, and that, had it done so, the injury would not have occurred. There is substantial, direct and positive evidence in the record to sup-part the finding of the jury that appellant was guilty of negligence in exposing appellee to the dangers incident to the operation of the machine without sufficiently instructing, cautioning and warning him; and sufficient inferable evidence to support the finding of the jury that the injury was the direct result of appellant’s negligence in failing to instruct and warn him.
Appellant also contends that under the evidence appellee assumed the risk. We do not think so, for under the findings of the jury appellee did not know of and appreciate the dangers and hazards incident to operating the machine. Of course he could not assume risks which he did not know of and appreciate.
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Conley Byrd, Justice.
Informations were filed against appellee Jerry Roberts charging him with six violations of the State Credit Card Crime Act, Ark. Stat. Ann. § 41-1977 (Supp. 1971). Each information was filed in the name of Alex Streett, Prosecuting Attorney, by Francis T. Donovan, Deputy Prosecuting Attorney. After the jury was impaneled, appellee moved to dismiss the charges against him because Francis T. Donovan had not been duly appointed as a deputy prosecuting attorney pursuant to Ark. Stat. Ann. § 24-119 (Repl. 1962). The trial court granted the motion and the State has appealed. For reversal the State in its brief contends that the de facto status of Deputy Prosecuting Attorney Francis T. Donovan was sufficient to sustain the validity of the informations filed.
Mr. Donovan appeared at oral argument and attempted to raise a constitutional issue and to contend that he was a deputy de jure. Because such arguments had not been made in the briefs and because appellee was not necessarily in a position to respond, as is our practice, we did not permit the points to be raised or argued. Since such issues may be raised in an action to which Mr. Donovan is a party, nothing herein stated is to be considered as expressing our opinion on those issues.
Appellee relies upon State v. Eason and Fletcher, 200 Ark. 1112, 143 S.W. 2d 22 (1940), to support the proposition that he was entitled to raise the issue as to Donovan’s qualification.
The record shows that Alex Streett was elected as prosecuting attorney and took office on January 1, 1971, and that he was elected in 1972, to a second two year term and took the oath of office on January 1, 1973. Pursuant to Ark. Stat. Ann. § 24-119 (Repl. 1962), Mr. Donovan was appointed as a deputy prosecuting attorney on January 1, 1971, and was confirmed by the circuit court. No new appointment by the prosecuting attorney nor confirmation by the court was made for Mr. Donovan for the term commencing January 1, 1973, but he continued to act as such deputy and to try cases before the circuit court until the present objection was raised by appellee on May 10, 1973. Mr. Streett appeared and con firmed that Mr. Donovan was his deputy. He also testified that he had not made new appointments for his deputies serving in other counties.
We have a number of cases involving de facto officers and the right of a litigant to collaterally attack the validity of proceedings by de facto officers. See Faucette, Mayor v. Gerlach, 132 Ark. 58, 200 S.W. 279 (1918); Keith v. State, 49 Ark. 439, 5 S.W. 880 (1887), and Kaufman & Co. v. Stone, Admin., 25 Ark. 336 (1869). The de facto rule and the public policy supporting the same are set out in Faucette, supra, as follows:
“ ‘An officer de facto is one who by some color of right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact. His color of right may come from an election or appointment made by some officer or body having colorable but no actual right to make it; or made in such disregard of legal requirements as to be ineffectual in law; or made to fill the place of an officer illegally removed; or made in favor of a party not having the legal qualifications; or it may come from public acquiescence in the officer holding without performing the precedent conditions, or holding over under claim of right after his legal right has been terminated; or possibly from public acquiescence alone when accompanied by such circumstances of official reputations as are calculated to induce people, without inquiry, to submit to or invoke official action on the supposition that the person claiming the office is what he assumes to be.’ Cooley on Constitutional Limitations (7 ed.), pages 897 and 898. Continuing, the learned author said: ‘But for the sake of order and regularity, and to prevent confusion in the conduct of public business and insecurity of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be. In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. This is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally.’ ”
Keith, supra, and Kaufman & Co., supra, support the proposition that the title to an office can only be tried in a direct proceeding to which the officer is a party. In the cases of Greenwood v. State, 17 Ark. 332 (1856), and Miller v. Callaway, 32 Ark. 666 (1878), the officers were direct parties to the proceedings.
The confusion that follows when courts fail to recognize the de facto officer doctrine can be seen by the results that flowed from our decisions in Howell v. Howell and Stevens v. Stevens, 213 Ark. 298, 208 S.W. 2d 22 (1948). See also Pope v. Pope, 213 Ark. 321, 210 S.W. 2d 319 (1948).
In Smith v. Landsden, 212 Tenn. 543, 370 S.W. 2d 557 (1963), the Supreme Court of Tennessee in determining what constituted a “collateral attack” said:
“From the above quotations can be gleaned several guidelines for determining whether a particular attack upon the title of a public official is ‘collateral.’ By the very definition of the word if the attack is secondary, subsidiary, subordinate, i.e., related to the main matter under consideration but not strictly a part thereof, the attack is indirect and collateral. If the official’s title is questioned in a proceeding to which he is not a party or which was not instituted specifically to determine the validity of his title the attack is collateral. If the title of the officer is questioned in a proceeding in which he is a party merely because he is acting in his official capacity the attack is collateral. Lastly if the attack is made because it is necessary to show the officer’s want of title to lay a basis for some other relief the attack is collateral....”
When the record before us here is considered in the light of the foregoing authorities, it appears that Mr. Donovan, through the acquiescence of the circuit judge, was at least a de facto deputy prosecuting attorney. Furthermore, the attack here made upon his authority to act would constitute a collateral attack and as such it cannot be made under the law. For cases from other jurisdictions denying an attack upon the status of a deputy prosecuting attorney under similar circumstances, see Walker v. State, 146 Tex. Crim. 138, 171 S.W. 2d 887 (1943), and State v. Nevius, 77 Ohio Ct. App. 161, 66 N.E. 2d 243 (1945).
In State v. Eason and Fletcher, supra, relied upon by appellee neither the de facto status of the officer nor the collateral attack issue was considered. Consequently, we do not consider the language thereof controlling in this case.
For the reasons herein stated the order of dismissal is reversed and remanded.
No objection was raised to the time the motion was made. See Ark. Stat. Ann. § 43-1206 (Repl. 1964) and Johnson v. State, 223 Ark. 929, 270 S.W. 2d 907 (1954).
The trial Judge said he would not approve the appointment of Mr. Donovan, but see State ex rel. Pilkinton, Prosecuting Attorney v. Bush, Judge, 211 Ark. 28, 198 S.W. 2d 1004 (1947), holding that the judge’s actions are subject to review.
The record does not explain why Mr. Streett did not sign the informations and proceed with the trial. | [
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Mehapfy, J.
This action was 'begun by the appellee against the appellant, a corporation, to recover damages for an injury alleged to have been received because of the neg'lig’ence of the appellant. Appellee was in the employ of the appellant, and at the time of the injury was assisting in feeding a shaper machine, at which automobile sills were being manufactured. The machine consisted principally of a table with a metal surface about three feet above the floor and was about five feet long and three or four feet wide. Adjusted to and set in said tatole were two- spindles or vertido axes. That in said spindles or vertical axes were attached knives which revolved at a high rate of speed; the knives were set in metal collars against which the wood to toe cut was pushed; the spindles were about four feet apart, and on a line of about two feet from the south edge of the table. The board out of which the sill was to be made was placed upon and clamped to another heavy board designated the pattern, and said board was shaped to conform to the pattern; the pattern used at the time of the accident was a very heavy board about two inches thick and six or seven feet long and of a width varying from two inches to one foot; there were four handles affixed on the edge of the pattern, two on one end being grasped by the appellee and two at the other end held by a fellow workman. No guards were in front of the handles to protect the hands of appellee or to keep them from coming in contact with the revolving knives. It was the practice of those operating the machine to alternate in pulling said pattern and unshaped ¡board attached thereto across the revolving knives. About three o’clock p. m. while plaintiff was engaged in the ordinary and regular duty assigned to him, he was thrown ag-ainst the revolving knives which permanently injured his hand. Appellee alleged that he was in the exercise of care at the time, and that the injury was due solely to the negligence of the appellant, its agents and employees, in failing to provide adequate guards and owing to the negligence and carelessness of the fellow employee in suddenly jerking the pattern, the handles of which were properly grasped by appellee, throwing appellee against the revolving knives; he alleged that he suffered great pain and anguish and would continue to suffer; that his hand was permanently injured. Prior to the injury, appellee was an able-bodied man, earning good wages and in line for advancement; his earning capacity is permanently impaired. The appellant filed answer, denying each allegation of negligence, pleading assumed risk, negligence of appellee and unavoidable accident.
The appellee testified that the machine was made something like a table, the top covered with some kind of metal, and on the day he received his injury, he and the operator were running sills, appellee being at the small end of the pattern and the fellow servant at the large end. He testified that the fellow servant snatched awfully fast, and that appellee had just told him ten minutes before that he was too fast for him. Appellee had never run the particular machine and had never run sills. The fellow workman had carried him over there, and he had been at work about an hour. That the other workman would give a quick snatch and snatch both of appellee’s hands into the knives. There were four handles on the pattern, all on the back edge. In running these things you are required to hold your hand a certain way. There is no possible way to hold the handles unless you grip them; the fellow servant, when he pulled, had been snatching. Appellee had been working for the company about a year; worked on different things, on different machines, but had not worked on a machine like this one. Appellee worked with Mr. Truhett about one hour before he was injured; he received his orders from Mr. Truhett; Truhett did not tell him how to operate the machine. There was nothing- wrong with the pattern, only there was no guard there, no protection. When Truhett snatched it, he snatched it out of appellee’s hand; when it hit his hand, it knocked him back. There was a guard on one handle, but not the handles that appellee was using. The physician testified about the injury and the extent of it, and said that his right hand was about ten per cent, useful. He doubted if any treatment which could be given would relieve the stiff condition of his fingers.
Frank McWilly testified that he was in the employ of appellant and was cleaning up near the machine where Haralson was employed; was present when Haralson was injured and was looking at the man handling that machine, was attracted byi the manner in which he was performing his work; he was just like a shot out of a Winchester gun, .jumping up this way fast as he could, and Lisbon’s hand got into the machine and was injured. There was not any guard on the machine in front of the right handle. It seemed to him that Haralson had a firm grip. This witness never worked at a machine like the one at which Haralson was at work.
Truhett, who was working with Haralson, operating the shaper, testified that Haralson took orders from him; that he supposed Haralson’s hand slipped off; that he had cautioned him before that; had told him if he was not careful Ms hand would slip off and go into the knives, and that tMs was what happened; he testified that he did not snatch it or jerk it, and he also testified that Haralson did not tell him he was working too fast. He was running the machine slow. He said you could not make the sills correct by jerking and snatching it. He testified that the guard at the end is to keep chips and splinters from hurting your hand; that if there had been a guard it would not have kept appellee’s hands from, going into the knives; that there was no necessity for the guard; that he was not jumping and going from side to side, and that he could not have cut the pieces correctly in any such manner. If he had jerked it, it would not have been cut smooth. The reason the guard is placed there is to prevent shavings coming on the handle; had known Haralson ever since he had been at work there; had never worked on a shaper machine, but they had been working on the box shaper once, but that had been quite a while ago. The knives cannot out beyond the pattern. The cuff holds it away from the knife. That he was not working fast and was watching Libson to see that he held it up there right. He testified that Haralson was experienced on shapers; that, when they pulled it to one another, quite a bit of the pattern extended over the table, and you had to hold it up. Haralson was called a helper. The table was in good shape with a steel top.
Other employees of the appellant testified, in substance, that a guard was unnecessary, and corroborated Truhett as to the manner in wMch the work had been done in order to cut the sills properly; that if it was jerked through fast, it failed to cut clean. There was no guard on the end, the other end does not have it because it is not considered necessary. On the other patterns, some have a guard on the outside handle and some don’t. They do not put guards on to protect the hands of workmen; it would not involve a great expense to put on a guard; the effect of the guard would depend upon what kind of guard was up there. The machine was proper and safe. Other witnesses testified to substantially the same facts as Truhett.
The evidence as to the negligence of the fellow.servant is conflicting. All agree, however, that there was no guard to protect the hands of the operator.
The appellant.first contends that the court should have • given a peremptory instruction requested by it. It is contended that the appellee assumed the risk; that under the evidence fair minds could not arrive at different conclusions. In other words, he contends that the. appellee should be held to have assumed the risk as a matter of law. In making- this contention and argument, however, the appellant does not take into consideration the evidence of the negligence of the fellow servant. The evidence on behalf of the appellee showed that the fellow servant was negligent in jerking and snatching the machine, and that this negligence caused the injury. The servant while he assumes the ordinary and usual risks and hazards of his employment does not assume the risk of the negligence of the company for which he is working nor the risk of the negligence of any of his fellow servants. Aluminum Co. of N. A. v. Ramsey, 89 Ark. 522, 117 S. W. 568 ; Southwest Power Co. v. Price, 180 Ark. 567, 22 S. W. (2d) 373 ; C. R. I. & P. Ry. Co. v. Allison, 171 Ark. 983, 287 S. W. (2d) 197 ; C. R. I. & P. Ry. Co. v. Daniel, 169 Ark. 23, 273 S. W. 15 ; E. L. Bruce Co. v. Yax, 135 Ark. 580, 199 S. W. 535 ; St. L. S. W. Ry. Co. v. Garrett, 179 Ark. 690, 18 S. W. (2d) 321 ; Newark Gravel Co. v. Barber, 179 Ark. 799, 18 S. W. (2d) 331.
The court did not err in refusing- to direct a verdict for appellant. The question of assumed risk in this case would have been a question for the jury if there had been no evidence of the negligence off a fellow servant. From the evidence in this case it cannot be said that the danger was so obvious and open that a prudent person would not have continued the work. The evidence in the record does not show very clearly the kind of machine being used nor the location-of the knives. It is evident from the record that the machine was exhibited to the -jury and witnesses demonstrated the manner of operation. The machine was about four and a half or five feet long, about three and a half feet'high and had a blazer on it. Spindles coiné-up each side. These spindles have knives on them, and cut what you run on it. The machine is made something like a table. -There was a guard on one handle, but no guard on the handle which appellee was- using. . One of appellant’s witnesses. testified that the (knife could not cut beyond the pattern. The cuff holds it away from the knife. There is evidence about the practical use of a guard and as to whether a guard was necessary, but practically no evidence as to whether the danger was obvious or apparent. It-therefore appears that the question of assumed risk was a question for the jury. While the rule is firmly established that a servant assumes the ordinary risks and hazards incident to his employment, it is said: “Although the defense of assumption of risk is established as a part of the law and will be applied in all cases fairly within the rule, it is nevertheless, not a favored doctrine, but at best is artificial and harsh and should not be extended beyond its reasonable limits.” 39 C. J. p. 689.
In cases where intelligent, reasonable and fair-minded men would differ as to whether the danger- was obvious or whether it was one of the ordinary risks incident to the employment, the question must .be left to the jury. “Whether- the servant knew and appreciated the danger or, in the exercise of ordinary care,-ought to have known of it so as to be chargeable with the assumption -of the risk thereof, is a question for the .jury, unless the evidence warrants but a single reasonable inference to such fact. Thus on conflicting evidence it is for the jury to determine whether the danger was obvious or latent, and whether the servant had sufficient opportunity to discover it. ” 39 C. J., p. 1188, § 1365.
Appellant next contends that the court erred in refusing to give its instruction No. 2, which follows: “No. 2. The court instructs the jury that it was as much the duty of the plaintiff, Haralson, to have avoided an injury to himself as it was the duty off Truhett to have prevented an injjury. If, after a consideration of the testimony, you find that the injury sustained by the plaintiff was the result of his failure to exercise ordinary care in avoiding the injury, then your verdict will be for the defendant.” This instruction was properly refused because it told the jury in effect that plaintiff could not recover if he was guilty of contributory negligence. This is not the law. Contributory negligence is not a bar to recovery. The court gave a correct instruction on contributory negligence.
It is next contended that Truhett should have been permitted to testify that, if there had been a guard there,it would not have kept appellee’s Hand from going into the knives. This was not only a mere opinion, but the machine itself was in the presence of the jury, and they could see whether a guard would have been a protection. The witness gave no reason why it would not have protected him. This witness and others were permitted to show the machine and knives and demonstrate how it was used.
There was no error in the court refusing to permit witness LaiClear to testify about what the record showed as to how fast other employees worked. The witness did not make the record, and there was no evidence that it was correctly kept. He was undertaking to testify as to what the record showed from a memorandum. Appellee did not object to the record, but asked that he be required to produce the record, and the appellant did not offer to do this.
As sustaining its contention that; Truhett should have been permitted to state his opinion about the guard, the appellant cites and relies on Railway Company v. Barron, 166 Ark. 641, 267 S. W. 582. Jn that case the court held that the statement of the witness was proper because he stated at the time the facts upon which he based his opinion. The other case relied on is Pine Bluff Compress & Wurehouse Co. v. Andrews, 180 Ark. 106, 20 S. W. (2d) 633. In that case the witness did not give his opinion but stated facts.
The evidence was in conflict as to Avhether the fellow servant was guilty of negligence that caused the injury, and this was a question for the jury. We find no error, and the judgment of the circuit court is therefore affirmed.
See Crawford & Moses’ Dig., § 7145 (Rep.). | [
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Butler, J.
On the 29th day of December, 1928, Claude Crow and his entire family, consisting .of his wife and five children, were injured in an accident. Crow, his wife, and four children were killed outright, and the oldest daughter, Irene Crow, a child under the age of fourteen, lived until some time the next day. At the time of his death Crow was the owner jby warranty deed of certain lands in Boone and Newton counties. He died intestate, and this suit was brought by Bunk Chaffin, appellant, the father of Mrs. Claude Crow, and the maternal grand father of Irene Crow, seeking to he declared the owner of one-half interest in the lands of which Clande Crow died seized and possessed, and asking for a partition.
The suit was prosecuted by the appellant on the theory that he inherited a one-half interest in the lands owned by Claude Chow by virtue of the statute of descents and distributions, and upon the further theory that, although the legal title to the lands was in Claude Crow, his wife Mrs. Claude Crow was an equitable owner of an interest therein, and that a trust should be declared inuring to the benefit of the appellant. The evidence adduced by the appellant tended to show that he had at one time given his daughter, Mrs. Claude Crow, the sum of $750 and that she did a part of the work on the farm of her husband, that she also attended to a considerable part of the business, keeping* the books and issuing checks, and was consulted and considered in all business transactions. In addition to this, she did her housework and raised a number of chickens each year.
It is settled by the decisions of this court that as a general thing a trust results by operation of law in real estate to -the one paying the purchase money where deed is taken by another, but it is essential that such purchase money must be paid at the same time'or previous to the purchase, so as to be a part of that transaction, and while parol evidence is admissible to establish such trust that evidence must be clear and satisfactory. Sayle v. McLean, 29 Ark. 612 ; Dillard v. Battle, 166 Ark. 241, 266 S. W. 80 ; Marable v. Hamilton, 169 Ark. 1079, 277 S. W. 876.
The evidence in this case fails to meet the requirement of the rule above stated, for it was nowhere shown that Mrs. Claude Crow ever used any of the money given by her father toward the payment of the purchase price of the lands herein involved, or that any of 'her earnings were used for such purpose. *
Irene Crow, having survived her father and being his sole living heir, became seized and possessed of the lands of her father by inheritance, and, she dying without descendants, the descent of the lands is controlled by § 3480 of the Digest, which is as follows: “In cases where the intestate shall die without descendants, if the estate conle by the father, then it shall ascend to the father and his heirs; if by the mother, the estate, or so much thereof as came by the mother, shall ascend to the mother and her heirs; * * This statute was first considered and construed in the case of Kelly’s Heirs v. McGuire, 15 Ark. 555, and the conclusions there reached have been followed by this court in a number of decisions down to and including the case of Eason v. Highley, 181 Ark. 933, 28 S. W. (2d) 1048. In the case of Kelly’s Heirs v. McGuire, supra, the court had under consideration each of the provisions of the statute of descent and distribution, and, after a careful analysis, said: “After carefully considering each of the provisions of the statute, and all together as a whole, we have come to the following, conclusions: * * * ”
“3rd. that, as to real estate, it was the design of the Legislature, where there were no descendants, to point out the lines of the succession, and that this is to depend on the fact, whether the inheritance is ancestral or new; and, if ancestral, then whether it come from the paternal or maternal line.
“4th. If the inheritance was ancestral, and come from the father’s side, then it will go to the line on the part of the father, from whence it came, notin postponement, hut in exclusion, of the mother’s line; and so, on the other hand, if it come from the mother’s side, then to the line on the part of the mother, from whence it came, to the exclusion of the father’s line.” '
As the conveyances were made to Claude Crow, the title devolved to Irene Crow, his daughter, by inheritance, and as it came from the father it will go to the line on the part of the father to the exclusion of the maternal kin. The decree of the trial court in dismissing the hill of the appellant for want of equity and finding for the interpleaders, the paternal grandparents, uncles and aunts of Irene Crow, appellees, must be sustained.
The decree is therefore affirmed. | [
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Butler, J.
Frank D. Neighbors was insured under a policy issued by the appellee company against result of bodily injuries received at the time the policy was in force effected by external, violent and accidental means in the manner thereafter stated in the policy. Neighbors, while riding a motorcycle, was run down and injured by an automobile, and died within a short time. .Suit was brought by the beneficiary, Emma E. Neighbors, appellant, and the case was submitted to the court sitting as a jury on an agreed statement of facts and the policy involved in the suit.
It was agreed that the policy was in full force and effect at the time of the injury, and that said injury occurred while the deceased was riding on one of the thoroughfares of North Little Rock on a motorcycle and was caused by his being struck from the rear by an automobile throwing him upon the pavement, the automobile passing by without striking his body. From the effects of this accident the insured died within about two days. The provision of the policy, in so far as it is material to the issues involved, provided that the insurer should be liable for injuries effected solely by external, violent and accidental means where the same was caused “by the collision of or by any accident to any private horse drawn vehicle or private motor driven automobile in which the insured is riding or driving. ’ ’ The question we are called upon to determine is whether a motorcycle comes within the provision of the'policy above quoted, it being the contention of the appellant that the word “automobile” as used in the policy is a generic term and includes motorcycle.
