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RITA W. GRUBER, Judge.
|¶ This case is before us for the second time. On May 17, 2012, the circuit court granted summary judgment to Michael G. Horn and W.M. Hogan (now appellees) and dismissed the complaint of Robert Fu-reigh (appellant) for claims of defamation, tortious interference with a contractual relationship, and the tort of outrage. We dismissed the first appeal in Fureigh v. Horn, 2013 Ark. App. 287, 2013 WL 1857755, finding that the order lacked finality because appellees’ defamation complaint against a third party was pending when appellant filed his notice of appeal. Id. The circuit court now has dismissed appellees’ third-party complaint with prejudice, and | appellant has timely filed his second notice of appeal from the order of summary judgment. He contends that the circuit court erred in dismissing his causes of action and granting summary judgment to appellees on his claims for defamation and tortious interference with a contractual relationship. We affirm.
Summary judgment is appropriate only when it is clear that there are no genuine issues of material fact to be litigated. Locke v. Cont’l Cas. Co., 2013 Ark. App. 690, 2013 WL 6097990. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate existence of a material issue of fact. Id. We focus our review not only on the pleadings but also on the affidavits and documents filed, viewing the evidence in the light most favorable to the party against whom the motion was filed and resolving all doubts and inferences against the moving party. Id. If a respondent cannot meet proof with proof on an essential element of his claim, the movant is entitled to judgment as a matter of law. Lee v. Martin, 74 Ark.App. 193, 45 S.W.3d 860 (2001).
Here, the following facts are largely undisputed. The LPA Group, Inc., an engineering consulting group, hired appellant as an airport engineer and consultant in March 2005 to assist with servicing Arkansas clientele. After the company failed to obtain a contract for work at the North Little Rock Municipal Airport, appellant began requesting information about aircraft based there to learn if they were registered in Arkansas and were paying state and local taxes. Using LPA’s telephone and email systems, he made FOIA requests to the airport | .¡manager, the city attorney, and finally the FAA for a document listing the tail numbers of those aircraft. Appellant provided registration information he received from the FAA to Pulaski County Tax Assessor Janet Trout-man Ward, and her office investigated whether taxes had been paid. Appellant went to her office several times, meeting with her twice.
On August 14, 2009, appellant’s immediate supervisor, Mike Stengel, emailed LPA’s senior vice president, Paul Holt of South Carolina, that the two of them should talk. Mr. Holt then became aware through Mr. Stengel of appellant’s inquiries. On August 17 and 28, 2009, respectively, appellees Horn and Hogan each wrote to LPA’s president and CEO, Arthur Parrish, detailing their frustration with LPA over appellant’s efforts to obtain tail numbers and tax information. On September 9, 2009, LPA terminated appellant’s employment for violation of company policies: conflict of interest, inappropriate use of company communication tools, and inappropriate behavior regarding company business.
Appellant filed his complaint against ap-pellees on July 21, 2010. In the first appeal, we summarized the allegations of the complaint:
[Appellant] contended that sometime before August 2009, he had inquired why “certain airplane owners were not paying taxes to the Pulaski County Tax Collector and the State of Arkansas.” He also had asked for tail numbers of all planes based at the North Little Rock Airport.... Appellant then alleged that appellees campaigned to have him fired from his job, and he attached an August 2010 letter from each appellee to the president and CEO of The LPA Group, in which appellees claimed that appellant was working with the Pulaski County Tax Assessor to assess potentially unfair and burdensome taxes on their airplanes. Appellees expressed outrage in the letters and suggested that appellant’s actions might have been retribution for or a vendetta against the pilots because The LPA Group’s bid was not awarded a contract to supply engineering services to the North Little Rock Airport. Appellant claimed that appel-lees’ actions interfered "with a valid contractual relationship between him and his employer and that the statements were false, improper, and made with malice and in reckless disregard of the consequences.
|4 Fureigh, 2013 Ark. App. 287, at 1-2, 2018 WL 1857755. Appellees timely answered, raising the affirmative defenses of waiver, estoppel, and statute of limitations and asserting the truth of anything they may have said or written as an affirmative defense to his defamation claim. They affirmatively pleaded that appellant had not been a licensed engineer in Arkansas since sometime in 2000, and they denied his entitlement to punitive damages.
After discovery was complete, appellees filed motions for summary judgment and supporting depositions, affidavits, and other materials. They alleged that statements in their letters could not support appellant’s defamation claim because they were true statements of fact and opinion; that even if the letters were defamatory, appel-lees had a qualified privilege to write them; that their conduct was not improper, as required for proof of intentional interference with a contractual relationship; that the facts did not support a claim of outrage; and that appellant could not prove damages. Appellant responded, attaching supporting documents and materials and arguing that there remained material facts in dispute to be resolved by a jury. After conducting a hearing, the circuit court granted appellees’ motion for summary judgment.
I. Whether the Circuit Court Erred in Granting Summary Judgment to Ap-pellees and Dismissing Appellant’s Cause of Action on His Claim for Defamation
The following elements must be proved to support a claim of defamation: the defamatory nature of the statement of fact, the statement’s identification of or reference to the plaintiff, publication of the statement by the defendant, the defen dant’s fault in the publication, the statement’s falsity, and damages. Faulkner v. Ark. Children’s Hosp., 347 Ark. 941, 69 S.W.3d 393 (2002). Additionally, the allegedly defamatory statement must imply an ^assertion of an objective verifiable fact. Id. A viable action for defamation turns on whether the communication or publication tends to or is reasonably calculated to cause harm to another’s reputation. Id. The plaintiff must establish actual damage to his reputation — although the harm may be slight — and prove that the defamatory statements were communicated to others and detrimentally affected those relations. Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002). See also AMI Civ. 411 (2014) (defining defamation as a statement of fact that is false and actually causes harm to a person’s reputation); Brown v. Tucker, 330 Ark. 435, 954 S.W.2d 262 (1997) (affirming the dismissal of a claim for slander where words possessed the tenor of an opinion).