One line of decisions holds that in statutes passed for purposes of taxation or police regulation, the term “automobile” would include a motorcycle unless expressly excluded. A typical decision is that of the State v. Freels, 136 Tenn. 483, 190 S. W. 454, where the validity of an act regulating the use of motordriven vehicles was called in question on the ground that the caption of the act referred to regulation of ‘ ‘ automobiles, ’ ’ while the body of the act regulated the operation “of any automobile, locomobile, motorcycle, or any other vehicle of like character” and was therefore violative of the constitutional provision that “no bill shall become a law which embraces more than one subject, that subject to be expressed in the title.” The court held that as all intendments are in favor of the constitutionality of an act passed with requisite form and ceremony, and where one of two reasonable constructions would render the law obnoxious to the constitution and the other would not, the latter would be adopted by the court, and that, therefore, the word “automobile” as used in the caption was iised by the Legislature as a generic term and intended to include by its use all self-propelled vehicles which would include motorcycles.
But in those cases where private contracts are entered into it appears to be the uniform holding of the courts passing upon that subject that, in a contract where the word “automobile” is used, it is to be taken in its ordinary and popular acceptation, which is a motor-driven vehicle having four wheels, a body, sides and top, suitable and intended for the conveyance of persons, and does not include such a vehicle as a motorcycle. In the policy under consideration the liability is restricted to accidents to the insured while riding or driving in a private horse drawn vehicle or private motordriven automobile. In a suit upon a policy identical in its terms with that herein involved and upon a state of facts practically the same as here, Anderson v. Life Casualty Ins. Co. of Tenn., 197 N. C. 72, 147 S. E. 693, in holding that the appellant could not recover under the terms of the policy the court said: “Is a motorcycle a motor-driven car? The question upon which we have no direct decision has been determined by decisions of other courts adversely to the contention of appellant. The clause under consideration, ‘motor-driven car in which the insured is riding or driving’ was construed by the Court of Errors and Appeal of New Jersey in Perry v. North American Accident Insurance Co., 104 N. J. 117, 138 Atl. 896.” * * *
In Salo v. North American Accident Insurance Co., 257 Mass. 303, 153 N. E. 557, the Supreme Court of Massachusetts said: “The word ‘car’ is ordinarily used in speaking of an automobile. It is a common expression describing an automobile. It is a matter of common knowledge that in ordinary conversation a motor cycle is not referred to as a car but as a motorcycle, and an accident insurance policy covering death in a wreck of a motor driven car does not cover death in a wreck of a motor cycle. The difference in mechanical construction of automobiles and motorcycles does not indicate that a common designation would apply to both. A motorcycle having ordinarily two wheels is a machine more in the nature of a bicycle equipped with motor power.”
In the case of Perry v. North American Accident Ins. Co., referred to by the court in the Tennessee case above quoted, it was held that a policy providing for the payment of certain sums in the event of death “by wrecking or disablement of any private horse-drawn vehicle or motor-driven car in which insured is riding or driving,” did not include a motorcycle, and that the same was not a motor-driven car within the meaning and terms of the policy. The court said: “The policy uses the phrases ‘horse-drawn vehicle’ and ‘motor-driven car.’ A motorcycle is a vehicle. If motorcycles were intended to be included in the policy, the draftsman would have used the word ‘motor-driven vehicle.’ After using the word ‘vehicle’ in the phrase ‘horse drawn vehicle,’1 it would seem that the use of the phrase ‘motor-driven car’ immediately afterward is significant and indicates a purpose to exclude such a vehicle as a-motorcycle from the provisions of the policy. One riding on a motorcycle is more exposed to accident than one riding in' a motor-driven ear. A car stands upright on four wheels whether in operation or stopped. It is protected by bumpers in front and rear. It has a body in which the passengers sit which protects them in some measure from the perils of the highway. One riding on a motorcycle cannot keep it in equilibrium when not in operation. When stopped, he must get off or place his feet, or one foot upon the ground. A motorcycle has not front or rear protection in the form of fenders or bumpers. It has no body for the protection of the rider. A rider is, therefore more exposed to dangers incident to congested traffic. For these reasons, which makes the risk of riding a motorcycle greater than riding in a motor-driven car, we think the rider of a motorcycle was intentionally excluded from the provisions of the policy by the use of the language employed.
“The use of the preposition ‘in’ in the clause of the policy reading ‘ or motor-driven car in which insured is riding or driving,’ is also significant. One riding on a motorcycle is not referred to as riding ‘in’ a motorcycle, but ‘on’ a motorcycle. A passenger or one driving a car is not usually referred to as riding ‘on’ a car but ‘in’ a car. Where a policy uses the words ‘or motor-driven car in which the insured is riding or driving, ’ it is for the purpose of limiting the insurer’s liability. The reason is. the one we have indicated, the greater safety of the insured ‘in’ a car. This distinction has been recognized in a number of cases.”
To the same effect is the holding in the case of Laporte v. North Ame. Acc. Ins. Co., 161 La. 933, 109 So. 767, 48 A. L. R. 1086, and Colyer v. No. Ame. Acc. Ins. Co., 230 N. Y. S. 473, 132 Misc. Rep. 701.
The question here involved is comparatively new, and the above are all the cases which the industry of counsel or our own investigation have discovered. The reasoning»of these cases and conclusion reached appear to us to be sound and in conformity with the common knowledge that when an automobile is spoken of we do not mean a motorcycle. The text from Berry on Auto mobiles, (2d ed.) p. 5: “Unless expressly excluded, the motorcycle falls within the definition of the automobile as the terms has been used by the various State Legislatures, and also within the general definition heretofore given” refers to regulatory or taxation statutes as we have before stated, and not to private contracts. We, therefore, conclude that the judgment of the trial court in holding- that the accident to the insured did not come within the terms of the policy, and that the appellant could not recover, is correct, and it is affirmed. | [
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Dunaway, J.
This cause arose as a suit to enjoin a continuing trespass, brought by appellee Michel as sole heir-at-law of Edward Michel, who died intestate on September 26, 1948. Appellants, defendants below, are the widow and heirs-at-law of Floyd Phillips, who died intestate on October 26, 1942.
The complaint alleged that Edward Michel had acquired title to the property in litigation, consisting of approximately nine acres of land, by purchase in 1917; and that he had been in actual, open, continuous, exclu sive possession of all said property from 1917 until the time of his death in 1948. It was further alleged that defendants had within the past year been guilty of trespass in that they had cut and removed timber from the lands; removed some of the roofing from a certain outbuilding; and had turned cattle and other livestock in upon said lands. Defendants were doing this under some claim of right or interest in the lands, it was alleged, though they had no right or interest in same.
Defendants answered, claiming ownership by adverse possession under a tax deed from the State of Arkansas, alleging that they had held possession of said lands since acquisition of the tax title by Floyd Phillips in 1932 and had paid the taxes on the property for more than ten years. Defendants prayed that their title be quieted in said property.
This appeal is from a decree quieting title in appellee Michel and granting the injunction prayed for against further trespass by appellants.
The tax deed relied upon by appellants was issued to Floyd Phillips on August 1, 1932, by the State Land Commissioner. The lands were described in the deed as “Part NEy4 NW% NW% Sec. 26, Twp. 9 S., Range 30 W., 9.00 acres”, and it was shown that the forfeiture to the State was for non-payment of taxes for the year 1924. It is conceded that the tax forfeiture and deed were void not only because of the insufficiency of the description, Cotton v. White, 131 Ark. 273, 199 S. W. 116, but also because the 1924 taxes on the property had in fact been paid.
Appellants argue, however, that they acquired title by more than seven years adverse possession. This they sought to prove by the testimony of Loel Phillips, one of the appellants, and Bob Bizzel. Their testimony was that in February, 1933, they went with Floyd Phillips to see Edward Michel. Floyd Phillips told Michel of his purchase of the tax deed to the property where Michel was then living, and where it is admitted he continued to live until his death in 1948.
Loel Phillips testified that his father told Michel that he did not want to “ran him out of his home”, bat would give him a deed to the property if Michel would repay the elder Phillips the money he had paid to the State. When Michel told Phillips he was not in a financial position to do this, Phillips told him he could continue to live there the rest of his life, but that he, Phillips, was going to continue paying taxes on the property. The balance of Loel Phillips’ testimony was to the effect that Edward Michel did continue to live on the property until he died under this “agreement” with the elder Phillips. At the time of the visit to Michel in 1933 Loel Phillips was eleven years of age.
Bizzell testified that Michel said “I ain’t going to be out a dime” or something to that effect when Phillips’ offer was made. Bizzell further testified as follows: “Edward just made the remark that a home was what he wanted and if he got a home, that was all he wanted. And Floyd said, ‘Yes, you have got a home. You can stay here the rest of your life’, and that is about all the discussion.”
It was further shown at the trial that from 1933 on the house in which Michel lived, the outbuildings, and fences fell into an increasing state of dilapidation. No taxes were paid thereafter by Michel; taxes from 1933 through 1949 on “Pt. NE NW NW, Section 26, Township 9 South, Range 30 West, containing 9 acres” were paid by Floyd Phillips or Loel Phillips and the Floyd Phillips Estate.
Appellants contend that the testimony above-outlined established an attornment by Edward Michel to Floyd Phillips in 1933, and that thereafter Phillips held possession of the nine-acre tract through Michel as his tenant. In arguing that seven years adverse possession after attornment ripened into title in Phillips, appellants rely on the cases of Wheeler v. Foote, 80 Ark. 435, 97 S. W. 447 and Johnson v. Elder, 92 Ark. 30, 121 S. W. 1066, as authority for their position. The cases are distinguishable on the facts.
Wheeler v. Foote, supra, involved a suit between two parties, both of whom claimed title to a tract of land by limitations. The prevailing party, a Mrs. Foote, claimed title by actual adverse possession of part of the tract under color of title to the whole. In that case, a third partjr who owned land adjoining the disputed tract had occupied a part of the land in controversy under a mistake as to the boundary. When informed of his mistake, the occupant agreed to continue his possession as tenant of Mrs. Foote. This court held that in these circumstances Mrs. Foote established her title by adverse possession through actual possession by her tenant.
Likewise, in Johnson v. Elder, supra, there was a third party occupying a part of the lands there in controversy who agreed to continue his possession as the tenant of one of the claimants to the land, whose alleged ownership was based upon a void tax deed. There is language in the original opinion in the Johnson case to the effect that one in possession of land under a claim of ownership may attorn to another claiming superior title and thereafter occupy the lands merely as tenant of the latter. On rehearing however, the actual decision in the case considerably modified the force of this language. Upon it being shown that prior to the attornment the alleged tenant had himself acquired title by adverse possession to the part of the land he occupied, the court held the agreement to attorn void for want of consideration. The holder of the void tax deed therefore failed to prove his title by adverse possession since he was claiming possession through the third party as tenant and this court held that there was no tenancy.
Under the holding in the Johnson case, the alleged attornment in the case at bar would have been void for want of consideration even if a definite agreement to attorn had been made. We do not think, however, that the proof was sufficient to establish such an agreement by Edward Michel.
It is conceded that the lands in controversy were improved and enclosed; and actually occupied by Edward Michel. The statutes providing that payment of taxes on unimproved lands creates a presumption of possession (Ark. Stats. 1947, § 37-102 — seven years consecutive payment of taxes under color of title) or of color of title (Ark. Stats. 1947, § 37-103 — fifteen years consecutive payment of taxes) have no application. Wheeler v. Foote, supra; Schmeltzer v. Scheid, 203 Ark. 274, 157 S. W. 2d 193. In addition the tax payments by the appellants were made under the same insufficient description which rendered their tax deed void.
The decree is affirmed. | [
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George Bose Smith, J.
This action was brought by the city of Pine Bluff to enjoin Alvis Hankins from constructing a concrete curbing that is said to encroach upon the city streets. The city did not obtain a temporary injunction when the suit was filed, and while the case was pending Hankins completed the construction of the curbing. This appeal is from a decree by which the chancellor found that an encroachment exists and ordered its removal.
The curbing in question is situated at the intersection of Twentieth and Main streets. Hankins’ lot is on the southeast corner of this intersection. As originally platted Main street had an offset or “jog” at this intersection, so that a person traveling north on Main would have to turn to his right upon reaching Twentieth and go about ninety feet east on Twentieth before turning north to continue on Main. The principal question in this case is whether in 1946 Hankins dedicated a public right-of-way across the corner of his lot as a means of partly straightening the course of Main street.
In 1946 this lot was unimproved and had not yet been taken into the city limits. Prior to that time the county road graders had gradually shifted the roadbed onto Hankins’ property as a means of alleviating the sharp turn at the intersection. Only two witnesses testified about the 1946 dedication relied on by the city. The county judge said that he talked to Hankins about taking some of his property to flatten the curve still more than had already been done. According to this witness Han-kins said that the proposal was all right with him, and the county then removed some trees and graded the street to the agreed line. The street has been used by the public ever since.
Hankins ’ own testimony is not materially at variance with that of the county judge. He concedes that he agreed to let the road cross his property. “At that time it was grown up in weeds and I had no objection to their using it.” He was asked if by the agreement the road was to remain only as long as he did not want to improve the property, and he answered, “I don’t believe I said anything like that.”
On this testimony the chancellor correctly held that there had been a dedication of the road, which inured to the city when it annexed this territory. The two essential elements of a dedication are the owner’s appropriation of the property to the intended use and its acceptance by the public. No specific duration of the public user is required to complete the dedication. Ayers v. State, 59 Ark. 26, 26 S. W. 19. Nor need the dedication be evidenced by a deed. Conner v. Heaton, 205 Ark. 269, 168 S. W. 2d 399. It is quite possible that Hankins did not realize that the effect of his agreement was to give the public a permanent easement across his property, but there was nothing in his conduct to put the county on notice that his offer was in any way conditional. On the contrary, the county judge testified that the county would not have accepted the right-of-way had such a condition been attached.
Hankins also contends that the city is estopped to question the location of the curbing, for the reason that the city engineer approved it. The city, however, brought suit soon after construction was begun, and in any event the city engineer’s erroneous approval could not create &n estoppel. It is not suggested that this officer is au thorized to give away part of the public thoroughfare, and we have often held that a public officer cannot bind the State or its subdivisions beyond the extent of his actual authority. “All who deal with a public agent must at their peril inquire into his real power to bind his principal.” Woodward v. Campbell, 39 Art. 580; McConnell v. Arle. Briol & Mfg. Co., 70 Ark. 568, 69 S. W. 559.
We think, however, that the decree should be modified in one respect. The chancellor found that the city’s easement extends to a specified line as shown on a surveyor’s plat that was introduced in evidence. The county judge admitted that through the years there has been a gradual encroachment onto Hankins’ property, and the latter testified positively that the line he agreed to in 1946 was three feet farther out than the line now claimed by the city. Hankins’ testimony was given with candor and honesty, and we see no reason to doubt his statement that the street has been shifted three feet more since 1946.
The decree is modified to narrow the city’s easement by three feet at its point of deepest penetration upon the appellant’s lot. With this modification the decree is affirmed, and, as the title to real estate is involved, the cause is remanded for the entry of a decree in accordance with this opinion. | [
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Ed. F. McFaddin, Justice.
This is a suit seeking- to cancel, for failure of consideration, a deed which appellant had executed to appellee.
On February 10, 1944, George W. Euin and wife (hereinafter called appellants) executed and delivered a deed of their 70-acre farm to their son and daughter-in-law, Jesse and Archie Euin, the consideration being:
“. . . the care, keep, namely a comfortable home for the remainder of our lives, with food, medical care, clothing and a comfortable place to live furnished,
On September 10, 1945, the son, Jesse Euin, died; and the daughter-in-law, Archie Euin, continued to attempt to perform the consideration of the said deed.
In the Fall of 1948, Archie Euin began “dating” Mr. Faubus. This was displeasing to her parents-in-law, and two quarrels ensued in December; but the daughter-in-law continued to live with the Euins until January 7, 1949, when she married Mr. Faubus and moved to his home about twenty miles away. Before leaving the Euin homestead, the daughter-in-law, Archie Euin Faubus, arranged to have Mr. and Mrs. Self (the Euins’ daughter and son-in-law) move to the Euin home. On February 2, 1949, appellants filed this suit, claiming that Archie Euin Faubus had failed to provide the consideration stated in the deed, that is, the food, medical care and clothing.
Mrs. Archie Euin Faubus (appellee), in defending the suit, claimed that she was faithfully fulfilling the consideration of the deed when she was driven from the home by threats made against her by the Euins. The learned Chancellor, after hearing the evidence, dismissed the complaint for want of equity and appellants seek to reverse that decree.
“Support deeds” are recognized in this State. In Fisher v. Sellers, 214 Ark. 635, 217 S. W. 2d 331, we discussed such deeds:
. . Our cases hold that when a deed is executed in consideration of future support and maintenance — -as here — then, if the grantee fails to fulfill the provisions of the deed, the grantor may sue at law for damages, or may sue in equity to cancel the deed for failure of consideration. Salyers v. Smith, 67 Ark. 526, 55 S. W. 936; Whittaker v. Trammel, 86 Ark. 251, 110 S. W. 1041; Priest v. Murphy, 103 Ark. 464, 149 S. W. 98; and Goodwin v. Tyson, 167 Ark. 396, 268 S. W. 15.”
The question before ns is whether the appellee, Archie Enin Fanbns, has .continued to perform the consideration of the said deed by furnishing “food, medical care, clothing” to the appellants. We find that she has not; and so the deed should be cancelled for failure of consideration. The evidence shows that ever since the death of Jesse Euin, appellee has been unable to furnish food, medical care, and clothing for her parents-in-law; and they have all the time had a potential cause of action to cancel the deed for failure of the grantee to furnish the food, medical care, and clothing required by the deed.
The appellee made the decision — which she had a right to make — whether she would seek her happiness by remarriage, or whether she would remain with her parents-in-law and continue to try to save the farm for herself by doing all she could to keep them from declaring the deed forfeited for failure of consideration. She was a comparatively young woman, and chose to remarry; but her second husband is without financial means, and there is no source from which Mr. and Mrs. Faubus can supply the “food, medical care, clothing” for Mr. and Mrs. Euin. Even if the Faubuses lived in the home with the Eiiins, the problem of “food, medical care, clothing” would be unsolved. So there has been a failure of consideration of the deed; and the Euins are entitled to the relief sought. Nothing would be gained by remanding the cause for further developments, as we did in the case of Fisher v. Sellers, supra.
The decree is reversed and the cause remanded, with directions to enter a decree granting the appellants’ prayed relief.
Justices Leelar and Dunaway dissent.
In the course of his oral opinion, the learned Chancellor said:
“I sometimes think it would be well if it were illegal to make such a deal as this. . . . The Supreme Court reports of this State are full of these cases and I suspect there is not one in ten that is carried out fully, or can be carried out fully. . . . This is a case in which it is hard to tell what to do, because the woman’s husband died. He couldn’t carry it out. The deed was made to them as an estate by the entirety, and it looks like she did the best she could. Differences came up and she felt like she had to leave. She is still willing to go back. She means by that — I don’t believe it was brought out exactly in the testimony. — but I think she is willing to take her husband back there with her and live on the place and do her best. ... It would be very harsh for me to cancel the deed and say, ‘No, you haven’t fulfilled your contract’ — and the court isn’t going to do that. The complaint will be dismissed for want of equity.” | [
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Kirby, J.,
(after stating the facts). Appellants insist that the verdict is not supported by the testimony, while appellees contend that the verdict is demonstrably inaccurate, and that they are entitled to a judgment, notwithstanding the verdict, for the full amount of their claim.
It may be said that the testimony is in conflict, and certainly as to whether there was a new oral contract made for the last work and a final settlement for the first work done under the written contract, and same is sufficient to have supported a verdict for either party, the plaintiffs or defendants, under their contentions.
It is true that the verdict is not consistent, but that is no ground for reversal thereof in this court, it being supported by sufficient testimony. The appellants contend that there was only one contract, and that the final estimate of all work done, both at the first stations and after the removal north to the other stations, under the contract amounted to a certain designated sum, and that the payments made were more than the amount thereof —an overpayment, in fact, of a substantial amount. On the other hand, according to appellees’ contention, they were only paid in full for the amount of work first done, and they insist appellants were due them more than a $1,000 for the work done under the oral contract after the removal from the first stations and the completion of that contract and final payment made, and that the jury, having found in their favor, entitles them to a judgment, notwithstanding the verdict, for the whole amount.
There could be no judgment notwithstanding the verdict upon this state of the case within the meaning of the statute {% 6273, Cl & M. Digest), and the rules of this court thereon. Fulbright v. Phipps, 176 Ark. 356, 3 S. W. (2d) 49 ; Moore v. Rogers Wholesale Gro. Co., 177 Ark. 993, 8 S. W. (2d) 457 ; Oil Field's Corp. v. Cubage, 180 Ark. 1018, 24 S. W. (2d) 328.
The judgment is affirmed. | [
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LARRY D. VAUGHT, Chief Judge.
11 Christopher Gorman and Arnette Gor-man appeal from orders dismissing their claims against appellees Clif Gilliam and Norma Farnham, both d/b/a APCS, Inc., and Arkansas Pest Control Services (APCS); Western Surety Company; and Stephen Rice and Mitzi Wells. We affirm the dismissal as to Rice and Wells, but modify that order to be without prejudice; reverse the dismissal of the other claims; and remand.
Appellants bought real property in North Little Rock from Rice and Wells in December 2005. On August 27, 2008, appellants sued appellees, alleging that they had bought the property in rebanee on a November 2005 report, contained in a termite-service agreement prepared by bAPCS, which indicated no termite activity at the home, and that, by summer 2007, the home was substantially destroyed by termites. Appellants alleged that Gilliam and Farnham were both licensed by the state plant board and in a “defacto partnership” doing business under the names APCS, Inc., and d/b/a Arkansas Pest Control Services. Appellants asserted that, in July 2005, employees of APCS had inspected the home; found termite activity; and reported that information to Rice’s wife, Tammy Rice. Appellants attached copies of the termite report and the service agreement to the complaint. The July report, which had a heading of “APCS, Inc., Arkansas Pest Control Services,” listed “Tammy Rice” as the owner and stated: “Termites found on crawl space door & hollow block see area marked below [in a graph]” and “8-16-05 Clif gave info to Tammy.” The service agreement stated: “No visible evidence of wood destroying insects was observed.” It provided that “APCS Termite & Pest Control, Inc. will make any necessary re-treat, will re-inspect and repair damage that may occur for a period of one year” and indicated that appellants could renew it at the end of one year by paying $100. Clif Gilliam’s name, as “Company Representative,” and-license number were typed on the agreement, which Norma Farnham signed as “Company Manager.” Wells and Rice signed directly under the statement that “all information regarding W.D.I. infestation, damage, repair, and treatment history has been disclosed to the buyer.”