Appellant contends that material issues of fact remain as to whether (A) statements made by appellees in their letters were false, and thus were defamatory; (B) appellant was damaged by the statements; and (C) appellees’ qualified-privilege claims have viability as affirmative defenses. Appellees respond that there are no genuine issues of material fact because (A) their letters consisted of true statements of fact and the writers’ opinions; (B) then* letters were not the proximate cause of appellant’s termination; and (C) their statements were privileged, as appellees were protecting their own interests.
Appellee Horn’s letter to Mr. Parrish was written on August 17, 2009. The text is as follows:
It is with great concern I write you today. I represent a group of pilots in the central Arkansas area and we are quite concerned and confused. The LPA Group has been promoted to us as a company that desired to assist the airports of Arkansas meet the needs of their facilities as they work with the pilots and aircraft owners and operators of the aircraft that utilize the central Arkansas airports. Why then has The LPA Group taken such diametrically opposed steps against the best interests of general aviation in|fithis area?
Recently, we became aware of your [company’s] efforts, through your representative, Robert Fureigh, to work with the Pulaski County Tax Collector to assess some potentially unjust and certainly burdensome taxes on the aircraft that patronize the central Arkansas airports, especially the North Little Rock Municipal Airport. The only logical explanation is that this is some attempt to help the state of Arkansas garner unjustified revenue from the many aircraft engaged in interstate commerce and owned in states other than Arkansas, similar to the efforts made public recently in Maine and Florida. This unjust taxation of aircraft in states they may visit in the course of normal commerce along with the taxes these owners and operators have already been assessed and paid in their home states is intolerable and can not be tolerated, nor those who propose such a fundamentally unfair act.
My immediate reaction would be to contact the AOPA and EAA along with every pilot organization, airport manager and airport commission in the country to publicize your actions. I’ve always heard there is no such thing as “Bad Publicity” and I am tempted to make every effort to see to it that you [receive] every bit of publicity that your [company’s] deplorable acts deserve. In all fairness though, I wanted to give you an opportunity to respond to the public statements made by your representative, Robert Fureigh, as well as the numerous LPA Corporate emails he has sent to the FAA, airport managers and others concerning this matter.
I would have hoped the good will and continued amiable business relationship between your company and general aviation airports throughout the United States would have been ... more important to your company than whatever you may gain from working with the Pulaski County Tax Assessor and Collectors offices. It has also been suggested that this action began as retribution for not having been chosen for a recent contract for services at the North Little Rock Airport. Neither explanation reflects well upon your business. This certainly seems to be an ill advised change to your overall business plan.
I anxiously await your response. (Emphasis added.)
Appellee Hogan’s letter to Mr. Parrish was written after Mr. Horn’s letter had been written. Dated August 28, 2009, it states:
I am writing you as I know others have about the conduct of one of your representatives Mr. Robert Fureigh.
|7As you know LPA was competing for a contract for the supply of engineering services for the North Little Rock, AR Airport. In what I believe was a free and fair competition the contract was awarded to another group. In business we win some and we lose some.
What transpired after was in a word “unbelievable.” Your employee under the banner of the LPA Group began a vendetta against the pilots of the North Little Rock Airport by accusing them of not paying taxes and enlisting the state authorities to investigate all. As most that I know are good taxpaying citizens this really amounts to either just harassment or an attempt at coercion to get the airport and its patrons to reconsider the contract award. As you further know tax liability of aircraft is very complicated with domicile issues, transit issues, etc. We pilots, who are subject to such harassment due to actions of your firm, will certainly expect reimbursement for the considerable expenses involved in defending our positions. Attorneys and accountants will of course be required in liberal measure.
Rather than spend time on such activities the pilots here would like your firm, to complete the improvement work on another airport in the region (7M3). Mr. Fureigh managed the improvement some one year ago which included runway widening and airport lighting replacement and improvement. The approach lighting has never worked. The lessee/manager has reported this several times with no corrective action. All of us who fly there consider the lack of a viable operation approach lighting system to be critical to flight safety. I am amazed there has not been a fatal accident there as the airport is in a mountainous and obstacle rich area. Letting down there at night is dangerous; especially so without the VASI.
I hope you can attend to and undo the damage done to the good pilots of NLR and take the fastest possible action to rectify the unsafe situation at 7M8. I look forward to your prompt response on these matters.
(Emphasis added.)
A. Whether Questions of Material Facts Remain Concerning Statements Made by Appellees in Their Letters
Appellant asserts that particular statements in appellees’ letters were defamatory statements of fact. He points to appel- lee Horn’s statements that he represents a group of pilots and that appellant wanted Arkansas to assess unjust taxes; Horn’s threat of bad publicity for |SLPA; Horn’s accusation that appellant’s conduct was deplorable; and Horn’s accusation that appellant acted against plane owners as retribution for LPA’s not being awarded the contract. He points to appellee Hogan’s characterization of appellant’s actions as a vendetta; Hogan’s “hearsay” statement that appellant had accused pilots of not paying their taxes; Hogan’s accusation that appellant shirked his responsibilities at the Mt. Ida airport; and Hogan’s request that LPA undo damage. From our review of the pleadings, affidavits, and documents in this case, the evidence viewed in the light most favorable to appellant is as follows.
Mr. Horn stated in his deposition that he was a licensed aircraft dealer; that he had an interest in several corporations, some of which had owned planes that he bartered and sold; and that some planes he had on consignment were registered in states other than Arkansas. He testified that he did not know appellant and wrote Mr. Parrish because
we had a group of people that had been together discussing the horrible things that had been going on at the airport and the falsehoods that we felt like were being spread about us. The LPA group was taking this as a vendetta against the North Little Rock Airport for losing the engineering contract.... The horrible things that he was doing were, as I said, the accusations of criminal conspiracies and failure to pay taxes and just a continuing barrage of things that muddied the waters about the airport and the people that hang out at the airport. In our opinion the accusations were unjustified.