Appellants claimed that appellees Rice and Wells knew or should have known, because of the delivery of the July report to Tammy Rice, that the home was infested with termites; that they had a duty to disclose the fact that the November report was false, but failed to do so; that lathis failure to disclose the termite infestation was a material misrepresentation of fact; and that, had appellants known of the termite infestation, they would not have purchased the home. Appellants asked for rescission and restitution or damages for breach of contract from all defendants.
Western Surety moved to dismiss on the grounds that it had no contractual relationship with appellants; that it had issued the surety bond to APCS, Inc., binding it to the Arkansas State Plant Board; and that, even if the bond was in appellants’ favor, appellants had not established any legal right to recover from it at that time. Western Surety attached a copy of the bond it issued to APCS, Inc.
Gilliam and Farnham also moved to dismiss. They asserted that they both were employees of APCS (Gilliam was president); that APCS, Inc., was a valid Arkansas corporation in good standing, not a partnership, as shown by the attached report from the secretary of state’s office; that appellants’ dealings were with the corporation; and that the signer of the service agreement did so in the capacity of an employee. The secretary of state’s information, however, provided that “Arkansas Pest Control Supplies, Inc.” was in good standing; that it had no fictitious names; and that Gilliam was its registered agent and president.
Rice and Wells also moved to dismiss under Arkansas Rules of Civil Procedure 12(b)(6) and 10(d) (which provides that a copy of any written instrument upon which a claim is based shall be attached to the pleading). They argued that appellants failed to state a cause of action for fraudulent misrepresentation, noting that the real-estate contract was not attached to the Rcomplaint, as required by Rule 10(d). Thus, they argued, appellants’ complaint failed to allege that Rice and Wells made any representation to appellants about termite activity, and that, without the real estate contract, there was no basis for appellants’ allegation that Rice and Wells had a duty to investigate or make any representation at all. They added that, even if they had such a duty, the complaint contained no allegation that they knew that the November report was false. Rice and Wells also argued that there were no allegations that they intended to induce appellants to act or that appellants justifiably relied on the purported representation.
The circuit court entered an order dismissing Western Surety, Rice, and Wells at 3:47 p.m. on October 31, 2008, stating: “Further, [appellants] have failed to allege facts sufficient to support a finding that [Rice and Wells] knew the representation was false or that [appellees] induced [appellants] to act.” The court granted the motion to dismiss without stating whether it was with or without prejudice.
At 4:14 p.m. on October 31, 2008, appellants filed an amended complaint, which contained additional allegations against Rice and Wells, and attached a copy of the real estate contract. They moved to set aside the October 31, 2008 order for several reasons, one of which was that the bond issued by Western Surety was for the protection of the general public, not the plant board; another reason was that the Tammy Rice mentioned in the July 2005 report as having personally received a copy of the report was Stephen Rice’s wife, and, therefore, her knowledge of the termite damage was imputed to him and Wells. Appellants noted that the order of dismissal was entered about half an hour before they filed their amended complaint. |sIn the alternative, they asked the court to modify the dismissal to be without prejudice so they could correct any defects in pleading.
Gilliam and Farnham filed an amended and substituted motion to dismiss, stating that they were employees (Gilliam as president) of Arkansas Pest Control Supplies, Inc., d/b/a APCS, Inc., which was a valid Arkansas corporation in good standing, as reflected by the attached information from the secretary of state’s office; that APCS, Inc., was not a partnership, and appellants’ complaint contained no allegations of evidence that it was; that all of appellants’ dealings were with the corporate entity, APCS, Inc., and that the documents were signed in the capacity of an employee of APCS, Inc.; that appellants had failed to name or serve the correct corporate entity; and that APCS, Inc., and Arkansas Pest Control Services were d/b/a names of Arkansas Pest Control Supplies, Inc., an authorized corporate entity in Arkansas. In response, appellants pointed out that Arkansas Pest Control Supplies, Inc., had no registered fictitious names and that there was no legal corporate entity named APCS, Inc.
On January 12, 2009, the circuit court denied the motion to set aside. The same day, it granted the amended motion to dismiss, stating: “The Court finds that [appellees Gilliam and Farnham] are employees of Arkansas Pest Control Supplies, Inc. ...” Appellants then pursued this appeal.
In determining whether to dismiss a complaint under Rule 12(b)(6), it is improper for the trial court to look beyond the complaint. Smith v. Eisen, 97 Ark.App. 130, 138-89, 245 S.W.3d 160, 168 (2006). In order to properly dismiss the complaint, the trial court must find that |Rthe complaining party either (1) failed to state general facts upon which relief could have been granted or (2) failed to include specific facts pertaining to one or more of the elements of one of his claims, after accepting all facts contained in the complaint as true and in the light most favorable to the nonmoving party. Eisen, 97 Ark.App. at 138-39, 245 S.W.3d at 168. Pleadings are sufficient if they advise a party of his obligations and allege a breach of them. Id., 245 S.W.3d at 168.
In reviewing the circuit court’s decision on a motion to dismiss under Rule 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Eisen, 97 Ark.App. at 138, 245 S.W.3d at 168. In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Id., 245 S.W.3d at 168. However, Arkansas law requires fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id, 245 S.W.3d at 168. According to Ark. R. Civ. P. 8(a)(1), a pleading that sets forth a claim for relief shall contain a statement in ordinary and concise language of facts showing that the pleader is entitled to relief. Id., 245 S.W.3d at 168. Rules 8(a)(1) and 12(b)(6) must be read together in testing the sufficiency of a complaint. Id., 245 S.W.3d at 168. We look to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled. Id, 245 S.W.3d at 168.
In their first point, appellants argue that the circuit court erred in dismissing their claim for fraud against Rice and Wells. The elements of fraud are (1) a false representation of a ^material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance on the representation; and (5) damage suffered as a result of the reliance. Joplin v. Joplin, 88 Ark.App. 190, 196 S.W.3d 496 (2004).
The circuit court was correct in dismissing appellants’ claim for fraud against Rice and Wells, because appellants did not allege that they made any misrepresentation of fact. Although appellants base their claim for actual fraud on nondisclosure of the termite problem, nondisclosure is not enough to support a claim for actual fraud. It may provide a basis for a claim of constructive fraud, but appellants did not state facts which, if true, would support a claim for constructive fraud. Constructive fraud has been defined as a breach of a legal or equitable duty, which, irrespective of the moral guilt of the fraud feasor, the law declares to be fraudulent because of its tendency to deceive others. Beatty v. Haggard, 87 Ark. App. 75, 184 S.W.3d 479 (2004). Generally, however, liability for a nondisclosure may be found only in special circumstances, where there is a duty to communicate the purportedly concealed material fact. See Downum v. Downum, 101 Ark. App. 243, 274 S.W.3d 349 (2008). Failure to speak is the equivalent of fraudulent concealment only in circumstances when a duty to speak arises, such as those involving a confidential relationship, and where one party knows another is relying on misinformation to his detriment. Ward v. Worthen Bank & Trust Co., N.A., 284 Ark. 355, 681 S.W.2d 365 (1984). Appellants did not attach the real-estate contract to their complaint; without | sit, it is impossible to determine whether Rice and Wells made any representations about termites, or whether they had any duty to disclose the July 2005 report.
The dismissal, however, should have been without prejudice. Arkansas Rule of Civil Procedure 12(j) provides that a trial court is to notify the attorneys of any action taken, and “if appropriate, the court will designate a certain number of days in which a party is to be given to plead further.” Although appellants asked for permission to plead further, they were not given the chance to do so. Therefore, we affirm the order of dismissal, but modify it to be without prejudice to plead further, and remand to the circuit court. Swink v. Ernst & Young, 322 Ark. 417, 908 S.W.2d 660 (1995).
In their next argument, appellants contend that the surety bond was intended to protect members of the public from violations of the law by licensees and, therefore, they could sue Western Surety. We agree. The presumption is that parties contract only for themselves and, thus, a contract will not be construed as having been made for the benefit of a third party unless it clearly appears that such was the intention of the parties. Eisner v. Farmers Ins. Group, Inc., 364 Ark. 393, 220 S.W.3d 633 (2005). In order for a stranger to a contract to sue upon it, there must be (1) an intent by the promisee to secure some benefit to the third party; and (2) some privity between the two — the promis-ee and the party to be benefitted — and some obligation or duty owing from the former to the latter that would give him a legal or equitable claim to the benefit of the promise, or an equivalent, from him personally. Collins v. Cunningham, 71 Ark.App. 297, 29 S.W.3d 764 (2000). Furthermore, it is not necessary that the person be named in the contract; 19if he is otherwise sufficiently described or designated, he may be one of a class of persons if the class is sufficiently described or des ignated. Elsner, 364 Ark. at 395, 220 S.W.3d at 635.
Arkansas Code Annotated section 17-37-210(a) (Repl.2001), which was in effect when appellants sued appellees, provided that an applicant for a termite license must furnish a surety bond. It also stated:
(3)(A) Any bond required by this chapter shall be in favor of the State of Arkansas for the benefit of any person damaged as the result of a violation of this chapter by any operator licensed under this chapter and for the benefit of any person who, after entering into a contract with the licensee, is damaged by the failure of the licensee to properly perform the contract.
(B) Any person claiming against the bond may maintain an action at law against the licensee and the surety.
Western Surety does not dispute that its bond covered the writers of the termite reports involved in this lawsuit. Although its contract was with APCS, Inc., appellants were members of the class of persons that it was intended to benefit. Thus, under the terms of this statute, appellants could maintain an action against the surety. However, Western Surety issued the bond to APCS, Inc., which is an unregistered fictitious name. Although APCS, Inc., is a named defendant, it does not legally exist. Arkansas Pest Control Supplies, Inc., legally exists, but is not a named party. It will be necessary to further develop the facts as to the identity of the proper principal on the bond, and appellants may need to amend their complaint accordingly. With these considerations, we reverse and remand as to Western Surety.
In their third point, appellants argue that the circuit court erred in dismissing their claim against Gilliam and Farnham because they are liable (in their individual capacities) for any 110recovery to which appellants are entitled. Specifically, appellants argue that — contrary to the court’s conclusion — though Gilliam and Farnham may have been employees of Arkansas Pest Control Supplies, Inc., this does not support a conclusion that they signed the relevant documents on behalf of that corporation because these documents referenced a fictitious name that was not registered with the secretary of state.
Appellants correctly point out that Arkansas Code Annotated section 4-27-404 (Repl.2001) provides that no corporation shall conduct any business in this state under a fictitious name unless it first files certain information with the secretary of state and, in the case of a domestic corporation, with the county clerk. This statute provides that a corporation cannot enforce its rights under a contract until it complies with the statute’s requirements. Therefore, appellants reason that when the alleged “representative capacity” is that of an employee of an Arkansas company that “does not exist” (as a legal corporate entity) the signatures are made in an individual capacity, or in the capacity of a de facto partnership.
Indeed, the document at issue in this case does not bear the corporate name— Arkansas Pest Control Supplies, Inc., and the corporate offices (Gilliam as president and Farnham as secretary) are not reflected on the signed termite reports. Instead, the unregistered, fictitious names APCS and Arkansas Pest Control Services are referenced in the writing. To that extent, appellants have stated a claim against Gilliam and Farnham. The viability of the claim — specifically whether failure to properly register and the question as to whether they were individually doing business or signing only in representative capacities cannot be determined 11¶until the facts are further developed. We therefore reverse and remand as to Gilliam and Farnham.
Affirmed as modified in part; reversed in part; and remanded.
PITTMAN and ROBBINS, JJ., agree. | [
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ROBERT J. GLADWIN, Judge.
11 Appellant William Dale Morrison appeals his conviction by a Crawford County Circuit Court jury on a charge of failure to register as a sex offender — or failure to report a change of address, pursuant to Arkansas Code Annotated section 12-12-904 (Supp.2006), a Class C felony. He was sentenced to twenty years’ imprisonment in the Arkansas Department of Correction. On appeal, appellant challenges the sufficiency of the evidence to support the conviction and also argues that the trial court erred in denying his motion for a mistrial based upon the prosecutor’s comments in closing argument about appellant’s truthfulness. We affirm.
Facts
|2On January 23, 2005, appellant completed a sex-offender-registration form that listed his address as 3406 Flat Rock Court. Updated forms were to be hand-delivered to the Van Burén Police Department every six months, but appellant failed to consistently abide by that requirement. Appellant met with Detective Steve Weaver in early August 2006, at which time appellant informed him that he was planning to move to 1210 Fayetteville Road. Detective Weaver informed appellant that he could not do so because the residence was within 2000 feet of a school. Appellant asked him what to do about the deposit he had already put down on the house, and Detective Weaver suggested that he contact the landlord to see if he could recover the money.
Subsequently, on September 18, 2006, Detective Weaver was driving down Highway 59 before 8:00 a.m., when he noticed appellant’s truck parked at the 1210 Fay-etteville Road address. Detective Weaver proceeded to appellant’s registered address at 3406 Flat Rock Court to investigate, where he discovered the grass grown up and the residence empty of furniture. He took photos of the 3406 Flat Rock Court residence, both external photos and internal photos through available windows. He checked with the water department, which confirmed that the water had been shut off at the 3406 Flat Rock Court residence and transferred to the 1210 Fay-etteville Road address. Detective Weaver returned to the 1210 Fayetteville Road residence, but was unable to make contact with anyone, either at that time or later in the day. He measured the distance from the 1210 Fayetteville Road residence to Park View Elementary School, located in the next block, and confirmed that the distance between the two was less than 2000 feet — 878 feet from the home to the school property line Rand 1258.8 feet from the center point of one building to the center point of the other building.
In researching the status of utilities at the two residences, Detective Weaver determined that the changes were initiated by Ms. Beverly Hughes. Ms. Hughes, appellant’s girlfriend, had lived with him at the 8406 Flat Rock Court residence along with their four-year-old daughter and Ms. Hughes’s nineteen-year-old son. Ms. Hughes had all the utilities in the 8406 Flat Rock Court residence in her name and had them transferred over to the 1210 Fayetteville Road residence.
Detective Weaver reported his findings, and appellant was arrested for failing to register as a sex offender — or failure to report a change of address, pursuant to Arkansas Code Annotated section 12-12-904, a Class C felony, and being a registered sex offender residing within 2000 feet of a school, pursuant to Arkansas Code Annotated section 5-14-128.
A jury trial was held on November 19, 2007. Detective Weaver was the sole witness for the State. After the State rested, appellant’s counsel moved for a directed verdict on both counts. The circuit court denied appellant’s motion, acknowledging that the evidence was more sufficient on Count I (failing to register) than Count II (living within 2000 feet of a school), but finding that there was enough to go to the jury on both counts.
Ms. Hughes testified for the defense, explaining that she had been living at 3406 Flat Rock Court with appellant, their daughter, and her son in August 2006. She admitted that they had put a deposit down on the 1210 Fayetteville Road property, but that only she moved there with the children. She acknowledged moving all the furniture out of the former | ¿residence and having the water shut off. She testified that appellant had visited the 1210 Fayetteville Road residence but did not live there, or even keep any clothes or tools there.
Appellant then testified on his own behalf. He corroborated Ms. Hughes’s testimony about the proposed move, change in plans, transfer of furniture and utilities, and overgrown state of the yard. He explained that he worked an average of nine to twelve hours a day as a concrete superintendent. He testified that he often spent the night out of town when he was working on concrete construction projects. He claims to have spent the night at the 3406 Flat Rock Court residence on the nights he was in town in August, September, and part of October, sleeping on a blow-up air mattress in the master bedroom. He acknowledged that the water had been shut off but stated the electricity was still functioning.
Upon resting, appellant’s counsel renewed the motion for directed verdict, and the motion was again denied. During closing arguments, appellant strenuously objected to comments by the prosecutor that appellant was lying to the jury. The objection was overruled, at which time appellant’s counsel moved for a mistrial. That motion was also denied. The jury returned a guilty verdict on Count I and a verdict of not guilty on Count II. This appeal follows.
I. Sufficiency of the Evidence Standard of Review
A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, ^direct or circumstantial. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id.
Weighing the evidence and assessing the credibility of the witnesses are matters for the fact-finder. Bush v. State, 90 Ark.App. 373, 206 S.W.3d 268 (2005). The jury is free to believe all or part of any witness’s testimony and resolves questions of conflicting testimony and inconsistent evidence. See Gikonyo v. State, 102 Ark.App. 223, 283 S.W.3d 631 (2008). Reconciling conflicts in the testimony and weighing the evidence are matters within the exclusive province of the jury. See Mitchem v. State, 96 Ark.App. 78, 238 S.W.3d 623 (2006).
Discussion
Appellant was convicted of violating the Sex Offender Registration Act of 1997, codified at Arkansas Code Annotated sections 12-12-901 to -923 (Repl.2009). Specifically, Arkansas Code Annotated section 12-12-904(a)(l)(A), as was in effect in August 2006, provided that “[a] person who fails to register, reregister, or who fails to report changes of address, employment, education, or training, or who refuses to cooperate with the assessment process as required under this subchapter shall be guilty of a Class C felony.” See Ark.Code Ann. § 12-12-904(a)(l)(A) (Supp.2006).
Appellant argues that the only evidence presented that he was not living at 3406 Flat Rock Court was the testimony of Detective Steve Weaver. Detective Weaver testified that he noticed appellant’s vehicle parked at 1210 Fayetteville Road on the morning of September | ñ18, 2006. He did not attempt to make contact with the appellant at that time, but instead went to his previously registered address at 3406 Flat Rock Court to see if the appellant was living there. On that date, he said the grass had not been maintained and that he could not see any furniture in the residence. He also testified that he checked with the water department, and the water service — which was in Beverly Hughes’s name — had been switched to 1210 Fayette-ville Road.
Appellant contends that Detective Weaver’s testimony was sufficiently rebutted by Ms. Hughes’s testimony, as well as his own. Ms. Hughes testified that she had lived at 3406 Flat Rock Court with appellant, their daughter, and her son. She explained that she moved to the 1210 Fayetteville Road residence during the fall of 2006, but that appellant did not move there with her. She testified that he kept neither clothes nor tools there. Ms. Hughes also testified that all the utilities were in her name only, but that the truck appellant drives is registered in both their names. She acknowledged that appellant had been to the new residence to visit his daughter, but denied that he ever lived there.
Appellant likewise denied his ever moving from the 3406 Flat Rock Court to the 1210 Fayetteville Road residence, but acknowledged that he had visited his daughter there. He described the nature of his construction work as a concrete superintendent, and that he frequently worked out of town and worked late hours, which prevented him from maintaining the yard. Appellant also testified that he slept on an air mattress in the mobile home when he was in town, and acknowledged that all the other furniture had been moved to Ms. Hughes’s home at 1210 Fayetteville Road.
^Appellant claims that even when viewed in the light most favorable to the State, this evidence is not of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. See Coggin, supra. Detective Weaver visited 3406 Flat Rock Court two or three times during the day on September 18, 2006. He never made contact with appellant at 1210 Fay-etteville Road. There is only circumstantial evidence that appellant’s vehicle was parked there on that morning, that the grass at the 3406 Flat Rock Court residence was overgrown that same day, the furniture had been moved out of the house, and the water had been shut off. No effort was made to contact the landlord at appellant’s registered residence to determine whether he was still leasing the residence, had turned in his keys, or had abandoned the premises. Appellant urges that this circumstantial evidence does not exclude every other reasonable hypothesis than that of guilt. See Jefferson v. State, 372 Ark. 307, 276 S.W.3d 214 (2008). Accordingly, he asks that we reverse the conviction based on insufficiency of the evidence.
The State relies on the evidence presented by Detective Weaver, including the photographs taken of the 3406 Flat Rock Court residence, and a document from the local water utility confirming that the water had been shut off by that time. The State submits that the only evidence that either appellant or Ms. Hughes offered on his behalf was the allegation that he continued to live at 3406 Flat Rock Court without furniture or water, while he allowed the grass to become overgrown. The State maintains that the evidence supported the conclusion of the jury, without reliance on speculation or conjecture, that appellant failed to report a change of address as required by Arkansas Code Annotated section 12-12-904. See Also Sales v. State, 374 Ark. 222, 289 S.W.3d 423 (2008). We agree that the trial court did not err in denying appellant’s motion for a directed verdict on this count.
With respect to appellant’s argument regarding the insufficiency of the evidence supporting that he had moved to 1210 Fayetteville Road, within 2000 feet of a school in violation of Arkansas Code Annotated section 5-14-128, the State submits that the argument is irrelevant to this appeal. The conclusion that appellant moved out of the 3406 Flat Rock Court residence without submitting the mandated report does not require any specific further conclusion as to where he moved. This evidence speaks to the second charge, of which appellant was acquitted. Accordingly, we decline to address this argument in more detail. We affirm on this point.
II. Denial of Motion for Mistrial Standard of Review
Our supreme court has said the following regarding our review of the denial of a mistrial motion:
A mistrial is an extreme and drastic remedy that will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing with the trial or when the fundamental fairness of the trial has been manifestly affected. The circuit court has wide discretion in granting or denying a mistrial motion, and, absent an abuse of that discretion, the circuit court’s decision will not be disturbed on appeal.
Thessing v. State, 365 Ark. 384, 394, 230 S.W.3d 526, 534 (2006) (citations omitted). Further, our supreme court has held that an objection to remarks made during closing argument is sufficient to preserve the argument for review when the objection is clearly overruled by the trial court. See Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999). No request for admonishment is necessary. Id.
[cdiscussion
Appellant objected to certain prosecu-torial comments made during the State’s closing argument that challenged the veracity of both his and Ms. Hughes’s testimony. The trial court overruled appellant’s objection and also denied his subsequent request for a mistrial.
Appellant acknowledges a lack of appellate decisions dealing with prosecuting attorneys’ improper comments on the veracity of a witness or defendant. He cites Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999) (finding that prosecutor’s comment that appellant was guilty not grounds for mistrial; counsel failed to ask for a curative instruction after objection); Leach v. State, 38 Ark.App. 117, 831 S.W.2d 615 (1992) (holding that while not reversible error, a prosecutor’s vouching for a witness was improper and should be avoided on retrial); and Harrison v. State, 276 Ark. 469, 637 S.W.2d 549 (1982) (finding no manifest abuse of discretion in refusal to grant a mistrial based upon prosecutor’s improper comments on the veracity of a witness, because the remark did not seem calculated and the trial judge promptly admonished the jury to disregard the remark); however, the State correctly points out that none of the cited cases resulted in a reversal of a trial court’s denial of a motion for mistrial based on comments on the veracity of the witness or defendant.
The State counters, citing one particularly apposite case, Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994), in which the prosecutor, in closing argument, labeled the defendant’s version of the victim’s death as “hogwash” and added that the defendant had lied to save his life. In affirming the trial court’s denial of the motion for a mistrial, our supreme court stated, “[w]e know of no reason why a prosecutor should be foreclosed from contesting part of a | ^defendant’s statement which the prosecutor believes to be untrue.” Id. at 169, 871 S.W.2d at 565.
Appellant relies on persuasive authority from several cases from other jurisdictions to support his proposition that a prosecutor’s assertion that a criminal defendant has lied or is a liar is improper and justifies reversal. See State v. Pabst, 268 Kan. 501, 996 P.2d 321 (2000); State v. Graves, 668 N.W.2d 860 (Iowa 2003). Here, appellant submits that it was improper for the prosecutor to tell the jury that he was lying. As the prosecutor was stating a personal opinion, appellant claims that the trial court abused its discretion in refusing to grant appellant’s request for a mistrial. He maintains that his testimony did not indicate that he was lying, simply that there was conflicting evidence between his testimony and that of Detective Weaver. He urges that the prosecutor’s comments were tantamount to placing his personal opinion on appellant’s credibility into evidence. He argues that, as a quasi-judicial officer, a prosecutor should be precluded from stating a personal opinion as to the credibility of a witness or defendant.
Appellant cites Williams v. State, 259 Ark. 667, 535 S.W.2d 842 (1976), for the proposition that closing arguments must be confined to the questions in issue, the evidence introduced, and all reasonable inferences and deductions that can be drawn therefrom. Whenever trial counsel argues a matter that is beyond the record and states facts or makes assertions not supported by any evidence that are prejudicial to the opposite party, there is clearly error. See id. He urges that the maximum twenty-year sentence as a habitual offender he received shows that he was prejudiced by the improper comments by the prosecutor.
| nAlthough he relies heavily on Graves, supra, we note that it does not simply forbid all prosecutorial assertions that a defendant is lying. The court in Graves specified the following questions that must be answered to determine whether a prosecutor’s remarks are proper:
(1) Could one legitimately infer from the evidence that the defendant lied?
(2) Were the prosecutor’s statements that the defendant lied conveyed to the jury as the prosecutor’s personal opinion of the defendant’s credibility, or was such argument related to specific evidence that tended to show the defendant had been untruthful?
(3) Was the argument made in a professional manner, or did it unfairly disparage the defendant and tend to cause the jury to decide the case based on emotion rather than upon a dispassionate review of the evidence?
Id. at 874-75. The State urges that even if we were to adopt the analysis set out by appellant, we would need to review the prosecutor’s statements in light of the above-referenced factors.
We hold that the evidence discussed in Section I herein is sufficient to support a legitimate inference that appellant lied when he claimed to continue to live at 3406 Flat Rock Court. The prosecutor’s statements were made in the context of pointing out inconsistencies within appellant’s testimony, as well as between appellant’s testimony and the other evidence presented to the trial court. Given that appellant testified that he was living at 3406 Flat Rock Court in August 2006, and the State charged him with having moved from that residence without filing the required notice, it was not unfair for the prosecutor to challenge the veracity of that part of appellant’s testimony. We hold that the trial court did not abuse its discretion by denying appellant’s motion for a mistrial, and affirm on this point as well.
Affirmed.
VAUGHT, C.J., and MARSHALL, J., agree.
. He was also originally charged with being a registered sex offender residing within 2000 feet of a school, pursuant to Arkansas Code Annotated section 5-14-128 (Repl.2006), but was acquitted of that charge. | [
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COURTNEY HUDSON HENRY, Judge.
|,A jury in Ashley County found appellant Steve Brian Stewart guilty of three counts of perjury, for which he received cumulative sentences totaling twenty years in prison. For reversal, appellant argues that the trial court erred (1) by admitting into evidence the transcript of the hearing at which he entered a guilty plea in federal court; (2) by denying his motion for a directed verdict; and (3) by denying his motion to enforce a plea agreement. This case returns to us after rebriefing to cure deficiencies in the abstract and addendum. Stewart v. State, 2010 Ark. App. 67, 2010 WL 180934. We now affirm.
The record reflects that appellant and members of his family, including his mother, his sister Shelley, and a child D.M., left New Orleans, Louisiana, in August 2005 because of Hurricane Katrina, and they relocated in Hamburg, Arkansas. On November 9, 2005, the prosecuting attorney in Ashley County charged appellant with thirteen counts of rape for 12having sexual intercourse with D.M., who was under the age of fourteen, and with one count of kidnapping the child. The events alleged in the information occurred between September 9 and October 30 in 2005. Appellant stood trial on those charges in June 2006, and he elected to testify in his defense. Appellant testified that he never had sexual intercourse with D.M.; that he did not take the child from Arkansas to Mississippi; that the child went missing on her own from Hamburg; and that he did not know the child’s whereabouts while she was missing. More specifically, appellant testified that he left D.M. with his mother on October 24, 2005, while he met a prostitute in Greenville, Mississippi. He said that he learned that the child was missing when he returned to Hamburg and that he thought that she had run away. Appellant testified that he drove to New Orleans to retrieve his family’s belongings and that D.M. appeared at his mother’s home there on October 27, 2005. He said that, despite knowing that there was an Amber Alert issued for D.M. and that he was suspected of sexually abusing her, he deposited the child with his sister, Angela, who had remained in New Orleans. Appellant maintained that he did not ask D.M. how she arrived in New Orleans and that he did not learn that she had been returned to Arkansas until October 31, 2005. The jury could not reach a verdict on the charges, and the trial court declared a mistrial.
On May 3, 2006, the United States Attorney for the Western District of Arkansas charged appellant with transporting a minor, D.M., across state lines for the purpose of | ¡¡engaging in sexual intercourse. On February 5, 2007, appellant appeared before the federal court and pled guilty to the charge as part of a negotiated plea between appellant, the federal government, and the Ashley County prosecutor. As an offer of proof, the Assistant United States Attorney, Kyra Jenner, recited the following predicate facts. Appellant’s sister, Shelley, had custody of twelve-year-old D.M. in Hamburg, and on October 24, 2005, appellant secreted the child to a motel in Greenville, Mississippi. Appellant left the child there and returned to Hamburg to create the impression that he and the child were not traveling together. From there, appellant transported D.M. to Poplarville, Mississippi, where he exchanged vehicles, and then he took her to New Orleans. Appellant and D.M. stayed with appellant’s sister, Angela, who operated an escort service. While in New Orleans, appellant engaged in sexual intercourse with D.M. Under oath, appellant stated that the government’s proof was “accurate and true.” The federal court accepted appellant’s plea, and in May 2005, the court sentenced appellant to a five-year term of imprisonment. In accordance with the plea agreement, the prosecuting attorney in Ashley County subsequently nolle prossed the rape and kidnapping charges that remained pending following the mistrial.
On June 1, 2007, the Ashley County prosecutor charged appellant with three counts of perjury, alleging that appellant knowingly made false material statements in his testimony at the jury trial held on June- 2, 2006. Prior to trial, appellant moved to enforce the plea agreement negotiated in the federal proceeding. In this motion, appellant asserted that, in | ¿exchange for his guilty plea in federal court, the prosecuting attorney in Ashley County had agreed not only to nolle pros the pending rape and kidnapping charges, but also not to pursue any further charges against the appellant. Thus, appellant sought dismissal of the perjury charges based on his understanding of the plea agreement. In addition, appellant moved in limine to prohibit the prosecution from introducing into evidence the transcript of the plea hearing in federal court. The trial court denied both motions after a pretrial hearing.
At trial, the State introduced into evidence the information containing the rape and kidnapping charges lodged in Ashley County, the mistrial order, and the order of nolle pros. The State also introduced the transcript of the federal plea hearing and a transcript of appellant’s testimony at the jury trial held on June 2, 2006. For the defense, Robert Depper, appellant’s former attorney, testified that appellant faced fourteen life sentences in state court on the rape and kidnapping charges and that the range of punishment for the federal offense was from five to thirty years in prison. Depper said that it was not unusual for a defendant to plead guilty in federal court to avoid harsher penalties in state court. In his testimony, appellant maintained that he testified truthfully at his previous jury trial and that he accepted his attorney’s recommendation to plead guilty to the federal charge. He said that he did not object to the offer of proof at the plea hearing so as to honor the plea agreement. The jury found appellant guilty on all three counts of perjury and fixed sentences of ten years on each count. The trial court ordered two of the ten-year sentences to be served consecutively and also directed that appellant serve his com bined twenty-year sentence consecutively to the ^federal term of imprisonment. This appeal follows the trial court’s judgment and commitment order memorializing the perjury convictions and sentences.
As his second point on appeal, appellant argues that the trial court erred by denying his motion for a directed verdict. A motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Elliott v. State, 2010 Ark. App. 185, 2010 WL 658841. We address this issue first, as an appellant’s right to be free from double jeopardy requires a review of the sufficiency of the evidence prior to a review of any asserted trial errors. Williams v. State, 368 Ark. 395, 214 S.W.3d 829 (2005). A person commits the offense of perjury if, in any official proceeding, he or she makes a false material statement, knowing it to be false, under an oath required or authorized by law. Ark.Code Ann. § 5-53-102(a) (Repl.2005). Arkansas Code Annotated section 5-53-106(b) (Repl.2005) provides that proof that the accused gave inconsistent statements is of itself evidence that one of the statements is false and that it is not necessary to sustain a conviction to establish which statement is false. The purpose of this statute is to relieve the state of the necessity of proving which statement is false, because obviously both cannot be true. Brown v. State, 288 Ark. 517, 707 S.W.2d 313 (1986).
The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence. Diggs v. State, 93 Ark.App. 332, 219 S.W.3d 654 (2005). Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or the other and pass beyond mere suspicion or conjecture. Martin v. State, 354 Ark. 289, 119 S.W.3d 504 (2003). When reviewing a challenge to the sufficiency |fiof the evidence, we consider all the evidence, including that which may have been inadmissible, in the light most favorable to the State. Fondren v. State, 364 Ark. 498, 221 S.W.3d 333 (2006).
Appellant’s argument on appeal is that the information alleged that his testimony at the jury trial was false but that the State failed to produce any evidence proving the falsity of his testimony. Appellant asserts that he was not charged with perjury by making inconsistent statements and that, therefore, it was necessary for the State to prove that his trial testimony was not true. We find no merit in this argument.
As recognized above, a person commits the offense of perjury by knowingly making a false material statement under oath in an official proceeding. Ark. Code Ann. § 5-53-102(a). In terms of proof, the State is under no obligation to prove which statement is false in circumstances where the accused has made inconsistent statements. Ark.Code Ann. § 5-53-106(b). Under Arkansas law, an information need only allege that the defendant committed a named offense, and it is not necessary to include a statement of the act or acts constituting the offense, unless the offense cannot be charged without it. Barnes v. State, 94 Ark.App. 321, 230 S.W.3d 311 (2006). Thus, the State was not required to allege in the information that appellant committed perjury by making inconsistent statements in order to rely on that proof at trial. Although the State alleged in the information that appellant gave false testimony at the jury trial, we regard this additional language in the information as being in the nature of explanatory text that was superfluous and did not make it fatally defective |7such as to warrant reversal. Id. See also Richard v. State, 286 Ark. 410, 691 S.W.2d 872 (1985); Ridgeway v. State, 251 Ark. 157, 472 S.W.2d 108 (1971). The record reflects that appellant was aware that the perjury charges were based on the inconsistent statements. We also observe that the jury was not instructed to find that appellant committed perjury on any particular date. The State introduced into evidence the transcript of the plea hearing in federal court, where appellant attested to the truth and accuracy of the government’s offer of proof that was diametrically opposite of appellant’s testimony at the trial. Given the contradictions between the trial testimony and the facts adduced at the plea hearing, the jury could reasonably infer that appellant knowingly gave false material testimony under oath in an official proceeding. Substantial evidence supports the jury’s verdict, and we affirm.
Returning to appellant’s first point, he contends that the trial court erred by admitting into evidence the transcript of the plea hearing in federal court. Appellant argues that the transcript was inadmissible under Rule 25.4(b) of the Arkansas Rules of Criminal Procedure and Rule 410 of the Arkansas Rules of Evidence. Rule 25.4(b) provides:
Irrespective of whether a plea of guilty or nolo contendere is the result of a plea agreement, if it is not accepted or is withdrawn, or results in a judgment which is reversed or held invalid on direct or collateral review, neither the plea nor any judgment resulting therefrom, nor any statement by the defendant in connection with the making or acceptance of the plea or as a basis for sentence or other disposition thereon, is admissible in evidence against the defendant in any criminal, civil, or administrative proceeding.
Rule 410 contains a similar prohibition:
Evidence of a plea of nolo contendere, whether or not later withdrawn, and of a plea, later withdrawn, of guilty or admission to the charge, or of an offer to |splead to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal action, case, or proceeding against the person who made the plea offer.
We review evidentiary rulings under an abuse-of-discretion standard, and we will not disturb those rulings on appeal unless there has been a manifest abuse of discretion. Allen v. State, 374 Ark. 309, 287 S.W.3d 579 (2008).
Rules 25.4(b) and 410 apply only when a guilty plea has been withdrawn or set aside, which is not the case here. Moreover, the supreme court has held that these rules are not intended to bar perjury charges. Brown v. State, 288 Ark. 517, 707 S.W.2d 313 (1986). Rather, their purpose is to prohibit the use of a withdrawn plea from being used against a defendant as an admission against interest when he is tried on those same charges. Id, See also Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996). Accordingly, the rules have no application in this case, and the trial court did not abuse its discretion by admitting the transcript into evidence.
As his third and final point on appeal, appellant argues that the trial court erred by not enforcing the plea agreement to require the dismissal of the perjury charges. Appellant contends that the State agreed to pursue no further charges against him upon his guilty plea in federal court. Issues concerning the interpretation and enforcement of a plea agreement are reviewed de novo. Green v. State, 2009 Ark. 113, 313 S.W.3d 521. We apply general contract principles in interpreting plea agreements. Id. When a dispute arises over the meaning of a plea agreement, this court will discern the in tent of the parties as expressed in [¡¡the plain language of the agreement viewed as a whole. Miles v. State, 350 Ark. 243, 85 S.W.3d 907 (2002). We review the trial court’s findings of fact for clear error, giving due weight to inferences drawn by the circuit court and reverse only if the ruling is clearly erroneous or against the preponderance of the evidence. State v. Johnson, 2010 Ark. 77, 360 S.W.3d 104.
At the pretrial hearing, Zack Vaughn, the deputy prosecutor in Ashley County who handled the rape and kidnapping case, testified that he negotiated the plea agreement with Jenner and that the prosecution agreed to dismiss the rape and kidnapping charges if appellant pled guilty to the federal indictment. He said that Jenner inquired about the possibility of other charges being filed and that he advised her that he was only authorized by the prosecuting attorney to nolle pros the rape and kidnapping charges. Vaughn said that he made no representations to anyone that perjury charges would not be pursued and that any decision to file perjury charges depended on the factual basis for the federal charge elicited at the plea hearing. Correspondence introduced into evidence states that the prosecution agreed to dismiss all “pending” state charges upon appellant’s plea of guilty in federal court.
Thomas Deen, the prosecuting attorney in Ashley County, testified that Vaughn informed him that Jenner had asked during plea negotiations whether the State anticipated filing additional charges and that he advised Vaughn to commit only to the dismissal of the existing charges. He said that under no circumstances was he willing to forgo filing perjury [ incharges if the facts that came out at the plea hearing were inconsistent with appellant’s testimony at the jury trial.
Jenner testified that Vaughn authorized her to communicate to Depper that the State would dismiss the pending charges if appellant pled guilty to the federal charge. She said that Vaughn made no representation nor granted her the authority regarding future charges and that she did not make a commitment to Depper regarding future charges. She stated that she “was not thinking that perjury charges would be filed” and did not recall either Vaughn or appellant’s attorney raising the issue of perjury before the plea was entered.
Depper testified that he verified with Vaughn that the state charges would be dismissed. He said that Vaughn stated that “we would pursue him [appellant] no further.” Depper testified that Jenner also told him that the State would not pursue further charges against appellant. He said that his understanding was that, if appellant pled guilty, then no additional charges would be pursued. Depper acknowledged that his understanding about future charges was not contained in any of the correspondence concerning the plea agreement.
The trial court ruled that the plea agreement pertained only to the pending rape and kidnapping charges and that the agreement did not include a prohibition against the filing of future charges. The court found that the State complied with the agreement in full by nolle prossing those pending charges. The trial court’s decision was based on its determination of luthe credibility of the witnesses. In deference to that determination, we cannot say that the trial court’s decision is clearly erroneous.
Affirmed.
HART and ROBBINS, JJ., agree.
. This is a violation of 18 U.S.C. § 2423(a), which is known as the "Mann Act.” | [
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PER CURIAM.
| Appellant Corey Sanders appeals the denial of his pro se petition for writ of habeas corpus. We find no error and affirm the order denying relief.
This court affirmed the judgment reflecting appellant’s conviction in the Columbia County Circuit Court on two counts of capital murder and his sentence of life imprisonment. Sanders v. State, 340 Ark. 163, 8 S.W.3d 520 (2000). Appellant filed in the Jefferson County Circuit Court a petition for writ of habeas corpus under Arkansas Code Annotated sections 16-112-101 to -123 (Repl.2006) that challenged the Columbia County judgment. In the petition for the writ, appellant alleged that the trial court did not have jurisdiction over his case because the original information filed in his case identified the bases for the charges as felony murder with an improper underlying felony; amendment of the information was unlawful; there were |2a number of procedural defects in his trial, including the improper seating of a juror, and he was charged by information when he could only be charged by indictment. The circuit court dismissed the petition on the basis that appellant failed to establish probable cause for a finding that he was being illegally held, that the trial court lacked jurisdiction, or that the commitment was invalid on its face.
A circuit court’s denial of habeas relief will not be reversed unless the court’s findings are clearly erroneous. Henderson v. State, 2014 Ark. 180, 2014 WL 1515878 (per curiam). On appeal, appellant raises four points for reversal. In the first point, appellant alleges that the circuit court failed to follow the procedure required by statute when it did not issue a summons and it dismissed the petition without a return or response by the appel-lees. In the remaining points, appellant appears to argue that the trial court lacked jurisdiction to convict him because the charges for which he was convicted were not included in the information, that charging appellant by information rather than indictment was unconstitutional, and that one of the jurors was improperly seated.
The burden is on the petitioner in proceedings for a writ of habeas corpus to establish that the trial court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Culbertson v. State, 2012 Ark. 112, 2012 WL 745303 (per curiam). Under our statute, a petitioner who does not allege his actual innocence and proceed under Act 1780 of 2001 Acts of Arkansas must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he is illegally detained. See id.; Ark.Code Ann. § 16-112-103(a)(1). Appellant did not invoke Act 1780 in his petition, and he did not plead facts |3that would establish one of these two cognizable types of claim. Furthermore, even if appellant stated a cognizable claim, he failed to make the requisite showing of probable cause.
In his first point, appellant contends that the circuit court was required under section 16-112-106 to issue a summons to be served on the appellees and that the appellees were required to respond to the petition for the writ before the court could deny his claims. The circuit court was not required to serve the appellees nor were the appellees required to respond. In contrast to proceedings under Act 1780 of 2001 Acts of Arkansas, which does require a response to a petition for the writ, the chapter of our code applicable to the habeas proceedings in this case does not contain a provision mandating a response. See Ark.Code Ann. § 16-112-204(a). Section 16-112-106 is only applicable for service of the writ once the writ has issued, which in this case did not occur. Return is contemplated to bring the petitioner before the court, and a court may dispose of a petition without a hearing or the presence of the petitioner where the petition fails to allege cognizable grounds for the writ or demonstrate probable cause for issuance of the writ. See Buchanan v. Hobbs, 2014 Ark. 105, 2014 WL 891006 (per curiam).
In his next two points, appellant raises arguments concerning the validity of the information charging him, intertwined with other arguments concerning trial error that he had raised in his petition below. Assertions of trial error such as appellant has raised are not sufficient to implicate the facial validity of the judgment or the jurisdiction of the trial court. See Chambliss v. State, 2014 Ark. 188, 2014 WL 1673747 (per curiam). A habeas-corpus proceeding does not afford a convicted defendant an opportunity to retry his case and argue issues that could have been settled at trial. Tolefree v. State, 2014 Ark. 26, 2014 WL 260990 (per curiam). Appellant’s allegations of trial error | concerning the information — such as improper amendment of the information, lack of notice, and failure to include sufficient information to identify the crime— are not the types of defects that raise a jurisdictional issue, and such allegations are therefore not cognizable in a proceeding for the writ. See Craig v. Hobbs, 2012 Ark. 218, 2012 WL 1739108 (per curiam); see also Willis v. Hobbs, 2011 Ark. 509, 2011 WL 5995593 (per curiam).
Although appellant couches the first of his two claims concerning the information as an allegation that his conviction was not for the crime for which he was charged, the claim is premised on his assertions that the original information was defective and did not sufficiently describe the crime. Appellant’s argument is that the defective information could not be amended to cure the defects and the proceedings were therefore void.
Claims of a defective information that raise a jurisdictional issue, such as those that raise a claim of an illegal sentence, are cognizable in a habeas proceeding. Willis, 2011 Ark. 509. Appellant’s argument hinges on his assertion that the information could not be amended, that amendment in itself is unauthorized and that, if authorized, the amendment changed the nature of the proceedings. This court has previously held that such a claim regarding a similar amendment did not challenge the personal or subject-matter jurisdiction of the court and was not cognizable in a habeas proceeding. Hill v. Norris, 2010 Ark. 287, 2010 WL 2210926 (per curiam).
The State is entitled to amend a felony information before the case has been submitted to the jury, provided the amendment does not change the nature or degree of the crime charged or create an unfair surprise for the defendant. See Green v. State, 2012 Ark. 19, 386 S.W.3d 413; Glaze v. State, 2011 Ark. 464, 385 S.W.3d 203. Although appellant asserts that the amendments |Bhere changed the nature of the crime charged in that he was charged with felony capital murder but convicted of premeditated capital murder, the changes made in this case did not change the nature of the crime charged. See Terry v. State, 371 Ark. 50, 263 S.W.3d 528 (2007) (citing Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996)) (holding that whether amendment to capital felony-murder information to add the charge of premeditated and deliberate murder was improper turned on whether there was prejudice or surprise). Here, the nature of the offense remained the same, and the amendment only changed the manner of the alleged commission of the crime. See Green, 2012 Ark. 19, 386 S.W.3d 413.