He explained that this group of pilots decided someone should write LPA and that he ended up “being the lucky one.” He testified that people at the airport told him about appellant’s FOIA requests; that appellant’s accusations began after LPA failed to receive the airport contract; and that, in his opinion,
Mr. Fureigh was being directed by LPA to take on the users and the North Little Rock Airport and accusing various airport patrons of tax fraud, conspiracy to commit some criminal acts, and a flurry of emails to the airport commission about end [sic] numbers and aircraft and various things.
|flMr. Horn testified that he was concerned that transient aircraft would not stop in Arkansas if subject to an “unjust and burdensome tax,” that he had been falsely accused of not paying taxes or assessing, and that he had undergone an investigation and an audit.
Appellee Hogan testified by deposition that he had an interest in corporations that owned three airplanes, that the sole plane based in Arkansas was assessed in Arkansas, and that he paid local and state taxes on it. He testified that he, like appellee Horn, had been audited based upon untrue allegations and had been found to have no tax liability. He said that he had never heard of appellant before seeing him at airport commission meetings and council meetings. He testified that he learned in group conversation of appellant’s accusations about patrons of the North Little Rock Airport not paying taxes, that Janet Ward told him appellant had accused him, and that he (Hogan) viewed appellant’s complaints as retribution for LPA’s failure to get the contract at North Little Rock. He said that as a pilot who flew in and out of the Mt. Ida Airport, where LPA did get the contract, he knew that the approach lights there did not work; and that the airport manager there had told him appellant had been in charge of the improvements.
Charles “Skipper” Polk, North Little Rock Airport’s director, stated by affidavit that after LPA was not chosen for the contract, appellant asked him in emails and conversation about tail numbers; appellant told him that pilots, specifically appellees, evaded paying taxes on their aircraft; and appellant accused him of assisting pilots to do so. Janet Ward stated in her affidavit that appellant alleged that pilots at the airport were evading taxes on their aircraft and that she informed him, after investigating the matter, that the aircraft were properly | inassessed.
In a letter of September 15, 2009, Paul Holt responded to appellee Hogan. Mr. Holt wrote that LPA, upon learning of appellant’s efforts to obtain tax information on the aircraft, immediately ordered him to stop; that, contrary to the perception created through appellant’s use of LPA phone and email systems, his actions were neither part of LPA’s mission nor intended as retribution for its failure to win the contract; that Mike Stengel — not appellant — had managed the Mt. Ida project; that LPA was working to help Mt. Ida obtain a grant to fix the lighting; and, finally, that appellant was no longer employed by LPA.
In his deposition testimony, appellant recounted his efforts to ascertain whether aircraft based at the North Little Rock Airport were registered in Arkansas and paying appropriate taxes. He stated that he had not been involved in LPA’s attempts to get the engineering contract there and that during his time with LPA, he did have some secondary responsibility over the airport at Mt. Ida. In his personal appraisal at LPA, he wrote that his significant contributions included “[pjroject formulation efforts to guide Mt. Ida in transitioning from the MP phase into a development program with their available NPE entitlements (apron, rwy widening, land acq, possibly CC self fueling system).”
We agree with appellees that no material questions of fact remain on appellant’s claim for defamation. Appellee Horn testified that he represented a group of pilots at the North Little Rock Airport and that he considered the taxes he had been accused of evading to be unjust. Both Skipper Polk and Janet Ward stated that appellant accused pilots of evading taxes on aircraft based at the airport, and Ms. Ward stated that she informed him that aircraft based | nthere had been properly assessed. Mr. Horn’s threat of bad publicity, made to LPA rather than to Fureigh, was not defamatory in itself, and his characterization of appellant’s actions as “deplorable” was merely an opinion. Mr. Horn stated in his letter that it had been “suggested” that appellant’s actions were retribution for not receiving a contract, and he testified that this was also his opinion due to the timing of the accusation.
Likewise, appellee Hogan’s characterization of appellant’s actions as a vendetta is Hogan’s opinion or interpretation of those actions rather than a statement of fact. As for his use of a hearsay statement that appellant accused pilots of evading taxes, its truth was evidenced by Janet Ward’s and Skipper Polk’s affidavits and by appellant’s complaint itself. Mr. Hogan stated that appellant had managed past improvement work at Mt. Ida and that problems ■with the approach lighting had not been corrected. Although appellant admitted to some responsibility at the airport and wrote that he contributed to project formulation efforts there, Mr. Holt told Mr. Hogan that someone other than appellant managed the improvement and that LPA was helping the airport obtain a grant to correct the problem. Thus, LPA could not have understood Hogan’s statement in a defamatory sense. Finally, Hogan’s expression of hope that LPA would undo damage to the North Little Rock pilots was a request, not a statement of fact to serve as a basis for defamation.
In sum, appellees’ letters consisted of true statements of fact and the writers’ opinions. They contained no defamatory statements of fact, and summary judgment was properly granted on appellant’s cause of action for defamation.
B. Whether Genuine Issues of Material Fact Remain because Appellant was Damaged by Statements in Appellees’ Letters
112Appellant submits that there was sufficient proof of damages to submit the question to the jury. He points to his testimony that LPA fired him at age sixty-one, when he was making almost $86,000 a year; that he was in good standing with LPA and had been told that he had years left with the company; that, in his opinion, he had ten years left; but that appellees’ letters rendered him “radioactive,” or unemployable in his field in Arkansas.
We agree with appellees that statements in their letters did not proximately cause appellant’s termination. Mr. Holt, who fired appellant, testified that the emails alerted LPA to his inappropriate activity and triggered consideration of his termination: “What turned the corner for his eventual termination was finding out more about what he was doing. I found out more by talking to [appellant] and Mike Stengel and that’s it. Then we received the letters after that.” Thus, the undis-putable material facts demonstrate that the letters did not proximately cause appellant’s termination, and summary judgment was proper.
C. Whether Genuine Issues of Material Fact Remain Regarding Appellees’ Privilege to Make Statements
Appellant asserts that there remains the question of whether appellees had a qualified privilege to make defamatory statements to LPA. He proposes that there can be no privilege claim about failure to pay “taxes due but ... being avoided” or about possible crime, and that the safety issues at Mt. Ida had nothing to do with appellant.
A qualified or conditional privilege may arise when a common interest is involved and |isthe communication is reasonably calculated to protect or further the common interest of the publisher and recipient. Navorro-Monzo v. Hughes, 297 Ark. 444, 763 S.W.2d 635 (1989). If the utterances go outside the bounds of reason and purpose for making the statements, the immunity can be lost. Id. (citing Dillard Dep’t Stores, Inc. v. Felton, 276 Ark. 304, 634 S.W.2d 135 (1982)). Such communication must be “made in good faith upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, either legal, moral, or social, if made to a person having a corresponding interest or duty.” Ikani v. Bennett, 284 Ark. 409, 411, 682 S.W.2d 747, 748-49 (1985) (quoting Merkel v. Carter Carburetor Corp., 175 F.2d 323 (8th Cir.1949)).
Even if statements in appellees’ letters were defamatory, we would find that summary judgment was proper. The letters were written only to LPA, the entity that appellees reasonably believed to be responsible for appellant’s actions, and with whom they had a common interest. The plain language of Mr. Horn’s letter reveals that his purpose was to protect his reputation, financial interest, and pilots at the North Little Rock airport. Mr. Hogan likewise wrote to protect his reputation and financial interest, as well as the safety of pilots flying into the Mt. Ida Airport.
II. Intentional Interference with a Contractual Relationship
The tortious interference with business expectancy requires proof of the following elements: existence of a valid contractual relationship or a business expectancy; knowledge of the relationship or expectancy on the part of the interfering party; intentional interference inducing or causing a breach or termination of the relationship or expectancy; and resultant | H damage to the party whose relationship or expectancy has been disrupted. Stewart Title Guar. Co. v. Am. Abstract & Title Co., 363 Ark. 530, 540, 215 S.W.3d 596, 601 (2005). Additionally, for an interference to be actionable, it must be shown to be improper. Id.
Appellant alleged in his complaint that he had a valid contractual relationship and business expectancy with LPA, of which appellees had knowledge; that appellees’ intentional interference with the contract and business expectancy caused termination of his employment; and that their actions were improper. He relies on Mason v. Funderburk, 247 Ark. 521, 446 S.W.2d 543 (1969), where our supreme court reversed the grant of summary judgment on Fred Mason’s claim for wrongful interference with his employment contract in favor of four appellees: Dean Hudson, school superintendent; Neill Hudson and Jack Connor, school principals; and John Kron, school board member. Mason was employed by Field Enterprises in 1963 to sell encyclopedias, dictionaries, and other publications; was elected to the Calico Rock School Board in 1966; and was fired from employment in August 1967 by the company’s state manager, Funderburk, who began receiving derogatory communications about Mason from the four men in November 1966. The first was a letter from Superintendent Hudson, in which he
stated his assumption that it was against company policy for Field’s sales personnel to be members of local school boards, and transmitted a report that Mason had promised to see that the superintendent, principal and some of the teachers at Calico Rock were fired and had intimated that some of the school board members there had profited financially from a building program. He stated his belief in the truth of the reports, his opinion that Mason’s actions were highly unethical, his desire to buy materials so that Mason would receive no commission and his request to other school administrators not to buy from Mason or sales people under his control.
Mason, 247 Ark. at 531, 446 S.W.2d at 549.
|iaNext, Principal Neill Hudson wrote a letter expressing his opinion that Funderburk would want to put a stop to the confusion and ill feeling Mason was causing; that Neill had heard his brother Dean express doubt that, should the situation continue, the school’s new library would have the World Book Encyclopedias that appellant was selling; and that “Mason is strictly a politician in the lowest sense of the word.” Id. at 531-32, 446 S.W.2d at 549. After Neill Hudson wrote a second letter, requesting a reply, Fun-derburk called Dean Hudson at his office to discuss the controversy. Subsequently,
Dean Hudson called Funderburk by telephone advising that Mason and oth ers had filed a suit against the superintendent of schools at Calico Rock. This conversation lasted about an hour. Funderburk also received a letter dated July 20 from John Kron in which Kron suggested that Mason be called off or discharged, accusing Mason of maliciously injuring the school system and of saying to a business man that, if he thought things were fouled up, give him (Mason) another year. Connor, the high school principal, also wrote Funderburk on July 20. He accused Mason of harassing the superintendent and of trying to get the superintendent and the board to do things that were illegal.
The filing of the suit by Mason had been brought to Funderburk’s attention by his office manager before Dean Hudson’s telephone call. Funderburk also received newspaper clippings through the mail and coverage given the filing of this suit in newspapers in Izard County and Little Rock also came to his attention. On July 25, 1967, Funderburk asked Mason to resign from his position with the company, and, when Mason refused to do so, gave him written notice of termination of the contract of employment. In his affidavit Funderburk stated that his decision to terminate Mason’s employment was prompted by a controversy in which Mason had become involved with some member of the Calico Rock School Board, of which he first became aware by the letter from Dean Hudson dated November 7, 1966.