Appellant additionally asserts that charging him by information rather than indictment was unconstitutional. However, a defendant may be charged by information rather than indictment. Dickinson v. Norris, 2011 Ark. 413, 2011 WL 4635034 (per curiam) (citing Peterson v. Norris, 2009 Ark. 445, 2009 WL 3047598 (per curiam), in turn citing Ruiz v. State, 299 Ark. 144, 165, 772 S.W.2d 297, 308 (1989)). Both claims based on appellant’s contention that the charging instruments were invalid therefore fail.
Finally, Sanders alleges that a member of the jury panel was biased. Sanders raised the issue of the biased juror in his claim for post-conviction relief and a hearing was held by the circuit court and his claim was denied. We affirmed this decision in Sanders v. State, 2003 WL 22351933. As in Dickinson, we are precluded from reaching the merits of Sanders’s argument “because we have held that trial irregularities and ineffective assistance of counsel issues are not grounds for issuance of a writ of habeas corpus.”
Affirmed.
. Appellant was, and, as of the date of this opinion, remains, incarcerated in a unit of the Arkansas Department of Correction in Jefferson County. | [
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DAVID M. GLOVER, Judge.
I iln an order entered August 25, 2009, the Craighead County Circuit Court terminated the parental rights of appellant, Tammy Gossett, to her son, D.M., whose date of birth is December 6, 2007. Ms. Gossett’s appellate counsel has moved to withdraw from this case and has filed a no-merit brief pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004) and Supreme Court and Court of Appeals Rule 6 — 9(i), asserting that there are no issues that would support a meritorious appeal. Pursuant to Rule 6-9, the court clerk has mailed to appellant a copy of her counsel’s motion and brief, informing her of her right to file pro se points for reversal. She has not done so. |aWe affirm the termination of Ms. Gossett’s parental rights and grant counsel’s motion to withdraw.
Procedural Background
This case can probably best be summarized by the trial court’s conclusion that, although appellant’s love for her child is obvious, she is not able to take care of herself, much less her child. D.M. was born on December 6, 2007, and the petition for emergency custody was filed on December 11, 2007, based upon allegations that appellant was naked in her hospital room, with her stepfather and the newborn present, and that she yelled at the newborn to shut up because the baby would not stop crying, telling the nurse that she did not know what else to do. An order for emergency custody was filed on December 11, 2007, and the probable-cause order was filed on December 13, 2007. Following a hearing, the trial court entered its adjudication order, finding the child dependent-neglected, removing the child to DHS custody, and setting a goal of reunification. The order set forth the court’s expectations of the mother. On April 29, 2008, the child’s court-appointed attorney ad litem filed a motion for an order to terminate reunification services. A no-reunification hearing was held on September 22, 2008, but the trial court found partial compliance by appellant and continued the reunification goal. The court noted that appellant was not able to maintain contact with her caseworker because she was incarcerated at the time. Review hearings were held throughout this period.
A permanency-planning hearing was held on December 9, 2008, and the resulting order was filed on March 18, 2009. The goal of reunification was continued but a concurrent | ¡¡goal of termination was also set, with a decision on that goal deferred until the next hearing. The next hearing in this case was the fifteen-month review hearing; the resulting order determined that return of the child to appellant was contrary to his best interests and changed the goal to termination and adoption. The order contained typographical errors, which the trial court subsequently corrected to show that DHS had complied with the case plan, making reasonable efforts to deliver reunification services, and that appellant had not complied with the plan and the court’s orders.
On May 1, 2009, DHS filed a petition to terminate appellant’s parental rights, alleging that the child had been adjudicated dependent-neglected and had been out of appellant’s custody for twelve months or more, and that despite meaningful efforts to correct the conditions that caused removal, appellant had not remedied those circumstances. In addition, DHS alleged that appellant had failed to obtain stable housing, that she did not have adequate income to support the child, that she did not attend counseling regularly or take her medication, and that she did not have transportation and did not make use of available public transportation. Finally, DHS alleged that other factors had arisen since the original petition had been filed, which also demonstrated that return of the child was contrary to his best interests and that appellant had demonstrated an incapacity or indifference to remedying those subsequent conditions. On May 9, 2009, appellant filed a petition for permanent relative custody, seeking placement with the child’s maternal aunt if custody was not to be returned to appellant. In answering the petition for termination, appellant asserted a constitutional challenge to Arkansas Code Annotated section 9-27-341, as applied, on due-process grounds.
|4The termination hearing was held on July 21, 2009. DHS presented evidence of the services that had been provided to appellant under the case plan, and appellant testified in defense of no termination. In its resulting order, the trial court determined that, by clear and convincing evidence, DHS had proved that appellant’s parental rights should be terminated. The trial court also denied appellant’s petition for alternative relative custody. Appellant made no further constitutional argument at the hearing; no ruling was obtained. The termination order was entered on August 25, 2009, and the notice of appeal was filed on September 1, 2009.
Standard of Review
As explained in Smith v. Arkansas Department of Health & Human Services, 100 Ark. App. 74, 81, 264 S.W.3d 559, 564 (2007):
Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Meriweather v. Ark. Dep’t of Health & Human Servs., 98 Ark. App. 328, 255 S.W.3d 505 (2007). Grounds for termination of parental rights must be proven by clear and convincing evidence. Id. Clear and convincing evidence is that degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established. Id. When the burden of proving a disputed fact is by clear and convincing evidence, the appellate inquiry is whether the trial court’s finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id.
In Emmert v. Arkansas Department of Human Services, 2010 Ark. App. 128, 374 S.W.3d 104, 106, we further explained:
An order forever terminating parental rights must be based on clear and convincing evidence that termination is in the child’s best interest. Ark.Code Ann. |s§ 9-27-341(b)(3)(A) (Repl.2008). Factors to consider in determining best interest are the likelihood of adoption and potential harm caused by returning the child to the custody of the parent. Id. Additionally, DHS must prove at least one statutory ground for termination by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3)(B) (Repl. 2008). The purpose of terminating a parent’s rights to his or her child is to provide permanency in the child’s life where returning the juvenile to the family home is contrary to the child’s health, safety, or welfare, and it appears that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the juvenile’s perspective. Ark.Code Ann. § 9-27-341(a)(3) (Repl.2008). We do not reverse a termination order unless the trial court’s findings were clearly erroneous. Meriweather v. Arkansas Dep’t of Health & Human Servs., 98 Ark. App. 328, 255 S.W.3d 505 (2007).
Sufficiency of the Evidence
Here, DHS had adoption as its placement plan for the child; it was appropriate because the evidence was that the child was not only “adoptable” but that a specific family was interested in adopting him. Moreover, the evidence supported the determination that the child faced potential harm if he were returned to appellant. The child had been removed just days after his birth; even when appellant made some improvements in her situation, it was with great help and she then could not maintain them; her living conditions were not acceptable, and she could not master the tasks of obtaining financial assistance to better those conditions; and she exhibited mental-health issues: inability to control her anger, demonstrating impulsiveness, and inability to master simple child-care tasks. In addition, DHS was required to establish at least one statutory ground for termination, and the trial court concluded that two had been established: a) the child had been out of appellant’s custody for at least twelve months and DHS had made a meaningful effort to rehabilitate appellant and correct the conditions that caused removal, yet despite those efforts, she had not remedied the | (¡conditions (§ 9 — 27—341(b)(3)(B)(i)(a)); and b) other factors or issues had arisen after the filing of the original dependency-neglect petition that demonstrated return of the child would be contrary to the child’s welfare (§ 9-27-341(b)(3)(B)(vn)).
In short, after reviewing all of the evidence in this ease, the trial court concluded that the termination of appellant’s parental rights was in D.M.’s best interest, considering the strong likelihood that he would be adopted and the potential harm of him having continuing contact with appellant because she was unable to maintain acceptable living arrangements, unable to perform even the most basic of parenting functions during visitation, such as properly measuring formula, and unwilling to attend counseling and take her medication, •without which she had trouble controlling her anger and impulsiveness. In addition, the trial court concluded that DHS had established by clear and convincing evidence that D.M. had been out of appellant’s custody for at least twelve months, and that, despite meaningful efforts to rehabilitate appellant to correct the conditions that caused removal, appellant had not remedied those conditions.
A parent’s failure to appeal from determinations that DHS made reasonable efforts to rehabilitate precludes that argument in an appeal from the termination of parental rights, Jones-Lee v. Arkansas Dep’t of Human Servs., 2009 Ark. App. 160, 316 S.W.3d 261; appellant did not appeal from those findings throughout the case. Moreover, the evidence of DHS’s meaningful efforts to rehabilitate appellant was clear: offering psychological evaluations, arranging for counseling, helping with transportation, loaning her money for medication, assisting with paperwork for HUD, instructing about formula preparation, and providing |7parenting classes. Even though the satisfaction of only one statutory ground is sufficient to terminate parental rights, the trial court also concluded that DHS had proven by clear and convincing evidence that other factors or issues had arisen after the filing of the dependency-neglect petition that demonstrated it would be contrary to D.M.’s welfare to return him to his mother and that despite the offer of appropriate family services, appellant had demonstrated the incapacity to remedy the subsequent factors/issues. The evidence of appellant’s mental deficiencies established that she was not able to overcome her limitations to be able to properly care for D.M.
Other Adverse Rulings
Appellant’s counsel discussed the other rulings made by the trial court and explains why they would not support a meritorious appeal. We agree.
Appellant initially raised a constitutional challenge; however, she did not pursue the argument and did not obtain a ruling on it from the trial court. Consequently, the issue was waived and would not provide a basis for a successful appeal.
In an abundance of caution, counsel also discusses several evidentiary rulings made by the trial court concerning some misdemeanor offenses allegedly committed by appellant. While the trial court initially allowed certified documents concerning the offenses to be introduced, it reversed those rulings and did not allow the evidence once it became clear that the documents did not establish convictions for those offenses. Consequently, these rulings were actually not adverse to appellant.
| ^Finally, counsel addresses the trial court’s denial of appellant’s request to place D.M. in the permanent custody of her sister, Sharon Britt. At the termination hearing, it was clear that the sister had not taken the necessary steps to establish the suitability of her home for D.M.; further, she did not appear at the hearing. As noted by counsel, no error can be predicated on the trial court’s failure to order a placement where the proposed family has expressed no interest in such a placement.
Based on our review of the record and the brief submitted to us, we conclude that there has been full compliance with Rule 6 — 9(i) and that the appeal is without merit. Appellant’s counsel’s motion to be relieved is granted, and the decision to terminate appellant’s parental rights is affirmed.
Affirmed; motion to withdraw granted.
ROBBINS and MARSHALL, JJ„ agree. | [
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JOHN B. ROBBINS, Judge.
| [This is an appeal regarding the competency of a decedent to execute documents affecting her estate. Appellant S. Killeen DesLauriers (Killeen) appeals the order of the Lonoke County Circuit Court that rejected her attempt to invalidate four documents executed by her cousin Marilyn DesLauriers during and after her stay in the hospital in 2005 following a stroke. As a result of those documents being executed, appellee Richard Gautney (Richard) received the bulk of Marilyn’s estate after specific monetary gifts to St. Rose Catholic Church, Lonoke Cemetery Association, Marilyn’s beloved cats, and appellant Kil-leen. Marilyn’s wishes were kept confidential by Marilyn and her attorney until after Marilyn’s death on July 20, 2007.
Killeen filed suit, a “Complaint To Contest Trust,” after Marilyn’s death to contest the validity of these documents, contending that Marilyn was not competent to execute them and |galso that they were procured by the undue influence of Richard. Killeen also asked for other relief, not relevant to this appeal. After hearing testimony and receiving documentary evidence, the trial judge found that Killeen failed to prove undue influence or mental incapacity. This appeal followed in which Killeen challenges only the finding that she did not carry her burden to prove Marilyn’s mental incapacity. We have reviewed the evidence and arguments under the appropriate standard, and we affirm the trial court’s findings as not clearly erroneous.
We review proceedings such as these de novo, but we will not reverse the trial court’s decision unless it is clearly erroneous. Moore v. Sipes, 85 Ark.App. 15, 146 S.W.3d 903 (2004). A decision is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been made. Walker v. Torres, 83 Ark.App. 135, 118 S.W.3d 148 (2003). When reviewing the proceedings, we give due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Moore, supra. The party contesting the validity of the will has the burden of proving by a preponderance of the evidence that the testatrix lacked mental capacity at the time the will was executed or that the testatrix acted under undue influence. Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992).
The evidence regarding Marilyn’s life and personal activities is not in material dispute. Marilyn was raised a Catholic, attended St. Rose Catholic Church, graduated from a Catholic school, and was employed as a nurse at St. Vincent Infirmary during her working years. | sMarilyn, a divorced woman with no children, lived in rural Lonoke, Arkansas, and was occasionally kept company by appellee Richard and his wife Karen. Richard kept her yard mowed and also tended to chores for Marilyn, such as arranging for contractor’s work, bringing her food, and the like. Their friendship dated back to 1988. Marilyn had a tremendous fondness for her many cats, was a bit eccentric, was fiercely independent, and made no secret that she feared having to enter a nursing home. She was not close to her relatives and did not see them often.
Marilyn suffered a stroke at home on July 15, 2005. Richard found her inside her home and summoned an ambulance. She was hospitalized in a Jacksonville hospital through August 18, 2005, and then she was moved to Baptist Rehabilitation to further recuperate. Marilyn’s medical records noted vascular dementia and delirium. She suffered confusion and disorientation at times. She eventually went home and was able to live there with the help of an in-home aide, who said Marilyn had good days and bad days as far as her mind was concerned. She died two years later, on July 20, 2007, at the age of eighty-two.
When the attorney revealed the material contents of her trust and will after her death, Killeen learned of her specific $50,000 gift and that she was a member of a class (heirs at law) designated to receive 25 percent of the residue of Marilyn’s estate. Killeen was displeased that Marilyn would give the remaining 75 percent of the residue of her estate to her “yardman,” and she sought to have the documents all declared null and void due to Marilyn’s incompetency.
14Killeen submitted the deposition testimony of four physicians who had treated Marilyn around the time of the execution of the documents, and they all opined that Marilyn was suffering from dementia and would be incompetent to execute those documents. The first was Dr. Layton, a geriatric specialist who treated Marilyn in Jacksonville during her stay between July 15 and August 18, 2005, who opined that she was incapacitated due to irreversible dementia. However, Dr. Layton was not present at the signing of any of the documents, which were all executed after August 18. The second was Dr. Flores, who only reviewed Marilyn’s medical records and did not recall treating her, who opined that she was not competent to execute legal documents. The next was Dr. Yo-kum, who treated Marilyn as her orthopedic surgeon. Dr. Yokum saw Marilyn three times on rounds in September at Baptist Rehabilitation, and he described her as suffering from dementia and disorientation and believed her unable to consent to her own medical procedures. Dr. Yokum was not present at the signing of any of the documents. Last was Dr. Rector, who was Marilyn’s pulmonologist at Baptist Rehabilitation in August 2005. Dr. Rector, who was also not present at the execution of any of the documents, opined that Marilyn suffered dementia and confusion such that she would be unable to execute any documents at issue.
The medical records entered into evidence described Marilyn as suffering from confusion and disorientation, but they also reflected notes of alertness and doing well. Her impairment was sometimes described as severe, whereas other times it was described as mild.
Killeen also called two lay witnesses to the stand. One was another cousin, Joy Ann IsRichardson. Richardson visited Marilyn at Baptist Rehabilitation in August 2005, and she said that Marilyn did not recognize her and she was speaking about her deceased parents as if they were alive. Richardson stood to inherit some of Marilyn’s estate, and she believed the trust to be invalid because she thought Marilyn “was all about family.” Next was Gary Spears, a Lonoke farmer who worked Marilyn’s acreage from the mid 1990s until 2006. Spears testified that he thought Richard was in control of the majority of Marilyn’s business, that it would be unlike Marilyn to sign anything, much less a will, and that during his hospital visits, Marilyn seemed very confused.
In contrast, Richard presented the testimony of the lawyer whom Killeen hired to help Marilyn, Mike Munnerlyn, who stated that he was very careful to determine whether his client was legally competent to execute the documents. Munnerlyn was hired because he specialized in estate-planning matters and because he grew up in Lonoke, which gave him more credibility with Marilyn.
Munnerlyn expressed shock that Killeen would try to set the documents aside. Munnerlyn testified that he was hired by Killeen to prepare a power of attorney, which placed Killeen and Richard in charge of Marilyn’s business affairs, and that Killeen insisted from the very beginning that while Marilyn was odd, she was very competent. The durable power of attorney was acknowledged on August 17, 2005, by Munnerlyn.
Killeen never questioned the validity of the power of attorney and wrote checks and conducted business for her cousin for the next two years. Munnerlyn explained that Killeen 16paid all invoices for his work, that he billed Richard and Killeen for those services with mailed statements explaining his charges, and that they discussed his role in helping Marilyn with her “estate planning.”
While Marilyn was in Baptist Rehabilitation, she executed the quitclaim deed and revocable trust, both dated August 24, 2005, before Munnerlyn. The deed conveyed her real-property interest into the trust. The trust made the specific aforementioned gifts. On September 8, 2005, Marilyn executed her last will and testament at Baptist Rehabilitation. Munner-lyn asked two hospital employees to attend as attesting witnesses. Both women testified that they met Marilyn in her hospital room, they chatted for ten to fifteen minutes, and they both observed Marilyn to appear fully aware of what she was doing. Neither woman stood to gain anything from Marilyn or her estate.
Munnerlyn explained that Marilyn was very fearful that someone would attempt to contest her trust and will documents. Therefore, he said he explained the option of creating a “no contest” clause so that any beneficiary contesting the trust and will risked forfeiting any bequest. Mun-nerlyn wrote such a clause into the documents. Munnerlyn said that Marilyn was cognizant of her church, the cemetery where her parents were buried and where she would be buried, her concern for her cats and humane organizations, and her strong desire to divide her remaining assets without the need for probate. Mun-nerlyn said he took notes during their private meetings, and the information came from Marilyn herself.
17Munnerlyn testified that he met with Marilyn several times to discuss her property, her desires, and her ideas about estate planning. In furtherance of Marilyn’s wishes, Munnerlyn prepared a first amendment to the revocable trust that affected her farm acreage and mineral rights. That document was executed at Marilyn’s home on December 13, 2005, before Munnerlyn.
At the hearing, Killeen testified that she hired Munnerlyn to draft only a power of attorney because this was suggested to her by hospital personnel. Killeen, a practicing obstetrician/gynecologist, denied anyone making mention of a guardianship. Killeen and Richard were given equal authority under that power of attorney to write checks for Marilyn and to act on her behalf. Killeen explained that although she believed Marilyn was too ill to understand what was going on, Killeen only wanted to do what was necessary to quickly be able to make decisions on her cousin’s behalf.
Killeen denied ever receiving the mailed billing documents that explained what Munnerlyn was preparing. Killeen acknowledged that she signed checks to pay for his services, and that the memorandum line on one check read “estate planning,” but she professed ignorance of the other documents’ existence or purpose. Killeen was convinced that Richard had an inappropriate relationship with her cousin and took advantage of her age and pliability.
Dr. Les Anderson, a family physician practicing in Lonoke, testified that he had known Marilyn all his life and that he had treated her on March 23, 2006, after her stroke and return | ahorne. After speaking to Marilyn at the clinic, Anderson thought it remarkable how well she had fared mentally, though not physically, from the stroke.
Richard and his wife Karen testified that they were surprised at what Marilyn had done for them at her death, and they testified to their actions as neighbors and friends through the many years since 1988. Richard was not present for the signing of any of the subject documents.
On this evidence, after considering the credibility of the witnesses, the judge found that Killeen failed in her burden to prove by a preponderance of the evidence that Marilyn lacked the mental capacity to execute the documents at issue. The judge found that Marilyn had, at the time of the execution of documents, the power to think rationally and to retain without prompting the nature of her estate, the disposition she desired, and the beneficiaries of her desires. An order recited these findings, and this appeal followed.
Testamentary capacity means that the testator must be able to retain in her mind, without prompting, the extent and condition of her property, to comprehend to whom she is giving it, and relations of those entitled to her bounty. Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992). In Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997), our supreme court wrote:
Complete sanity in the medical sense is not required if the power to think rationally existed at the time the will was made. Furthermore, our own law is clear that despite any mental impairment, the testator may execute a will if he is experiencing a lucid interval. The time to look at a testator’s mental capacity is at the time the will is executed. However, proof may be taken as to the testator’s condition both before and after the will’s execution as being relevant to his condition at the time the will was 19executed. This court has upheld mental competency at the time of the execution of a will even in the wake of evidence of some mental deterioration.
Id. at 665—66, 956 S.W.2d at 176 (citations omitted). A testator’s old age, physical incapacity, and partial eclipse of mind will not invalidate a will if he has the requisite testamentary capacity when the will is executed, also known as a “lucid interval.” Pyle v. Sayers, 72 Ark. App. 207, 34 S.W.3d 786 (2000); Hodges v. Cannon, 68 Ark. App. 170, 5 S.W.3d 89 (1999).
In this case, there was conflicting testimony on Marilyn’s mental capacity. It was the trial court’s duty to weigh the testimony and resolve the conflicts. The persons in the room with Marilyn at the execution of each document all testified that she appeared coherent and fully aware of her actions. Upon our de novo review, we hold that the trial court did not clearly err in finding that she was mentally competent at the time she executed the documents.
Affirmed.
GLOVER and MARSHALL, JJ., agree. | [
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RITA W. GRUBER, Judge.
11 This case is before us on appeal for the third time. We dismissed Esterosto, LLC’s, first appeal for lack of a final order. Esterosto, LLC v. Kinsey, 2009 Ark. App. 396, 2009 WL 1362345. Esterosto returned to the trial court to cure that problem, which the trial court did on July 14, 2009, by entering an Amended Order. On March 3, 2010, we again dismissed Esterosto’s appeal: this time because Est-erosto did not file a notice of appeal from the Amended Order. Esterosto, LLC v. Kinsey, 2010 Ark. App. 213, 2010 WL 724517. Esterosto has filed a petition for rehearing on the ground that it did in fact file a timely notice of appeal from the Amended Order on August 10, 2009. The Pulaski County Circuit Clerk failed to include the timely notice of appeal in the ^supplemental record filed with this court; rather, the clerk mistakenly included the first notice of appeal, dated August 13, 2008. The error was not discovered until we issued our opinion dismissing the appeal for lack of jurisdiction. Attached to Esterosto’s petition for rehearing is a certified copy of the correct notice of appeal and an affidavit of the Pulaski County Circuit Clerk explaining that the clerk mistakenly placed the wrong notice of appeal in the supplemental record. We grant the petition and issue this substituted opinion.
The issue in this case is whether a notice provided by the Commissioner of State Lands to tax-delinquent property owners Dianna and Randy Kinsey complied with Arkansas statutory notice requirements and with the dictates of federal constitutional due process. Esterosto, LLC, the purchaser of the Kinseys’ property at the tax sale, filed a petition in Pulaski County Circuit Court to quiet title to the property. The circuit court found that the Kinseys had not received notice of the tax sale and dismissed Esterosto’s petition. Esterosto appeals from that dismissal. We hold the notice provided in this case complied with Ark.Code Ann. § 26-37-301 (Repl.1997) and with the Due Process Clause of the Fourteenth Amendment, and we reverse and remand to the circuit court to enter an order quieting title to the property in Est-erosto, LLC.
Dianna and Randy Kinsey owned property located in the Barton’s Addition to North Little Rock. In March 1998, the Pulaski County Assessor’s Office certified the property to the State as tax delinquent. The Commissioner of State Lands sent notice of the delinquency by certified mail to the Kinseys in May 1998, indicating that the property would be sold on |sMay 18, 2000, unless the Kinseys redeemed the property before that date. The notice was mailed to 138 Pecan Valley Drive, Sherwood, Arkansas, which was the Kinsey5 home address. The return receipt card was signed, illegibly, and returned to the Commissioner of State Lands. In January 2000, the Commissioner sent a second notice by certified mail to the actual address of the delinquent property, which was returned to the Commissioner’s office with the notation “no such number.” On May 11, 2000, the Commissioner published notice of the sale in the Arkansas Democrat-Gazette.
The Commissioner offered the property for sale on May 18, 2000, but no bids were received. Three years later, Esterosto made a bid for the property and purchased it in a negotiated sale with the Commissioner in June 2003. On June 26, 2003, the Commissioner sent another letter to the Kinseys notifying them that the property had been sold.
On January 5, 2008, Esterosto filed a petition to quiet title to the property in order to confirm the tax sale. At trial, the Kinseys denied signing the receipt for the notice and denied that they had ever received a copy of the notice. Mr. Kinsey also testified that the property was tax exempt but admitted on cross-examination that the property that was certified by the assessor’s office as tax exempt was not this property but another parcel owned by the Kinseys. Indeed, the Kinseys had received a letter from the county assessor’s office denying tax-exempt status for the property at issue in this case.
The circuit court entered an order denying Esterosto’s petition and dismissing it with prejudice. Specifically, the court found that the Commissioner of State Lands fully complied |4with Arkansas’s statutory requirements and mailed notice to the Kinseys at their residence by certified mail, return receipt requested. The court also found that the return receipt for the letter was signed and returned to the Commissioner, although the signature on the receipt was not legible. The court found credible the testimony of the Kin-seys that they did not receive the letter and thereafter concluded that the Kinseys “did not receive actual notice of the tax sale.” Esterosto brought this appeal.
Esterosto contends on appeal that the notice procedure used by the Commissioner of State Lands in this case strictly complied with Ark.Code Ann. § 26-37-301 and also satisfied constitutional due process requirements. Therefore, Esterosto argues, the circuit court erred in dismissing its petition for quiet title. The issue of notice given to a party with an interest in tax-delinquent land is a matter of statutory interpretation, which we review de novo on the record. Jarsew, LLC v. Green Tree Servicing, LLC, 2009 Ark. App. 324, 308 S.W.3d 161.
I.
Under Arkansas law, the Commissioner of State Lands was required to “notify the owner, at the owner’s last known address, by certified mail, of the owner’s right to redeem by paying all taxes, penalties, interest, and costs, including the cost of the notice.” Ark.Code Ann. § 26-37-301(a)(l) (Repl.1997). In this case, there is no dispute that the Commissioner fully complied with these statutory requirements and mailed notice to the Kin-seys at their residence by certified mail. Indeed, while the statute in effect at the time did not require a return receipt, a return receipt was requested in this case. Neither is there a dispute that the 1.¡receipt was signed and returned to the Commissioner. The notice was not returned “unclaimed” or “undelivered.” The statute does not require actual notice. In this case, the Commissioner complied with the statute.
II.
In addition to complying with the statute, the notice sent must satisfy the Due Process Clause of the Fourteenth Amendment. Due process does not require that a property owner receive actual notice before the government may take his property. Jones v. Flowers, 547 U.S. 220, 226, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006). Rather, due process requires the government to provide “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)).
In Jones, the Arkansas Commissioner of State Lands had mailed notice of a tax sale by certified letter, return receipt requested, to a tax-delinquent property owner. The post office returned the unopened packet to the Commissioner marked “unclaimed.” At the time the notice was mailed, Arkansas did not have any additional notification requirements for unclaimed notices. Jones, the property owner, challenged the tax sale claiming that the Commissioner failed to provide notice to him and contended that the statutory procedures were not constitutionally adequate. The trial court found that the statutory notice procedures | (-.complied with constitutional due process requirements and ruled in favor of the Commissioner and Flowers, the purchaser at the tax sale. The Arkansas Supreme Court agreed and affirmed the trial court’s judgment. The United States Supreme Court reversed, holding that “when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so.” 547 U.S. at 225, 126 S.Ct. 1708.
The Court noted that actual notice is not required, that notice has been deemed constitutionally sufficient if it was reasonably calculated to reach the intended recipient when sent, and that the failure of notice in a specific case does not establish the inadequacy of the attempted notice. Id. at 226-31, 126 S.Ct. 1708. In other words, the Court made it clear that the constitutionality of a particular notice procedure is to be assessed ex ante rather than post hoc. Id. at 231, 126 S.Ct. 1708. But the Court determined that due process entails further action when the government becomes aware prior to taking that its attempt at notice has failed. Id. at 227, 126 S.Ct. 1708. The Court found in Jones that the State had good reason to suspect when the notice was returned unclaimed that Jones was no better off than if the notice had never been sent. The Court held, in that situation, that the State was required to take additional reasonable steps to notify Jones if practicable to do so. Id. at 234, 126 S.Ct. 1708.
The Kinseys are not like the property owner in Jones. In this case, the Commissioner sent the notice by certified mail, return receipt requested. The receipt was signed and returned. It was not returned “unclaimed.” Thus, unlike the situation in Jones, the 17Commissioner in this case was not aware that the notice had failed. We do not believe the Due Process Clause requires the Commissioner to investigate every signature to insure it is in fact the signature of the property owner. The Court made it clear in Jones that actual notice was not required and the failure of notice in a specific case does not establish the inadequacy of the attempted notice. Id. at 231, 126 S.Ct. 1708. As long as the Commissioner performed as required by the statute and the statutorily prescribed notice complied with due process — that is, the notice was reasonably calculated to reach the intended recipient — it has done enough. In this case, there is no dispute that the address was correct and that the return receipt was returned to the Commissioner with a signature. No additional steps were required to satisfy due process.
III.
On appeal, the Kinseys also argue that the circuit court’s order was correct because the contents of the notice mailed to the Kinseys did not strictly comply with the statute. See Ark.Code Ann. § 26-37-301(b) (Repl.1997). This argument was not brought to the attention of the trial court. Thus, neither the parties nor the trial court had the opportunity to develop it. See Haire v. State, 340 Ark. 11, 8 S.W.3d 468 (2000) (holding court will not consider arguments not properly developed). The sole issue raised and addressed in the trial court was the method of notice used by the trial court. See Ark.Code Ann. § 26-37-301(a) (Repl.1997). We will not review an issue raised for the first time on appeal. Ark. Beverage Retailers Ass’n v. Langley, 2009 Ark. 187, 305 S.W.3d 427; see also Stills v. Stills, 2010 Ark. 132, 361 S.W.3d 823, and City of Little Rock v. Rhee, 375 Ark. 491, 498, 292 S.W.3d 292, 296-97 (2009).
Finally, the Kinseys contend that, even if the notice did comply with the statute and was constitutionally sufficient, the circuit court was correct in dismissing Ester-osto’s petition because the property at issue should have been tax exempt. Whether the property should have been tax exempt is irrelevant. The undisputed evidence at trial established that the property was not tax exempt. The county assessor had never declared this property to be tax exempt; taxes levied on the property remained unpaid; and the property was certified to the State as tax delinquent. Any challenge to the tax status of the property should have been made long before now.
Reversed and remanded.
VAUGHT, C.J., and PITTMAN, ROBBINS, KINARD, and GLOVER, JJ., agree.
. The statute, as amended since 1997, now requires additional steps if the notice by certified mail is returned "unclaimed” or "undelivered.” Ark.Code Ann. § 26-37-301(a)(3)-(4) (Supp.2009). | [
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WAYMOND M. BROWN, Judge.
| t This case is the result of a deal between friends that went bad. Sam Durham purchased land in Izard County from Susan and Terry Smith. After learning that the acreage was less than the one thousand acres he thought he had purchased and after a bank foreclosed on a security interest on equipment located on the property, Mr. Durham sued the Smiths. But the Izard County Circuit Court denied him relief after finding that Mr. Durham failed to prove that he was damaged in either the land-sale contract or the conversion of a tractor and hay baler. The circuit court correctly ruled that Mr. Durham failed to prove damages in the land-sale contract, despite the discrepancy in the acreage, but it erred in denying damages on |2the conversion claim when it based its denial on the lack of unjust-enrichment to the Smiths. Thus, we affirm in part and reverse and remand in part.
Factual and Procedural History
In 2000, the Smiths purchased the property in question, and Mr. Durham took a ride over the property with Mr. Smith. In either 2002 or 2003, Mr. Smith told Mr. Durham that he planned to subdivide and sell the property. Mr. Durham offered to purchase the entire property instead, and exhibits show that he purchased the prop erty and various farming equipment for $750,000. From here, however, the trial testimony widely varies.
Mr. Durham testified that Mr. Smith had always referred to the property as one thousand acres and that, when he added up the acreage on a plot plan the night before closing, he (Mr. Durham) determined that the property was 997 acres. At trial, he was shown the closing settlement statement, which revealed that he was purchasing 920 acres. Mr. Durham stated that he never saw that he was purchasing 920 acres and that, had he seen it, he would have ignored it because Mr. Smith had told him the property was 997 acres. He claimed that he would not have signed the closing documents had he known he was buying only 920 acres. Mr. Durham ultimately sold the property, which was actually 912 acres, for $1000 per acre. He wanted the Smiths to pay him $85,000, which represented the difference between the acreage he thought he was getting and the acreage he actually purchased.
Prior to closing on the purchase, Mr. Durham asked the Smiths for a list of the equipment on the property. The purpose was to obtain a loan from First National Bank of | ¡¡Izard County. Two copies of the equipment list were entered into evidence. The first simply listed the equipment and its value. The second list was similar, except that typewritten on the bottom was a statement that Mr. Durham would assume the debts owed on the equipment and that the only debts were on a tractor and a hay baler. The second list was signed by Mr. Durham and the Smiths. Also introduced into evidence was a bill of sale for the equipment. Above the Smiths’ signatures was a statement attesting that the equipment was free of all encumbrances. Mr. Durham testified that, about one month after closing, Mr. Smith told him that there was one payment due on the tractor and that he did not have the $7025 payment. Mr. Durham said that he made the payment and that he did so because Mr. Smith was his friend.
At some point after closing, Mr. Durham discovered that he could no longer pay his son a salary to stay on the property. He could not return to the property himself because he was dealing with a failing business in San Antonio, Texas. Mr. Durham testified that, once his son left the property, Mr. Smith went to the farm and took some of the equipment, including the tractor and the hay baler. Eventually, the bank foreclosed on the security interest. Representatives from the bank went to Mr. Smith and took all of the equipment except the tractor and hay baler, which Mr. Smith claimed belonged -to him. The bank sold the rest of the equipment to pay the debt.
Mr. Durham also relied on testimony from Danny Moser, president of First National Bank of Izard County. Mr. Moser stated that he relied on all of the documents in the record |4when he gave Mr. Durham a loan to purchase the property. Specifically, he relied on a financial statement from the Smiths, dated January 9, 2004, showing that the property (950 acres and a house) was valued at $750,000 and the bill of sale stating that the equipment being sold to Mr. Durham was free of any encumbrances. On cross-examination, however, Moser testified that he made the $750,000 loan based on 920 acres. He also described the controversy that arose when the bank repossessed on the equipment. Once the bank had a court order, Mr. Smith allowed the bank to take all of the equipment except for the tractor and hay baler. He understood that the bill of sale transferred ownership of every piece of equipment to Mr. Durham, but he would have questioned that understanding had he seen the language typed at the bottom of the second list of equipment.
The Smiths’ testimony differed from Mr. Durham’s in several respects. First, Mr. Smith denied representing that he owned one thousand acres. He testified that he purchased 920 acres and that he sold 920 acres more or less to Mr. Durham. Mr. Smith also stated that Mr. Durham knew the tractor and hay baler were being financed and that he asked Mr. Durham not to put those items on the equipment list because “it would get us in trouble.” He admitted that he kept the tractor and hay baler when the bank repossessed the other equipment and that he sold the items to pay what was owed on the items. Mr. Smith claimed that the $7025 check from Mr. Durham was to reimburse him for the payment he made on the tractor. On cross-examination, he stated that he and Mr. Durham had a “gentlemen’s | .¡¡agreement” requiring him (Mr. Smith) to transfer title to the tractor and hay baler once Mr. Durham paid it off.
The court ruled from the bench. It stated that Mr. Durham bought the property in gross, not by the acre, and that he was stuck with that purchase. The court found that Mr. Durham had failed to prove that he was damaged as a result of the sale. As for the tractor and hay baler, the court agreed that Mr. Smith took those items. But it also found that the parties likely did not want the bank to know that there was debt on those pieces of property. It also was not persuaded that Mr. Durham paid the $7025 simply because of his friendship with the Smiths. Rather, the court opined that Mr. Durham had agreed to make that payment and that the bank was not supposed to know about it. Relying on the testimony that Mr. Smith sold the tractor and hay baler for the payoff, the court found that the Smiths were not placed in a better position as a result of this transaction, and it denied Mr. Durham’s conversion claim on these two pieces of property.
Mr. Durham presents two issues to this court. First, he challenges the finding that he was not damaged by the sale of the property. He asserts that the circuit court erred in finding that the transaction was a sale in gross without considering other facts suggesting fraud, misrepresentation, or gross mistake. Second, he argues that the circuit court erred in not awarding damages for conversion of the tractor and hay baler. He contends that the court should not have considered an unjust-enrichment test to determine the measure of damages.
| ^Standard of Review
We review a circuit court’s findings of fact after a bench trial under the clearly erroneous standard. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. In this review, we view the evidence and all inferences therefrom in a light most favorable to the Smiths (the appellees). But we give no deference to the circuit court’s conclusion on a question of law.
Land-Sale Contract
Though Mr. Durham’s point on appeal states in part that the circuit court erred in finding that the contract was for the sale of land “in gross,” the crux of his argument is that the circuit court erred in not determining whether the deficiency in the acreage was the result of fraud, misrepresentation, or gross mistake. He relies on the evidence suggesting that he agreed to purchase almost one thousand acres and his testimony that he would not have signed the settlement statement had he known that he was only receiving 920 acres.
The evidence shows that Mr. Durham purchased the land in question in gross, not by the acre. When a seller conveys a specific tract of land described by metes and bounds, with 17words signifying the acreage more or less, the contract is a contract in gross — not by the acre. If the acreage is less than that stated in the contract, the right to relief must be founded upon fraud, misrepresentation, or gross mistake. Absent fraud, however, the buyer takes the risk of the quantity. When determining a right to damages, the law looks to all facts tending to show the intent of the parties and determines whether the discrepancy was of such magnitude that the parties would not have executed the contract if they knew the true facts.
The discrepancy between the acreage listed in the contract and the actual acreage, by itself, is not sufficient to establish fraud. To establish fraud, Mr. Durham had to prove that (1) the Smiths misrepresented the acreage, (2) the Smiths either knew that they were | ¿misrepresenting the acreage or had insufficient evidence upon which to make the representation, (3) the Smiths intended to induce him to act or not act, (4) he justifiably relied on the Smiths’ misrepresentation, and (5) he suffered damages as a result. The exhibits entered into evidence showed that Mr. Durham was purchasing less than one thousand acres. Mr. Durham relies on his testimony that Mr. Smith represented that the property was one thousand acres. Mr. Smith, however, denied that testimony, and our standard of review requires us to defer to Mr. Smith’s testimony. Further, Mr. Durham was familiar with the property, and his own testimony established that he, not Mr. Smith, made the offer to buy the property. Finally, other than Mr. Durham’s testimony, the record contains no evidence that the property was worth less than the contract price at the time the parties closed on the sale, even with the discrepancy in the acreage. Mr. Durham failed to establish sev eral of the elements of fraud. Thus, the circuit court’s decision that Mr. Durham failed to establish damages from the sale of the property is not clearly erroneous. We affirm on this point.
Conversion of the Tractor and Hay Baler
Mr. Durham also alleges that the circuit court erred in not granting him damages for conversion of the tractor and hay baler. He notes that the circuit court found that the Smiths wrongfully took the equipment, but he argues that it erred when it denied him benefits upon finding that the Smiths were not put in a better position as a result of the conversion. The | ¡¡Smiths assert that no conversion occurred and that they were allowed to repossess the tractor and hay baler when Mr. Durham failed to pay for it. We agree with Mr. Durham.
First, the circuit court found that a conversion did occur. One commits conversion when he or she wrongfully commits a distinct act of dominion over the property of another that is inconsistent with the owner’s rights. The intent required is not conscious wrongdoing but rather an intent to exercise dominion or control over the goods in a way inconsistent with the plaintiffs rights. Here, the circuit court found that the Smiths wrongfully took the property. Contrary to their argument, nothing in the circuit court’s ruling suggests that it thought the Smiths were entitled to repossess the tractor. Even though there was an agreement for Mr. Durham to assume that debt, the Smiths failed to present evidence estáb-lishing a right of repossession in the event that Mr. Durham failed to pay that debt.
More important, the circuit court spoke in terms of whether the Smiths were put in a better position as a result of the conversion. But the proper measure of damages is the fair market value of the property at the time and place of conversion. Fair market value is the price a piece of property would bring between a willing seller and a willing buyer in the open | inmarket after negotiations. In finding that the Smiths were not unjustly enriched by the conversion, the circuit court appeared to be denying damages on what was equitable. But this was clearly wrong. Mr. Durham was entitled to whatever the tractor and hay baler were worth at the time of conversion. Had the court found that the Smiths were entitled to some type of offset and that the offset was worth more than the value of the converted property, then it would have been justified to find that Mr. Durham had not been damaged. Absent those findings, however, the circuit court was wrong to deny damages on an unjust-enrichment theory. Accordingly, we reverse the circuit court on this point and remand for reconsideration of damages for conversion.
Affirmed in part; reversed and remanded in part.
VAUGHT, C.J., agrees.
PITTMAN, J., concurs.
. First Nat’l Bank of Izard County v. Garner, 86 Ark.App. 213, 167 S.W.3d 664 (2004).
. Id.
. Murphy v. City of W. Memphis, 352 Ark. 315, 101 S.W.3d 221 (2003).
. Id.
. Ryan v. Batchelor, 95 Ark. 375, 129 S.W. 787 (1910).
. Id.
. Hays v. Hays, 190 Ark. 751, 81 S.W.2d 926 (1935); Harris v. Milloway, 9 Ark.App. 350, 660 S.W.2d 174 (1983).
. Hays, supra; Burk v. Hefley, 32 Ark.App. 133, 798 S.W.2d 109 (1990).
. As noted by the Smiths, Arkansas courts have denied relief in cases where the deficiency was greater than that in this case. See Birch-Brook, Inc. v. Ragland, 253 Ark. 161, 485 S.W.2d 225 (1972) (7.743-acre discrepancy out of 89.293-acre contract). The court in Birch-Brook noted many other cases where a court denied relief due to a deficiency in acreage. See Young v. Bradshaw, 224 Ark. 467, 274 S.W.2d 466 (1955) (deficiency of 73 acres out of 200 acres); Bell v. State Nat’l Bank, 158 Ark. 640, 239 S.W. 19 (1952) (deficiency of 94 acres out of 1120 acres); Gilbertson v. Clark, 175 Ark. 1118, 1 S.W.2d 823 (1928) (deficiency of 19 acres out of 71 acres); Daoust v. Sharum, 163 Ark. 662, 260 S.W. 709 (1924) (deficiency of 22 acres out of 320 acres); Mobbs v. Burrow, 112 Ark. 134, 165 S.W. 269 (1914) (deficiency of 53 acres out of 564.85 acres). See also Ryan, supra (deficiency of 25 acres out of 72 acres); Burk, supra (deficiency of 7.65 acres out of 19.65 acres).
. See, e.g., Joplin v. Joplin, 88 Ark.App. 190, 196 S.W.3d 496 (2004).
. Buck v. Gillham, 80 Ark.App. 375, 96 S.W.3d 750 (2003).
. Id.
. See Mercedes-Benz Credit Corp. v. Morgan, 312 Ark. 225, 850 S.W.2d 297 (1993) (reiterating the right of the creditor to repossess collateral upon default if he or she can do so without breaching the peace).
. Buck, supra.
. Id.
. See id. | [
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M. MICHAEL KINARD, Judge.
|! Steven Ray Skomp appeals from his conviction by a Bradley County jury on one count of abuse of an impaired person, D felony. On appeal, appellant challenges the sufficiency of the evidence to support his conviction. We affirm the judgment of the trial court.
On July 9, 2008, the State filed an amended felony information in which it charged appellant, Curtis Klines, Susie Klines, and Charles Skomp with one count each of abuse of an impaired person, B felony, and first-degree false imprisonment. Prior to trial, the State withdrew the first-degree false-imprisonment charge. At trial, Jeremy Chapman, who worked as a patrolman for the Warren Police Department in April and early May of 2008, testified that he was called to a hospital to take a report from Brenda Klines. After he spoke with Brenda, he contacted the Arkansas Department of Human Services (DHS). He then ^accompanied workers from DHS to the Klines residence. Chapman was present when the DHS workers interviewed the defendants. According to Chapman, appellant told the workers that he would make Brenda stand up against the wall on the tips of her toes and stretch her arms out as far as she could when she took his candy or his cell phone. Chapman testified that the workers asked him to take into evidence a piece of wood and a belt that were found in the home.