Id. at 532, 446 S.W.2d at 549-50 (emphasis added). Our supreme court found that language in these letters could be the basis of a jury question as to the right to recovery for defamation, and that the four ap-pellees had not shown, as a matter of law, that their actions did not constitute an unlawful interference, an actionable civil conspiracy, or actionable defamation.
|1(iThe facts of the present case are easily distinguishable from Mason. Appellees Horn and Hogan wrote single letters to appellant’s employer with the motive that LPA cease actions the writer believed to be detrimental to his own reputational and financial interests or to pilots in general. Horn and Hogan did not know appellant previously, had no business competition with him, and did not request termination of his employment.
As for appellant’s business expectancy with LPA, he represented himself as a licensed engineer when applying for employment with LPA although his Arkansas license had lapsed. As admitted by his signature on his application, he was aware that misrepresentations were grounds for termination. Moreover, he testified that he had sought VA disability for Vietnam-related PTSD since before his termination by LPA, that he currently was receiving disability benefits, that he believed his PTSD was unchanged for the last five to ten years, and that his VA doctor opined that appellant “[had] little or no employment because of the PTSD.”
Finally, appellees pleaded in their answer to appellant’s complaint the affirmative defense of estoppel. The doctrine of inconsistent positions is a form of estoppel that prevents an individual from asserting claims that are inconsistent from the individual’s previous positions. Dupwe v. Wallace, 355 Ark. 521, 140 S.W.3d 464 (2004). In the present case, appellant testified that all his damages resulted from his termination from LPA. A year earlier, however, he stated at a hearing before the Engineering Board:
A few weeks ago I received a letter from the VA that found me to be 100 percent disabled, and a part of that determination is they find me to be unemployable. 117... I will be financially secure because of my 100 percent Vietnam combat-related PTSD.... I will not be practicing engineering anymore. If I have any employment, I will lose my VA unemployment income for the rest of my life. I will be okay with that disability, there is an extra factor because it’s combat related it gets doubled. So I’m fine financially and it makes no sense for me to do any kind of work.
These statements demonstrate that appellant had no damages or business expectancies, both necessary to his causes of action. Furthermore, because his statements are inconsistent with regard to his claims in this case, he is now estopped from asserting damages at all. Appellees are entitled to judgment as a matter of law.
III. Conclusion
The undisputable material facts show that summary judgment was proper in favor of appellees on appellant’s causes of action for defamation and intentional interference with a contractual relationship. His termination was not proximately caused by appellees’ actions, their letters did not contain defamatory statements of fact and were not improper, the letters were privileged statements, and appellant had no business expectancy. We affirm the judgment of the circuit court in all respects.
Affirmed.
WHITEAKER and VAUGHT, JJ., agree.
. We noted that when the circuit court entered an order dismissing the third-party complaint, it had no jurisdiction to do so because the record had been lodged with our court on appeal.
We also acknowledged that our savings statute allowed appellees a year to refile their defamation counterclaim against appellant, apparently a compulsory counterclaim, after they took a voluntary nonsuit in November 2011. Id. More than two years has now passed, and there is no indication that the counterclaim was refiled.
. Appellant does not appeal the grant of summary judgment on his claim for the tort of outrage.
. Mr. Holt also testified that appellant had been reprimanded sometime before his termination when he "took it upon himself to go out and lobby” small-airport clients against large-airport clients in an effort to fund projects; Mr. Holt told him that this was a conflict of interest and that he needed to cease, and appellant did. | [
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BRANDON J. HARRISON, Judge.
11 Christopher Baker appeals a Pulaski County Circuit Court order denying his motion to hold his ex-wife, Staci Murray, in contempt and his attempt to change custody of his eight-year-old daughter, K.B., from Staci to himself. The heart of Baker’s appeal is that the court misapplied the law and made clearly erroneous findings of fact. We affirm.
I. Background
Christopher and Staci divorced in 2006, when K.B. was less than three months old. The divorce decree stated that the parties agreed that Staci would have custody of K.B. Both parties have since remarried and have families. Christopher moved to change custody in 2011, which the circuit court denied in an unappealed May 2011 order. Important to this appeal is the order’s paragraph 11, titled “Counseling for the Child” and which states that Staci “shall enroll the minor child in counseling with a therapist who is qualified under her health insurance program.” It also provides, among other things, that the parties and their spouses
12shall cooperate with the therapist and participate in the counseling as directed by the therapist. The parties are ordered to comply with all requests of the therapist and to continue in the therapy sessions, allowing the child to do the same, until released by the therapist.
Staci was found in contempt of paragraph 11 in September 2011 because she had failed to promptly enroll K.B. in therapy. Over a year later, in December 2012, Christopher filed another motion for contempt and to change custody. Christopher alleged various ways in which Staci was in contempt and listed thirteen grounds for a material change of circumstances to support his change-of-custody argument. The court devoted two days to hearing Christopher’s motion.
II. Custody-andr-Contempt Hearing
Matthew Frederick, Yolanda Thomas, Tonya Thomas, Patricia Baker, Christopher Baker, Chanti Edwards, and Staci Murray testified at the hearing. The testimony revealed that the parties have an acrimonious relationship and that K.B. has a difficult time going between houses. We summarize some of the testimony below.
Matthew Frederick, an expert in children and family social work, testified that KB. had “shown marked improvement” in handling her anxiety about her parents’ conflict since starting therapy in 2011. Frederick told the court that he had not released Staci from counseling when she withdrew from co-parenting therapy in May 2012 and that he had wanted Staci and her husband to continue coming. Frederick felt that it was in K.B.’s best interest for Staci to remain in the court-ordered, co-parenting therapy.
The families, by Frederick’s suggestion, shared a Google calendar so everyone could schedule and stay informed about events in K.B.’s life. Patricia Baker, K.B.’s stepmother, testified that the calendar became ineffective because Staci would either put | .¡events on there at the last minute or not at all so that she and Christopher would be left out. Staci produced some evidence that she had put events on the Google calendar. Christopher does not use email, so the couple uses Patricia’s email account as a primary means to communicate with Staci. Patricia testified that there were some communication problems between she and Staci about agreed times for holidays and therapy appointments, but no “real issues with visitation.”