Mark Wargo, who is a licensed psychological examiner, performed a psychological evaluation of Brenda Klines. Wargo testified that when he evaluated Brenda, she appeared older than her stated age. According to Wargo, Brenda also appeared undernourished, with low body weight and multiple bruises on her body. Wargo stated that he believed Brenda’s skin sagged more than one would expect for a forty-nine-year-old female. Wargo testified that his examination found that Brenda met the criteria for moderate mental retardation. Wargo stated that Brenda functioned at a second-grade educational level. Wargo testified that Brenda told him the bruises occurred when she tripped over a bucket and fell; however, Wargo felt that the bruising covered more areas of her body than would have been caused by a single incident.
Shawn Hildreth, a criminal investigator with the Warren Police Department, testified that Susie Klines told him that Brenda would be made to stand in the corner facing the wall for long periods of time, up to two hours, and sometimes on one leg, for taking food and not cleaning the residence thoroughly. Hildreth testified that he attempted on one occasion during |shis investigation to stand on one leg, and was only able to do so for approximately thirteen minutes. Susie Klines also told Hil-dreth that the trailer in which Brenda stayed at night was sometimes locked in order to keep Brenda from coming out and taking food and to keep Brenda’s sister out of the trailer. Susie then stated that they would only lock the trailer when they would leave to go run errands. Appellant also told Hildreth that Brenda would be forced to stand in the corner for up to an hour, sometimes on one leg. Appellant also said that he assumed Brenda’s trailer was locked at night. Appellant told Hil-dreth he was not aware of Brenda ever falling down. Hildreth testified that all of the family members he interviewed said that Brenda’s trailer had no electricity or running water, that Brenda had been provided a five-gallon bucket to use as a toilet, and that she had a box fan to keep cool that was powered by an extension cord running from the house.
Denise Wright Smith, who was one of the DHS workers who interviewed the other adults in the Klines household, testified that when she saw Brenda Klines, she observed “a very malnourished, frail, thin woman, quite scary looking.” Curtis Klines told the workers that if Brenda got into food or other things they did not want her to get into, they disciplined her by “whupping” her. He claimed that the board and belt were used to discipline the family’s cat. Both of the Klineses told the workers that Brenda had behavior problems and would sometimes get out of control. They also said that Brenda did not need to eat sugar or salt due to health conditions. The refrigerator in Brenda’s trailer was empty and the bathroom 14door was screwed shut. Charles Skomp told the workers that they would have Brenda stand in a corner on her tiptoes, and appellant confirmed that.
Dr. David Foscue testified that Brenda had been a patient of his for several years. Dr. Foscue testified that Brenda would present with malnutrition and some dehydration and that he addressed those issues with the Klineses. Dr. Foscue stated that Brenda’s bruising would not have happened from a fall. Dr. Foscue could not determine exactly what happened to Brenda, but he was adamant that it was not a fall. Dr. Foscue also determined that Brenda’s injuries were not the result of a seizure. Dr. Foscue testified that Brenda told him that she did not want to go home because she would “get a whupping.” Dr. Foscue further testified that Brenda told her that “Mamma or Daddy” would “whup” her with a belt or a paddle and that “the boys” would hold her down when she got a “whupping.” The last time that it happened was a week before Brenda went into the hospital.
Brenda’s sister, Louise Pitts, testified that Brenda came to live with her after she got out of the hospital. Pitts testified that when Brenda first came to her home, Brenda was terrified and had nightmares. She also stated that Brenda ate constantly. According to Pitts, Brenda weighed approximately 100 pounds when she first came to stay with her and 145 pounds a few weeks prior to the trial.
After the State rested its case, appellant made a motion for directed verdict. Appellant argued in his motion that the State failed to prove the following elements of the offense with which he was charged: 1) that Brenda was an adult; 2) that Brenda was unable to protect |5herself from abuse; 3) that appellant was Brenda’s caregiver; 4) that appellant abused Brenda; 5) that any abuse caused injury to Brenda; and 6) that Brenda sustained serious injury. The trial court ruled that, viewing the evidence in the light most favorable to the State, appellant assumed the position of caregiver to Brenda, Brenda was an impaired or endangered person, and Brenda sustained physical injury. The court agreed with appellant that the State failed to prove that any abuse resulted in serious physical injuries, so it reduced the charge from a B felony to a D felony. Following the guilt phase of the trial, the jury returned a verdict of guilty on the charge of abuse of an impaired person, D felony. In a judgment and commitment order entered May 7, 2009, the trial court sentenced appellant to seventy-two months’ imprisonment in the Arkansas Department of Correction. Appellant filed a timely notice of appeal on May 19, 2009.
Appellant argues on appeal that the trial court erred by denying his motion for a directed verdict. Motions for directed verdict and motions to dismiss are treated as challenges to the sufficiency of the evidence. Wertz v. State, 374 Ark. 256, 287 S.W.3d 528 (2008). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id.
| ^Appellant was convicted of abuse of an impaired person, D felony, in violation of Arkansas Code Annotated section 5-28-103 (Repl.2006), which states in pertinent part as follows:
(a) It is unlawful for any person or caregiver to abuse, neglect, or exploit any endangered person or impaired person subject to protection under a provision of this chapter.
(b)(1) If the abuse causes serious physical injury or a substantial risk of death, any person or caregiver who purposely abuses an endangered person or an impaired person is guilty of a Class B felony.
(2) If the abuse causes physical injury, any person or caregiver who purposely abuses an adult endangered person or an adult impaired person in violation of a provision of this chapter is guilty of a Class D felony.
(c)(1) Any person or caregiver who neglects an adult endangered person or an adult impaired person in violation of a provision of this chapter, causing serious physical injury or substantial risk of death, is guilty of a Class D felony. (2) Any person or caregiver who neglects an adult endangered person or an adult impaired person in violation of a provision of this chapter, causing physical injury, is guilty of a Class B misdemeanor.
(d) Any person or caregiver who abuses an adult endangered person or an adult impaired person is guilty of a Class B misdemeanor.
Appellant’s first argument on appeal is that the State failed to prove that he was a caregiver of Brenda, which he contends is necessary for a conviction under section 5-28-103. In support of his argument, appellant cites our supreme court’s decision in Law v. State, 375 Ark. 505, 292 S.W.3d 277 (2009). The State argues that appellant is misreading the holding in Law, and that the holding in that case does not apply here. We agree with the State. In Law, the supreme court did hold that the State was required to prove that the defendant in 17that case was a caregiver in order to sustain a conviction. The key distinction between Law and this case is that the supreme court specifically determined that the defendant in Law was convicted of neglect of an impaired person under section 5-28-103(c)(1), while appellant was convicted of abuse of an impaired person under section 5 — 28—103(b)(2). Neglect is defined as
(A) An act or omission by an endangered person or an impaired person, for example, self-neglect; or
(B) A purposeful act or omission by a caregiver responsible for the care and supervision of an adult endangered person or an adult impaired person that constitutes negligently failing to:
(i) Provide necessary treatment, rehabilitation, care, food, clothing, shelter, supervision, or medical services to an adult endangered person or an adult impaired person;
(ii) Report a health problem or a change in a health problem or a change in the health condition of an adult endangered person or an adult impaired person to the appropriate medical personnel;
(iii) Carry out a prescribed treatment plan; or
(iv) Provide a good or service necessary to avoid physical harm, mental anguish, or mental illness as defined in regulations promulgated by the Office of Long-Term Care of the Division of Medical Services of the Department of Health and Human Services to an adult long-term care facility resident.
Ark.Code Ann. § 5-28-101(11) (Repl.2006). Therefore, only someone who is a caregiver can “neglect” an impaired person under section 5-28-103. Abuse is defined as
(A) Any purposeful and unnecessary physical act that inflicts pain on or causes injury to an endangered person or an impaired person;
(B) Any purposeful or demeaning act that a reasonable person would believe subjects an endangered person or an impaired person, regardless of age, ability to comprehend, 18or disability, to ridicule or psychological injury in a manner likely to provoke fear or alarm;
(C) Any purposeful threat that a reasonable person would find credible and nonfrivolous to inflict pain on or cause injury to an endangered person or an impaired person except in the course of medical treatment or for justifiable cause; or
(D) With regard to any adult long-term care facility resident by a caregiver, any purposeful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish.
Ark.Code Ann. § 5-28-101(1) (Repl.2006). The definition of abuse does not contain the requirement that the person committing the abuse be a caregiver, except if the victim is a resident in an adult long-term care facility. Brenda was not a resident in an adult long-term care facility. Therefore, because appellant was convicted of abuse and not neglect, the supreme court’s decision in Law does not apply. The State was not required to prove that appellant was a caregiver to Brenda.
Even if the State were required to prove appellant was a caregiver, it presented substantial evidence on that point. Caregiver is defined as “a related or unrelated person, owner, agent, high managerial agent of a public or private organization, or a public or private organization that has the responsibility for the protection, care, or custody of an adult endangered person or an adult impaired person as a result of assuming the responsibility voluntarily, by contract, through employment, or by order of the court.” Ark.Code Ann. § 5-28-101(3) (Repl.2006). There was testimony that appellant lived in the same household as Brenda and that he claimed he would punish her “for her own good” because they “could not beat her,” although there was evidence that she was held down and received 19“whuppings” with a belt and paddle. This evidence was sufficient for the jury to conclude that appellant was voluntarily acting as a caregiver for Brenda.
Appellant’s second argument on appeal is that the State failed to prove that he abused Brenda. However, the State produced evidence that appellant would force Brenda to stand for long periods of time, sometimes on one leg, an act Shawn Hildreth testified caused him pain. In addition, the State produced evidence that appellant assisted in the Klineses’ beatings of Brenda. This was sufficient evidence for the jury to conclude that appellant committed acts that would fall under the definition of abuse.
Appellant’s third point on appeal is that the State failed to prove that any of his actions caused physical injury to Brenda. As noted above, Dr. Foscue testified that Brenda’s extensive bruising could not have occurred in the manner she told him it did. In addition, Brenda told Dr. Fos-cue that appellant assisted the Klineses in beating her. In determining whether a physical injury exists, a jury may rely upon its common knowledge, experiences, and observations in life to make this determination. Linn v. State, 84 Ark.App. 141, 138 S.W.3d 407 (2003). The State produced sufficient evidence to allow the jury to conclude that appellant’s actions resulted in physical injury to Brenda.
Appellant’s final argument is that the State failed to prove that he was an accomplice to any abuse of Brenda. The State contends that this argument cannot be addressed on appeal because it was not part of appellant’s directed-verdiet motion. However, the accomplice-liability argument is tied into appellant’s overall argument in his motion that he |indid not cause injury to Brenda. Nevertheless, appellant does not clearly state in his argument why a determination of accomplice liability is necessary, as appellant was charged as a principal, and the jury verdict does not specify that appellant was found guilty as an accomplice as opposed to as a principal. In any event, there is no merit to this argument. There is no distinction between principals on the one hand and accomplices on the other as far as criminal liability is concerned. Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007). When two people assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Id. One cannot disclaim accomplice liability simply because he or she did not personally take part in every act that went to make up the crime as a whole. Id. As indicated above, there was testimony that appellant held Brenda down while the Klineses beat her. The treatment of the victim by the defendants was considered to be abuse by the jury, and the evidence submitted by the State was sufficient for the jury to conclude that appellant was criminally liable for those acts, whether he was a direct participant or not.
Affirmed.
GLADWIN and GLOVER, JJ„ agree. | [
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JIM GUNTER, Justice.
| Appellant was found guilty of underage driving under the influence and now appeals the denial of his motion to suppress the results of his breathalyzer test. On appeal, he argues that the arresting officer was acting outside of his territorial jurisdiction when he transported appellant to a different county to perform the breathalyzer test and that the test results were thus unlawfully obtained. We accepted certification of this case because it involves an issue of first impression and needing clarification; therefore, this court has jurisdiction pursuant to Ark. Sup.Ct. R. 1 — 2(d). We affirm the denial of the motion to suppress.
On August 8, 2010, Deputy Shawn Harris of the Pope County Sheriffs Office initiated a traffic stop on a vehicle driven by appellant after observing the vehicle travel onto the shoulder and cross the center line. Harris detected an odor of intoxicants on appellant’s breath and observed that appellant’s eyes were bloodshot and slightly glassy. After performing a series of field sobriety tests, Harris placed appellant, who was nineteen years old at the time, under |2arrest for suspicion of underage driving under the influence (DUI). Harris then transported appellant to the Dardanelle Police Department, in Yell County, where Harris read appellant his DUI statement of rights. Appellant agreed to take a breathalyzer test, and the result revealed a blood-alcohol level of .065. Appellant was later found guilty of underage DUI in the Pope County District Court and timely appealed to the Pope County Circuit Court.
On May 24, 2011, appellant filed a motion to suppress. In the motion, appellant argued that after his arrest, he was transported from Pope County to Yell County, which was outside of Harris’s jurisdiction. Appellant argued that he was illegally detained in Yell County and asked the court to suppress all evidence, namely the results of the breathalyzer test, stemming from this illegal detention. In response, the State argued that Arkansas law did not prevent a certified law-enforcement officer from transporting a lawfully arrested person outside the officer’s territorial jurisdiction to obtain evidence, or in the alternative, that appellant had waived any argument regarding the seizure of this evidence by consenting to the breathalyzer test.
A hearing on the motion to suppress was held on July 18, 2011. At the hearing, Harris explained that he transported appellant to the Dardanelle Police Department because he was not certified to operate the new blood-alcohol content (BAC) analysis machine, the BAC Intoxilyzer, which had been installed at the Pope County Sheriffs Office and the Russellville |sPolice Department. Harris testified that these were the only two BAC analysis machines located in Pope County, and because he had only recently returned from medical leave, he had not yet been certified to operate the machines. Harris also explained that at the time of the arrest, which was approximately 2:33 a.m., there was only one other officer working, who was busy on another call, so there was no other option but to transport appellant to another county to conduct the BAC test. Harris testified that once he and appellant arrived at the Dardanelle Police Department, he read appellant his DUI statement of rights, appellant understood his rights, and appellant agreed to the test.
On cross-examination, Harris admitted that he had not checked with the Russell-ville Police Department to see whether it had an officer available that could administer the BAC test to appellant. He also agreed that St. Mary’s Hospital, which is in Pope County, could have performed a blood or urine test and that a urine sample could have been taken and sent to the State Crime Lab for testing. But Harris clarified that the standard policy is to use a BAC machine.
After hearing arguments from counsel, the court took the matter under advisement. In an order filed July 26, 2011, the court denied the motion to suppress and explained that “Deputy Harris was justified under these circumstances in transporting Defendant out of his jurisdiction and did not lose custody. The test had to be given without delay and in accordance with Health Department regulations.” Thereafter, on September 12, 2011, a bench trial was held, at which appellant was found guilty of underage DUI. In a judgment Rfiled September 14, 2011, appellant was sentenced to pay costs of $300, to pay a fíne of $250, to perform twenty hours of community service, and to attend an alcohol-safety program for underage drivers. Appellant filed a timely notice of appeal on October 11, 2011.
On appeal, appellant contends that the circuit court erred in denying his motion to suppress. In reviewing the denial of a motion to suppress evidence, this court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). A finding is clearly erroneous, even if there is evidence to support it, when the appellate court, after review of the entire evidence, is left with the definite and firm conviction that a mistake has been made. Lee v. State, 2009 Ark. 255, 308 S.W.3d 596. We defer to the superiority of the circuit judge to evaluate the credibility of witnesses who testify at a suppression hearing. Montgomery v. State, 367 Ark. 485, 241 S.W.3d 753 (2006).
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const, amend. V. The United States Supreme Court has held that the compulsory administration of a blood test is subject to the constraints of the Fourth Amendment, see Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and has further held that “subjecting a person to a breathalyzer test, which generally requires the production of alveolar |sor ‘deep lung breath for chemical analysis, implicates similar concerns about bodily integrity and, like the blood-alcohol test we considered in Sehmerber, should also be deemed a search.” Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 616-17,109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (internal citations omitted).
The issue in this case is whether the breathalyzer test administered by Deputy Harris, outside of his territorial jurisdiction, was an unlawful search under the Fourth Amendment. The authority of municipal corporations to exercise powers beyond their territorial limits must be derived from state statute, and the Arkansas General Assembly has codified four instances in which local police officers are authorized to act outside their territorial jurisdiction: (1) “fresh pursuit” cases, see Ark.Code Ann. § 16-81-301 (Repl.2005); (2) when the officer has a warrant for arrest, see Ark.Code Ann. § 16-81-105 (Repl.2005); (3) when a local law enforcement agency requests an outside officer to come into the local jurisdiction, and the outside officer is from an agency that has a written policy regulating its officers when they act outside their jurisdiction, see Ark. Code Ann. § 16 — 81—106(c)(3)—(4) (Supp. 2011); (4) when a county sheriff requests that a peace officer from a contiguous county come into that sheriff’s county and investigate and make arrests for violations of drug laws, see Ark.Code Ann. § 5-64-705 (Repl.2005). See also Perry v. State, 303 Ark. 100, 794 S.W.2d 141 (1990).
In the present case, appellant contends that none of these instances are applicable, that Deputy Harris’s jurisdiction ended when he took appellant out of Pope County and into Yell County, that his subsequent detention in Yell County was unlawful, and that the evidence obtained during that unlawful detention should have been suppressed. In support, appellant Incites to Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), which makes clear that the Fourth Amendment applies to both “arrests” and “investigatory detentions.” Id. at 727, 89 S.Ct. 1394. The relevant facts from Davis are as follows:
[A] rape occurred on the evening of December 2, 1965, at the victim’s home in Meridian, Mississippi. The victim could give no better description of her assailant than that he was a Negro youth. Finger and palm prints found on the sill and borders of the window through which the assailant apparently entered the victim’s home constituted the only other lead available at the outset of the police investigation. Beginning on December 3, and for a period of about 10 days, the Meridian police, without warrants, took at least 24 Negro youths to police headquarters where they were questioned briefly, fingerprinted, and then released without charge. The police also interrogated 40 or 50 other Negro youths either at police headquarters, at school, or on the street. Petitioner, a 14-year-old youth who had occasionally worked for the victim as a yardboy, was brought in on December 3 and released after being fingerprinted and routinely questioned. Between December 3 and December 7, he was interrogated by the police on several occasions — sometimes in his home or in a car, other times at police headquarters. This questioning apparently related primarily to investigation of other potential suspects.
On December 12, the police drove petitioner 90 miles to the city of Jackson and confined him overnight in the Jackson jail. The State conceded on oral argument in this Court that there was neither a warrant nor probable cause for this arrest. The next day, petitioner, who had not yet been afforded counsel, took a lie detector test and signed a statement. He was then returned to and confined in the Meridian jail. On December 14, while so confined, petitioner was fingerprinted a second time. That same day, these December 14 prints, together with the fingerprints of 23 other Negro youths apparently still under suspicion, were sent to the Federal Bureau of Investigation in Washington, D.C., for comparison with the latent prints taken from the window of the victim’s house. The FBI reported that petitioner’s prints matched those taken from the window. Petitioner was subsequently indicted and tried for the rape, and the fingerprint evidence was admitted in evidence at trial over petitioner’s timely objections that the fingerprints should be excluded as the product of an unlawful detention.
Id. at 722-23, 89 S.Ct. 1394. The fingerprint evidence that was used at trial was obtained on December 14, while petitioner was still in detention following his December 12 arrest. The State, although |7conceding that the arrest on December 12 and subsequent detention were based on neither a warrant nor probable cause, and were therefore constitutionally invalid, nevertheless argued that petitioner’s conviction should be affirmed because the December 3 fingerprints were validly obtained. The United States Supreme Court disagreed, however, that the December 3 prints were validly obtained, holding that the detention on December 3, while investigatory in nature, was still subject to Fourth Amendment protections:
[N]o attempt was made here to employ procedures which might comply with the requirements of the Fourth Amendment: the detention at police headquarters of petitioner and the other young Negroes was not authorized by a judicial officer; petitioner was unnecessarily required to undergo two fingerprinting sessions; and petitioner was not merely fingerprinted during the December 3 detention but also subjected to interrogation.
Id. at 728, 89 S.Ct. 1394.
In the present case, appellant compares his case to Davis and contends that “[t]he only difference in Davis and this case, as far as the unlawful detention is concerned, is that instead of fingerprints being obtained during the unlawful detention, the evidence against Appellant was obtained as a result of a breathalyzer test.” Appellant also argues that, like the officers in Davis, the officer in this case made no attempt to comply with procedures as required by the Fourth Amendment.
Appellant also cites State v. Marran, No. 94-0525A, 1996 WL 937019 (R.I.Super. Dec. 6, 1996), an unpublished opinion from the Rhode Island Superior Court. In Marran, the defendant was stopped for driving the wrong way on a one-way street, and the officer suspected that the defendant was driving Under the influence of alcohol. The defendant was 18taken into custody and transported to the Newport police station, where he was read his rights and consented to a breathalyzer test. The officer administered a breathalyzer test at 1:03 a.m., but the results were invalid. The officer waited one minute and administered another test, but was again unsatisfied with the result. (It was later determined that there was a problem with the Newport Police Department’s breathalyzer machine.) The officer transported the defendant to the Middletown Police Department and administered another breathalyzer test over the defendant’s objections. The third breathalyzer test was administered at 1:40 a.m.; at 2:47 a.m., a fourth and final breathalyzer test was administered.
The defendant was later found guilty in district court of driving under the influence and the one-way-street infraction. The Rhode Island Supreme Court, however, found that in light of the absence of a required one-way-street sign, the defendant could not have committed the one-way-street infraction. Regarding the DUI charge, the Superior Court held that because the defendant “was stopped for committing what has been determined to be a lawful act by our Supreme Court, the exclusionary rule applies in the instant case and Marran’s motion to suppress is hereby granted.” Id. at *3. Relevant to the instant case, the court also held that the breathalyzer-test results obtained in Mid-dletown should be suppressed as the “product of an unlawful detention of Mar-ran outside of the jurisdiction of that law enforcement agency.” Id. at *8. The court found that there were reasonable alternative tests available and that no emergency existed; thus, the Newport Police Department’s authority ceased to exist over the defendant as soon as he was transported outside the city limits of | ¡Newport and into Middletown. The court concluded, “The. strong public policy of jurisdictional integrity placed an affirmative duty upon the Newport Police Department to exhaust all reasonably available alternative testing options within the city limits of Newport before Marran could be taken to Middle-town for additional breathalyzer testing.” Id. at *10.