During the course of the counseling, Frederick recommended that K.B. enroll in dance classes “because that’s her passion.” Staci eventually enrolled K.B. at a local dance studio that Frederick had suggested. KB. regularly participates in dance and church activities, but Frederick testified that there is an excessive amount of parent tension surrounding KB.’s dancing events at the studio and at church. Christopher was concerned that Staci did not let K.B. participate in more extracurricular activities and did not allow KB. to call Christopher or to hang out with him apart from the standard visitation times. Staci denied keeping K.B. from Christopher.
Staci Murray testified that she had remarried since the last order was entered in the case, that K.B. has a good relationship with her son, T.M., and that she was due to give birth to a baby girl in a few months. Staci did not have any concerns about K.B. being jealous of her siblings or adjusting to the new baby. Frederick testified that K.B. had given him a drawing that K.B. interpreted to mean that her mom loved the new baby more than her. Frederick spoke with Staci about K.B.’s concerns and reported to the court that Staci was “very, very reassuring with K.B. She was very positive in her | Response to K.B. and tried to clarify that she loves her as much as she loves her son [the baby].”
Both parents alleged that the other had physically abused K.B. in the past. According to Frederick, K.B. is spanked occasionally at her mother’s house, but is not spanked at her father’s house. Frederick explained that he is not “anti-corporal punishment” but had told the parents that he did not believe that corporal punishment is the best way to discipline K.B. because there were pictures of bruises (from a year and a half ago) and “who created the bruises ... is up for debate.” The court ruled that the bruising issue was raised and decided at the last hearing. Regarding a specific incident of corporal punishment of K.B., Frederick agreed that “Staci’s spanking ... was inappropriate in that context.” On cross-examination Frederick said that spanking had only been brought up one time by K.B. and concluded that the spanking was “maybe not the best choice, but [it was] not [done] in an abusive manner.”
Christopher told the court that he believed custody should be changed to him because, among other things, he did not feel that Staci was in tune with K.B.’s needs and strongly disagreed with her disciplinary methods. Patricia Baker testified that she and K.B. “have an excellent relationship.” According to Matthew Frederick, K.B. puts the level of comfort she feels in expressing herself to people in this order: stepmother, father, mother, and when prompted, her stepfather. Based on his observation, Frederick indicated that Christopher and his wife were more likely to facilitate an equal and healthy relationship between both parents, and Staci caused more conflict than Christopher. Frederick, however, acknowledged that the parties had spoken harshly about one another at various |,.¡times and had a general inability to communicate or get along. When asked about Staci’s behavior, Frederick specifically stated, “I have not seen something [from Staci] that rises to the level of parental alienation.”
Frederick declined to make any change-of-custody recommendation to the court.
Yolanda Thomas, K.B.’s elementary school principal, testified that K.B. was either absent or tardy twenty days in three semesters. The school’s policy requires parents to volunteer if their child receives six tardies in a semester as a deterrent to future tardies, and Staci performed the required volunteer work. According to K.B.’s third-grade teacher, Tonya Thomas, “K.B. is very outgoing. She’s a very smart girl, at the top of her class. All positive things about her.” Ms. Thomas did not think that K.B.’s tardiness adversely impacted her grades. Chante Edwards, who is the director of the daycare that K.B. attends and Staci’s sister-in-law, said that K.B. is happy at the daycare and is never a discipline problem.
III. The Court’s Order
The court entered its final order on 5 July 2013. After a brief statement of the procedural and factual history between the parties and the testimony at the hearing, the court wrote:
The continuing problem between the parties is a lack of communication. The parties have both remarried and even though the Plaintiff and Defendant will text each other on their phones, most of the communication is between the moth er and step-mother. In fact, the stepmother types out all her husband’s responses to the Defendant before sending them to her. Matthew Frederick testified that both parties have “fairly healthy relationships” with the new spouses and both are loving and caring couples. He admits that there is acrimony between the parties which causes the minor child to have anxiety and places her in a position of trying to make everyone happy. Therapy continued through August 2012 when 1 fithe Defendant decided additional counseling was unnecessary. Mr. Frederick stated that the Defendant’s attitude was always respectful but she did not want to continue in a joint co-parenting situation .... Mr. Frederick concluded that the parents need to change how they interact with each other around the child and stated that both parents improved when they were in joint counseling. Mr. Frederick stated that he does not make a recommendation for a change of custody at this time but believes that the minor child should have more access with her father. Both parties and the other witnesses testified as to instances where they believe the other party was at fault in harming the relationship between the parties and K.B. Both parties are not perfect, but both parties and their new spouses are good, loving and caring adults who love K.B. very much.
The court ordered that the parties and K.B. continue in counseling with Matthew Frederick. The court noted that K.B. is an active child and is involved in many activities, and it required her parents to communicate and notify the other parent of KB.’s activities using a calendar. The court ordered that both parties have access to the calendar and any updates that are made. The court also stated: “[Staci] has allowed the minor child to be tardy over twenty (20) times during the 2012-2013 school year. This is intolerable and cannot continue.” The court denied all contempt motions and concluded that it had
heard all the testimony, reviewed the exhibits and other evidence submitted by the parties and finds that the Plaintiff has failed to sustain his burden for change of custody. The Court finds that it is in the best interest of the minor child that she remain in the custody of her mother.