Finally, appellant also cites Thomas v. State, 65 Ark.App. 134, 985 S.W.2d 752 (1999), which presented the following facts:
On February 15, 1997, Trooper Barry Saffold of the Arkansas State Police was contacted on his radio by Chief McBride, the chief of police for the City of Gould, Arkansas. Chief McBride informed Trooper Saffold that he had received a report of a driver that was possibly intoxicated headed northbound on U.S. Highway 65. The officers surmised that the reported vehicle was somewhere between them. Trooper Saffold proceeded south from Grady while Chief McBride traveled north from Gould. Chief McBride was the first officer to make contact with the red passenger car driven by appellant. He stopped appellant’s vehicle outside the city limits of Gould, approximately halfway between Gould and Grady. When Trooper Saffold arrived, Chief McBride had appellant outside his vehicle, and according to the testimony of Trooper Saffold, appellant was not free to leave.
Trooper Saffold stated that he detected the odor of intoxicants and administered numerous sobriety tests, which appellant failed. Appellant was transported to Gould where he registered .14 on a Breathalyzer test. He was subsequently charged with driving while intoxicated.
Id. at 135-36, 985 S.W.2d at 753. Because the State acknowledged that Chief McBride stopped and detained the appellant outside his territorial jurisdiction without a warrant, and the stop and detention did not fit any of the four situations wherein an officer may arrest outside his territorial jurisdiction, the court of appeals reversed the denial of the appellant’s motion to suppress.
In conclusion, appellant argues that under Ark. R.Crim. P. 4.6, any arrested person Imrnust be taken promptly to a jail, police station, or other similar place, and can be taken to some other place only if requested by the arrested person or if necessary to have the arrested person identified. Appellant asserts that in his case, he did not ask to be taken to Yell County, nor was it necessary for his identification. Appellant also contends that Harris had “more than sufficient time and opportunity” to follow the law and that there was no urgency presented. Appellant concludes that there is “nothing in the law of the State of Arkansas which authorizes an individual to be taken outside the jurisdictional limits of the place of his arrest.”
In response, the State argues that the breathalyzer test was a valid search that was performed (1) with appellant’s consent and (2) pursuant to the “valid exigent circumstance of appellant’s falling blood alcohol content.” First, the State explains that under the implied-consent provision of the Underage DUI Law, any underage person who operates a motor vehicle or is in actual physical control of a motor vehicle is deemed to have given consent to a chemical test of his or her blood, breath, or urine for the purpose of determining the alcohol content of his or her breath or blood if the underage person is arrested for any offense alleged to have been committed while under the influence of alcohol. See Ark.Code Ann. § 5 — 65—309(a)(1) (Repl. 2005). Further, appellant also consented by signing the consent form before the breathalyzer test was given.
Second, the State argues that the search was not unreasonable because Harris had a reasonable explanation for performing the breath test in Yell County and time was a valid exigent circumstance in this case. As the circuit court explained in its order, the test had to | nbe given “without delay,” and the State contends that this ruling comports with the United States Supreme Court case law as well as this court’s case law. See Stephens v. State, 320 Ark. 426, 898 S.W.2d 435 (1995) (noting that this court has repeatedly observed that blood-alcohol content decreases with the passage of time). The State observes that appellant’s argument is based solely on the location of the search; however, the State asserts that the fact that the search took place in a neighboring county does not render the search per se unreasonable.
The State also distinguishes the case law cited by appellant by noting that the cases that discuss the four instances authorizing a police officer to act outside his or her jurisdiction, namely Perry, supra, and Thomas, supra, are inapplicable, because the enumerated instances pertain only to an officer’s authority to apprehend an offender. Contrary to appellant’s interpretation, the State argues, the word “act” as it is used in Perry is a synonym for “arrest.” The State also distinguishes Davis, supra, by asserting that the “warrantless dragnet in Davis bears no resemblance to Appellant’s alcohol-impaired, late-night encounter with Deputy [Harris].”
We find no error in the circuit court’s denial of the motion to suppress. First, we note that appellant’s characterization of Davis is inaccurate, rendering his reliance on that case misplaced. In his brief, appellant describes Davis as follows: “Davis involved the detention of a defendant for the purposes of obtaining fingerprints. The evidence obtained as a result of the detention outside the jurisdictional limits of the arresting officer violated the Fourth | ^Amendment and the evidence so obtained was suppressed.” However, the fact that the officers drove the petitioner to another jurisdiction during his second detention is not discussed and does not appear to be a factor in the court’s decision. Thus, the holding in Davis has limited applicability in the present case.
Appellant’s interpretation of Perry and its progeny is likewise inaccurate. While Perry did use the word “act,” it is clear from the opinion that the court was referring to an officer’s authority to apprehend an offender. See Perry, 303 Ark. at 102, 794 S.W.2d at 142 (“A local peace officer acting without a warrant outside the territorial limits of the jurisdiction under which he holds office is without official power to apprehend an offender, unless he is authorized to do so by state statute.”). Similarly, the court of appeals case cited by appellant, Thomas, refers to the “four instances where officers may arrest outside their territorial jurisdiction.” 65 Ark.App. at 136, 985 S.W.2d at 753 (emphasis added); see also Martinez v. State, 352 Ark. 135, 98 S.W.3d 827 (2003) (“arrest”); Arnett v. State, 342 Ark. 66, 27 S.W.3d 721 (2000) (“arrest”); Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997) (“apprehend”).
Finally, the Rhode Island case cited by appellant, Marran, also has limited applicability in the present case, because not only is it an unpublished opinion from a lower court, but also, the Rhode Island Supreme Court has declined to follow Marran’s reasoning. See State v. Hagan, 819 A.2d 1256 (R.I.2003). In Hagan, the defendant was arrested by members of the Portsmouth Police Department on suspicion of driving under the influence of alcohol and taken to the Portsmouth police station. Hagan consented to a chemical test; however, Officer |,¡¡Sullivan, the test operator, detected a problem with the breathalyzer machine. After notifying his supervisor of the problem, Sullivan was instructed to transport Hagan to the Mid-dletown Police Department and to use that department’s breathalyzer machine. At trial, Hagan argued that the Portsmouth police had no authority to retain custody of him after crossing the town line into Mid-dletown and that the breathalyzer test results obtained in Middletown should have been suppressed. The trial court, relying on Marran, granted the motion to sup press. In reversing, the Rhode Island Supreme Court explained:
[W]e consistently have drawn the distinction between an arrest of a suspect that must, both constitutionally and by statute, rest upon probable cause, from the circumstance in which a prisoner, already in lawful custody, is taken outside a municipality for legitimate law enforcement purposes.. In this case, Hagan had been lawfully arrested, based upon probable cause, and was in the legitimate custody of the Portsmouth police. It was only while acting in accordance with their duty to gather and preserve evidence for use at trial, that the officers drove Hagan to Middletown for a Breathalyzer test. We are thus satisfied that the Portsmouth police acted appropriately and did not relinquish lawful custody of their prisoner at the town line. This conclusion rests upon the distinction between- an arrest and seizure of a suspect outside a municipality’s borders — an authority that is limited in scope and recognized only in narrowly-defined circumstances — and the extraterritorial transport of a prisoner who is in lawful custody, for the performance of legitimate law enforcement duties, which we sanction today.
Although well-reasoned, the Superior Court decision in Marran is not binding upon this Court and we decline to follow it. ■ As a matter of public policy, whether an officer’s responsibilities include an extraterritorial transport for access to a blood-alcohol testing machine or any other duty in connection with an arres-tee who is in lawful custody; we decline to handcuff the state’s law enforcement officials in the performance of their legitimate duties. Most notably under the circumstances now before us, in which the’ officer acted in apparent good faith, upon consent, and in light of the urgency of obtaining blood alcohol evidence before it is metabolized in the blood, we are satisfied that Sullivan acted pursuant to his lawful authority.
819 A.2d at 1260-61. We cite with approval the reasoning employed by the Rhode Island |14Supreme Court in Hagan and hold that Deputy Harris’s actions in the present case were both reasonable and lawful. Thus, we affirm the denial of the motion to suppress.
Affirmed.
. Pursuant to Ark.Code Ann. § 5~65-303(b) (Repl.2005), it is unlawful for an underage person to operate or be in actual physical control of a motor vehicle if the underage person has a blood-alcohol level of “two-hundredths (0.02) but less than eight-hundredths (0.08).” | [
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PHILLIP T. WHITEAKER, Judge.
|,Appellants Douglas Henson and Shannon Cooper-Henson had their parental rights to their children, S.H. and E.H., terminated by an order of the Pulaski County Circuit Court. On appeal, both argue — in separate briefs — that the circuit court’s order was not supported by clear and convincing evidence. We find no error and affirm.
I. Procedural History
This family has had an extensive history with the Arkansas Department of Human Services (DHS). This is the second time that S.H. and E.H. have been removed from the care of the appellants. The first removal occurred in April 2010 based on a finding of ^inadequate supervision and substance abuse. The circuit court adjudicated the children dependent-neglected and ordered numerous services for Shannon and Douglas, including drug and alcohol assessments and treatment. After S.H. and E.H. had been out of their parents’ custody for over a year and a half, the court returned custody to the parents in early 2012 and entered an agreed order to close the case.
Less than a year later, however, the second removal occurred. In February 2013, DHS filed a petition for ex parte emergency custody of S.H. and E.H., again for allegations of inadequate supervision, as well as criminal and drug activity by the appellants. DHS received a report stating that Shannon had dropped the children off with an intoxicated man and then stolen the man’s truck. DHS also received information that both Shannon and Douglas had been involved in a shoplifting, that Douglas had fled the scene, and that Shannon had been arrested and charged with theft by receiving. A methamphetamine pipe was also found in the truck that Shannon and Douglas had been driving. After Douglas was apprehended, he was charged with manufacturing methamphetamine, fleeing, and absconding.
The circuit court entered an ex parte order for emergency custody, finding that first contact with DHS arose during an emergency when preventative services could not be provided. The court noted that both parents had pending criminal charges, and “therefore, [DHS] is deemed to have made reasonable efforts to prevent or eliminate the need for ^removing the juveniles from the juveniles’ home.” The court subsequently made a probable-cause finding. Prior to adjudication, DHS filed a motion for no reunification services, asserting that there was little likelihood that services to the parents would result in successful reunification, citing its extensive history with the family and recent provision of services to the appellants.
The circuit court held a combined hearing on adjudication and DHS’s motion. The court adjudicated S.H. and E.H. dependent-neglected, finding specifically that the children had been subjected to neglect, in the form of failure to protect and inadequate supervision, as well as parental unfitness. The court also found by clear and convincing evidence that the motion for no reunification services should be granted.
DHS subsequently filed a petition for termination of parental rights, alleging that the children had been subjected to aggravated circumstances, in that a determination had been made by a judge that there was little likelihood that services to the family would result in successful reunification. Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a ){3 )(B )(i) (Repl.2009). DHS also alleged the “other factors or issues” ground found in Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) (Repl.2009), noting “new concerns” involving allegations that S.H. had seen Douglas naked and that the children had witnessed their parents having sexual relations.
The circuit court found by clear and convincing evidence that DHS had proved both the aggravated-circumstances and “other factors” grounds. The court also found that the children were adoptable and that the termination was in the children’s best interest. ^Accordingly, the court granted DHS’s motion to terminate Shannon and Douglas’s parental rights. Both Shannon and Douglas filed timely notices of appeal, and both now assert that there was insufficient evidence to support the circuit court’s decision.
II. DHS’s Procedural Argument
At the outset, we acknowledge DHS’s suggestion that Shannon and Douglas are procedurally barred from challenging the circuit court’s finding that they subjected the children to aggravated circumstances. DHS argues that this finding was originally made in the no-reunification-services order, which Shannon and Douglas could have appealed. Having failed to do so, DHS contends, they are barred from raising this issue on appeal. See, e.g., Lewis v. Ark. Dep’t of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005). We disagree.
Rule 6-9(a) of the Rules of the Arkansas Supreme Court sets out which orders are appealable in dependency-neglect cases, providing in pertinent part as follows:
(1) The following orders may be appealed from dependency-neglect proceedings:
(A) adjudication order;
(B) disposition, review, no reunification, and permanency planning order if the court directs entry of a final judgment as to one or more of the issues or parties based upon the express determination by the court supported by factual findings that there is no just reason for delay of an appeal, in accordance with Ark. R. Civ. P. 5Jp(b).
(C) termination of parental rights.
Ark. Sup.Ct. R. 6-9(a) (2013) (emphasis added). The circuit court here entered an order captioned “Adjudication/No Reunification Services Order,” with a finding of aggravated circumstances made in conjunction with the court’s finding that no further reunification [ ¿services would be provided. There is no language, however, either in this portion of the order or anywhere else in the order, comporting with Rule 6-9(a)(l)(B)’s requirement that the court include the equivalent of a Rule 54(b) certificate.
In Schubert v. Arkansas Department of Human Services, 2009 Ark. 596, at 5, 357 S.W.3d 458, 461, the supreme court stated that, “[pjursuant to Rule 6-9(a)(l)(B), disposition, review, [no reunification,] and permanency planning orders are only ap-pealable ... if the court enters an order in compliance with Ark. R. Civ. P. 54(b) (2009). Thus, not every order entered in a dependency-neglect case can be immediately appealed[.]” See also Stoliker v. Ark. Dep’t of Human Servs., 2012 Ark. App. 415, at 12-13, 422 S.W.3d 123, 130 (refusing to reach father’s arguments regarding circuit court’s disposition order where there was no Rule 54(b) certificate addressing that order). Thus, where, as here, there is no Rule 54(b) language, there is no final order from which Shannon and Douglas could have appealed on the no-reunification-services issue. Accordingly, Shannon and Douglas’s arguments are not procedurally barred, and we turn to the merits of their appeals.
III. Standard of Review
Our standard of review in cases involving the termination of parental rights is well established. Arkansas Code Annotated section 9-27-341(b)(3) requires an order terminating parental rights to be based upon clear and convincing evidence. First, section 9 — 27—341(b)(3) (A) requires a finding by clear and convincing evidence that termination is in the best interest of the juveniles, including consideration of the likelihood that they will be |fiadopted and the potential harm caused by returning custody of them to the parent. Next, the order terminating parental rights also must be based on a showing of clear and convincing evidence as to one or more of the grounds for termination listed in section 9 — 27—341(b)(3)(B). The grounds relied on by the trial court in this case were as follows:
(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent return of the juvenile to the custody of the parent.
(ix)(a) The parent is found by a court of competent jurisdiction ... to:
(3 ){A) Have subjected any juvenile to aggravated circumstances.
(B) “Aggravated circumstances” means:
(i) A ... determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification[.]
Clear and convincing evidence is that degree of proof that will produce in the factfinder a firm conviction as to the allegation sought to be established. Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). When the burden of proving a disputed fact is by clear and convincing evidence, the question that must be answered on appeal is whether the trial court’s finding that the disputed fact was proven by clear and convincing evidence was clearly erroneous. A finding is clearly erroneous when, although j7there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. Such cases are reviewed de novo on appeal. Calahan v. Ark. Dep’t of Human Servs., 2013 Ark. App. 508, 429 S.W.3d 372. However, we do give a high degree of deference to the trial court, as it is in a far superior position to observe the parties before it and to judge the credibility of the witnesses. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001).
IV. Shannon Cooper-Henson’s Appeal
Shannon argues that the circuit court’s finding of aggravated circumstances was not proved by clear and convincing evidence. She cites her four months of sobriety before the termination hearing, her efforts to improve herself even after DHS quit providing reunification services, her employment, and the testimony from a DHS caseworker that she had become “a different mom.” Thus, she argues, the circuit court erred in finding that there was little likelihood that services to the family would result in successful reunification.
By the time of the termination hearing, Shannon had been living with her mother since May 2013 and had been working since March 2013; she was in outpatient drug treatment; she was aware of her drug and alcohol problems; and she was currently going to AA/NA meetings three times a week. All of these efforts were taken on her own despite the finding of no-reunification efforts by the court. She admitted, however, that she continued to have unresolved criminal charges and had lied to another circuit court on her affidavit of indigency for the appointment of the public defender.
| RIt is also true that the DHS county supervisor, Deidre Notto, noted that Shannon’s recent actions reflected a change in Shannon. This same witness, however, recommended that parental rights be terminated “because of the lack of stability [the children] have received since they have been born.” Notto noted that, after the previous case had been closed, the children had been back in their mother’s custody less than a year before the new case was opened. She also noted that most of Shannon’s pursuit of services came only after DHS filed its no-reunification-services motion, and she said that she felt the instability in Shannon’s life would continue because she only stepped up her efforts in April, which had “not even [been] four months.”
The court acknowledged and even applauded the progress that Shannon had made since the previous hearing and order. The court, however, also considered Shannon’s extensive history with DHS and found that her eleventh-hour efforts to improve her situation were “too little, too late.” Further the circuit court specifically found that Shannon “has no credibility with this court.” The court cited her “many admitted (and discovered) fabrications in testimony,” and the court wondered why, if Shannon had “truly begun to rehabilitate her life, ... she did not make these changes before now or use the skills from previous services to avoid the children returning to foster care.”
Our standard of review requires us to give great deference to the circuit court’s ability to observe the parties and to judge their credibility, and we will not reverse a circuit court’s factual findings unless they are clearly erroneous — that is, unless we are left with a definite and firm conviction that a mistake has been made. See Camarillo-Cox, supra.
|Jn Trout v. Arkansas Department of Human Services, 359 Ark. 283, 197 S.W.3d 486 (2004), the supreme court affirmed the termination of a mother’s parental rights based on a finding of aggravated circumstances where she had not been stable for a sufficient amount of time to indicate that reunification was possible. Although the mother argued that she had resolved the problems that had led to the aggravated-circumstances finding, the supreme court held that to give the mother more time to comply would only ignore the fact that she had consistently failed to comply with the court’s orders. Id. at 294, 197 S.W.3d at 493.
The Trout court also considered the purpose of the termination-of-parental-rights statute, as set out in Arkansas Code Annotated section 9-27-341(a)(3) (Repl.2009), which is to “provide permanency in a juvenile’s life in all instances where the return of a juvenile to the family home is contrary to the juvenile’s health, safety, or welfare and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time, as viewed from the juvenile’s perspective.” In affirming the termination of the mother’s parental rights, the supreme court observed that the circuit court had been in contact with the family for four years, during which time the mother had repeatedly failed to comply with the court’s orders. In addition, the supreme court noted that the circuit court “consistently expressed difficulty with believing [the mother’s] testimony, and it was appropriate for the judge to consider the history of [her] appearances before him in determining whether she could be trusted to continue making positive steps.” Trout, 359 Ark. at 295, 197 S.W.3d at 493. Given the circuit court’s experience with the mother and her persistent failure to comply with the court’s orders, the supreme court held that the lincircuit court correctly determined that the mother “was either incapable of correcting the problems or indifferent to the need to do so.” Id., 197 S.W.3d at 493-94.
The similarities between Trout and the present case are significant. In both, the circuit court had great difficulty in finding the mother to be a credible witness. In both, the court had been involved with the mother and her family for a number of years and had had enough experience to ascertain whether the mother’s current progress would continue in the future. Here, the circuit court specifically noted that it was “terminating [Shannon’s] parental rights not because of timeline pressure or because she is beyond redemption; it is because the court is not convinced that these monumental changes will last because they are too new and too slow in coming.” Given our deference to the court’s credibility determinations, we are unable to say that the court’s findings were clearly erroneous.
V. Douglas Henson’s Appeal
Douglas argues that the circuit court erred in terminating his rights because DHS made no effort to assist him in reunification. Douglas admits that he is currently incarcerated ^following his arrest for possession of methamphetamine with intent to deliver on the night the children were taken into DHS custody. (He asserted at the termination hearing that he intended to accept a plea-bargain offer for five years and hoped to be “out by February.”) He argues that, while he is “facing serious charges,” he is also attempting to rehabilitate himself. He further maintains that the circuit court failed to consider the likelihood that services to him — separate and apart from services to Shannon — would result in successful reunification with the children.
In Nichols v. Arkansas Department of Human Services, 2013 Ark. App. 504, 429 S.W.3d 342, this court affirmed the termination of a father’s parental rights, rejecting an argument similar to the one made here. There, the court noted that the father did not take advantage of any of the services offered by DHS before he was incarcerated, and when he did take advantage of those services, it was only after the case plan was several months old and after he had been arrested and imprisoned on a different charge. Most importantly, the court stated, “there was no indication at the termination hearing that the services he completed made him a viable placement option for [the child] or that he would become so within a reasonable amount of time from [the child’s] perspective.” Nichols, 2013 Ark. App. 504, at 9, 429 S.W.3d at 348.
Much the same can be said here. The circuit court found that Douglas had, for at least the previous two hearings, been incarcerated and that he had failed to present evidence or testimony “that he has done anything since his incarceration to support or otherwise maintain | l2a presence in his children’s lives.” The court noted Douglas’s testimony that, if he were to get the children back, his “main plan for the children ... would be for them to go with their mother or maternal grandmother.” The court further found that Douglas was “in no position to care for these children, even if he were to be released from prison soon.” The circuit court’s findings are supported by the evidence, and we affirm the decision to terminate Douglas’s parental rights.
Because only one ground is necessary to support termination, see Albright v. Ark. Dep’t of Human Servs., 97 Ark.App. 277, 248 S.W.3d 498 (2007), it is unnecessary to address the appellants’ arguments about the “other factors or issues” ground supporting termination.
Affirmed.
GLADWIN, C.J., and WALMSLEY, J., agree.
. DHS was contacted after Shannon failed to pick up an older sibling from day care and then did not inquire about his whereabouts for a few days; when DHS contacted her about this situation, she tested positive for drugs. DHS removed all three children.
. Neither Shannon nor Douglas challenges the circuit court’s best-interest determination, arguing only that the evidence did not support the court's finding that the statutory grounds had been proved.
. Douglas has also filed a pro se "Motion for Judicial Notice of Adjudicative Facts,” asking this court to take judicial notice of numerous matters. He alleges that DHS failed to adequately investigate the facts leading to termination, that DHS’s investigation was not impartial, and that he was denied the effective assistance of counsel throughout the proceedings. We decline to take judicial notice of these issues. Under Arkansas Rule of Evidence 201(b), "[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by [resort] to sources whose accuracy cannot reasonably be questioned.” As Douglas’s assertions are little more than unfounded accusations, we decline to take judicial notice of them. Moreover, to the extent that he raises claims of ineffective assistance of counsel, this argument was never raised below. Arkansas appellate courts will not consider a claim of ineffective assistance of counsel on appeal unless it was first raised in the trial court. Fuller v. Ark. Dep’t of Human Servs., 2014 Ark. App. 9, 2014 WL 69152.
. Douglas acknowledged that he had missed the last court hearing due to his incarceration. He claimed that he had been "clean” for quite a while, but he claimed that he went into a "down spiral” shortly before the children were taken into DHS custody. On cross-examination, Douglas conceded that he had missed the adjudication hearing because he knew that he could not pass a urine test. | [
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