IV. Analysis
In Alphin v. Alphin, 90 Ark.App. 71, 74-75, 204 S.W.3d 103, 105-06 (2005) (internal citations omitted), this court recited the law on modifying custody:
Although the trial court retains continuing power over the matter of child custody after the initial award, the original decree is a final adjudication of the proper person to have care and custody of the child. Before that order can be changed, there must be proof of material facts which were unknown to the court at that time, or proof that the conditions have so materially changed as to warrant modification and that the best interest ofjjthe child requires it. The burden of proving such a change is on the party seeking the modification. The primary consideration is the best interest and welfare of the child, and all other considerations are secondary. Custody awards are not made or changed to punish or reward or gratify the desires of either parent.
In child-custody cases, we review the evidence de novo, but we do not reverse the findings of the trial court unless it is shown that they are clearly erroneous. 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. Because the question of whether the trial court’s findings are clearly erroneous turns largely on the credibility of witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child’s best interest. There are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carry as great a weight as those involving minor children.
We have divided Christopher’s arguments into two categories: issues of law and issues of fact. And we will only address the arguments that Christopher has properly developed. Spears v. Spears, 339 Ark. 162, 3 S.W.3d 691 (1999).
A. Issues of Law
Christopher first argues that the court’s order is unclear because it does not specifically state whether a material change in circumstance has occurred. He correctly states that whether a material change of circumstance has occurred is a threshold issue in custody-modification cases. Henley v. Medlock, 97 Ark.App. 45, 244 S.W.3d 16 (2006). In deciding what a court’s order means, the general rule is that we construe domestic-relations orders just like any other legal document, starting with the plain language. See [⅝Singletary v. Singletary, 2013 Ark. 506, 2013 WL 6504746. It is also worth noting that Arkansas’s domestic-relations statute does not specifically require circuit courts to make findings when deciding whether to modify custody. Ark.Code Ann. § 9-13-101 (Repl.2009).
Having read the order’s plain language, we conclude that the court found that the threshold issue — a material change of circumstance — had not occurred. First, the order does not switch custody of K.B. from Staci. Second, the order plainly states that “[Christopher] failed to sustain his burden.” Moreover, if Christopher had specific factual and legal findings he wanted the court to make then he could have requested them using a rule of civil procedure. Ark. R. Civ. P. 52 (2013). As the record stands, however, Christopher has not provided us a reason to reverse the court’s order based on this particular content-related point.
Christopher also argues that the court failed to properly analyze the two-prong change-of-custody test because the order states, “it is in the best interest of the minor child that she remain in the custody of her mother” and because the court has some history of misapplying custody law. We are not persuaded. Even if we assume, as Christopher argues, that the court had found a material change of circumstance, the order can be reasonably read to determine that the court did not grant custody to Christopher because it found that it was in K.B.’s best interest to remain in her mother’s custody. And the court did not improperly apply the law just because its order recites an alternative basis to support the ultimate custody-related ruling.
To the extent that the Christopher is arguing that we should reverse this case— or perhaps scrutinize the court with more rigor than we might other circuit courts— because 19the circuit court in this case has a history of misapplying the law in custody cases, we reject his argument. Christopher also asserts that the court imposed an extra burden on him to prove that the alleged material changes in circumstances adversely affected K.B. We find no evidence in this record to support Christopher’s assertion that the court imposed a heightened burden.
In sum, we reject Christopher’s arguments that the court failed to properly identify and apply the applicable law.
B. Issues of Fact
Christopher’s remaining arguments challenge the court’s fact-finding function. He argues that the court erred in not granting him custody of K.B. because, to do so, the court had to ignore the “negative impact and damage” Staci has caused K.B. He argues that the court’s findings were clearly erroneous and against the preponderance of the evidence. Christopher has abandoned any challenge to the court’s refusal to find Staci in contempt; here he only challenges the court’s findings of fact as they relate to the custody determination.
First, Christopher argues Staci’s refusal to continue the court-ordered therapy was a material change of circumstance. True, there was unrefuted testimony at the hearing that Mr. Frederick had not released Staci from counseling, that he had wanted Staci and her husband to continue coming to the counseling sessions, and that Staci had decided not to continue with the counseling. Yet violating a court’s order does not, in and of itself, compel a change of custody. See Powell v. Marshall, 88 Ark.App. 257, 197 S.W.3d 24 (2004). The violation is a factor to be considered, but it is not so conclusive as to require | inthe court to act contrary to the best interest of the child. Id “To hold otherwise would permit the desire to punish a parent to override the paramount consideration in all custody cases, [that is], the welfare of the child involved.” Id at 266, 197 S.W.3d at 29. To ensure compliance with its orders, a court has the power of contempt, which should be used before the more drastic measure of changing custody. Id
Here, the court’s final order directs the parties to continue in therapy to improve their communication, and the court retains its power to hold Staci in the future. The court’s decision not to use the “drastic measure” of a change of custody because Staci dropped out of therapy with Mr. Frederick was not clearly erroneous.
Second, Christopher argues that Staci made disparaging remarks and intentionally kept Christopher from participating in KB.’s life. He contends that this pattern constitutes a material change of circumstance. A pattern of alienation can support a change of custody. See, e.g., Turner v. Benson, 59 Ark.App. 108, 109, 953 S.W.2d 596, 598 (1997) (“Whether one parent is alienating a child from the other is an important factor to be considered in change of custody cases.”). Here, however, Frederick testified that Staci’s actions did not rise to the level of alienation. He also said that both parties acted disrespectfully to each other now and then. The court addressed this issue in its order by noting, “The continuing problem between the parties is a lack of communication.” The court then ordered that the parties use a calendar so that Christopher could be better informed on the events in KB.’s life and that the parties communicate directly with each other. The court’s findings on these points were not clearly erroneous.
|n Third, Christopher argues that a material change in circumstance occurred when Staci remarried and K.B. felt that her mother favored the new baby over her. Christopher also challenges Staci’s care of K.B., believing that Staci’s spanking and screaming harm K.B. and that K.B. is more comfortable and free around Christopher and his wife. He argues that these facts create a material change in circumstances.
Remarriage alone is not a sufficient reason to change custody, though it may be considered as a factor in a change-of-circumstance analysis. See Middleton v. Middleton, 83 Ark.App. 7, 113 S.W.3d 625 (2003) (reversing because husband’s remarriage and birth of new child did not constitute material change of circumstances sufficient to warrant change in custody); see also Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005) (stable environment that had been enhanced by father’s remarriage proper consideration in a holistic ehange-of-circumstance analysis). In its order the court explained that both sets of parents loved and cared for K.B. The court also noted that Frederick testified that Staci was “very reassuring” to KB. as she explained that she still loved her after her son was born. As for the spanking and whether it presented a custody-related problem, we defer to the circuit court on this particular issue because it involves the parties’ credibility and varying parenting styles. See Hobby v. Walker, 2011 Ark. App. 494, 385 S.W.3d 331 (explaining that father’s strict parenting style was not enough to be a material change of circumstance). Frederick testified that while Staci’s discipline techniques may not be the best, they were not done in an abusive manner. On this disputed record, we hold that the court’s related findings were not clearly erroneous.
[¡.Fourth, Christopher argues that K.B.’s school performance and her lack of extracurricular activities are a material change of circumstances warranting a change of custody. Generally, disagreements on basic parenting choices are not material changes of circumstances. See Hobby, supra. In this particular case, there was ample factual support in the record for the court to reject Christopher’s change-of-custody argument. And while the parental tension surrounding these events is apparently significant, it did not, in the circuit court’s view, create a material change in circumstance finding. Given the standard of review and the record, we will not disturb the court’s ruling on this point either.
V. Conclusion
We affirm the circuit court’s decision that custody of KB. remain with Staci Murray.
Affirmed.
GRUBER and PITTMAN, JJ., agree. | [
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Minor W. Millwee, Justice.
Jerome School District No. 22 was created by Special Act 583 of 1921 out of territory lying in Drew and Chicot Counties and since its organization has been administered by the Drew County Board of Education. Initiated Act No. 1 of 1948 (1949 Cumulative Pocket Supp. to Ark. Stats., 1947, §§ 80-426 to 80-429) authorized the creation of' a countywide school district composed of all districts with less than 350 pupils enumerated on March 1, 1949, but reserved the right of annexation and reorganization in accordance with existing law prior to that date. The Jerome district had less than 350 pupils enumerated.
Prior to January 24, 1949, a petition was filed with the county boards of education of Drew and Chicot counties signed by more than 10 per cent of the qualified electors of the Jerome District requesting that a special election be held in said district for the purpose of its dissolution and annexation to Dermott School District in Chicot county or to Portland School District in Ashley county.
The Board of Directors of the Dermott District passed a resolution consenting to the annexation. Pursuant to notices published in Drew and Chicot county newspapers an election was held in the Jerome District on February 26, 1949, in which a majority voted for dissolution and annexation to the Dermott District. On February 28, 1949, the Drew County Board of Education met, declared the results of the election and made an order of annexation transferring the property and assets of the Jerome District to the Dermott District. The Chicot County Board of Education declined to take any specific action since no election was held in the Dermott District, but resolved that it had no opposition to the annexation.
Appellant, C. C. G-ibson, Jr., is a resident of Drew County, a patron and board member of the Jerome District and one of the signers of the petition for the election. On March 3, 1949, appellant filed a petition before the Drew County Board of Education alleging the invalidity of the election of February 26, 1949, for the reason that the Dermott District did not petition for, nor conduct, an election for the purpose of annexing the Jerome District. The petition was denied by the Drew County Board and an appeal was granted to circuit court on the date of the filing of the petition.
At a hearing in circuit court on May 10, 1949, attorneys representing the Dermott District for the purpose of defending the action of the Drew County Board of Education filed a petition to dismiss the appeal on the following grounds: “ (1) The appeal was not taken in the manner and within the time allowed by law; (2) The petition of C. C. Gibson, Jr., before the Drew County Board of Education fails to state sufficient grounds to constitute a cause of action.”
Following a bearing on tbe motion, tbe trial court indicated that tbe petition to dismiss should be sustained on tbe second ground urged, but appellant was given 30. days to present further testimony. At a second hearing on July 27, 1949, tbe trial court entered judgment dismissing the’ appeal and affirming tbe annexation order of tbe Drew County Board of Education made on February 28, 1949.
Appellant urges several grounds for reversal, but we are confronted at tbe outset with appellee’s contention that tbe dismissal of the appeal by tbe circuit court should be sustained because no bond for appeal from the order of the Drew County Board of Education was filed as required by Act 183 of 1925 (Compiler’s Note to Ark. Stats., 1947, § 80-213). While the circuit court dismissed on another ground, tbe appeal from tbe county board’s order was subject to dismissal on tbe first ground set out in tbe motion to dismiss. In Gibson v. Davis, 199 Ark. 456, 134 S. W. 2d 15, we held that Act 183, supra, was controlling as to appeals from county boards of education. Tbe Act provides that an aggrieved party may appeal from a final order of tbe board within 30 days by filing the affidavit and bond prescribed in tbe Act. Appellant filed an affidavit for appeal, but did not file tbe bond required under tbe Act. In Cypress Ridge School Dist. No. 3 v. Morris, 213 Ark. 192, 209 S. W. 2d 689, we said: “The express provision requiring appeal bonds in school election contests (except as limited by tbe Act of 1943) is controlling, and is jurisdictional.” See, also, Lynn School Dist. No. 76 v. Smithville Dist. No. 31, 213 Ark. 268, 211 S. W. 2d 641.
Although not abstracted, the record reflects that a bond for costs was filed by appellant with tbe circuit clerk on September 26, 1949. This was done several months after the time specified in Act 183, supra, and after rendition of final judgment in circuit court.
It follows that the circuit court did not err in dismissing tbe appeal from tbe order of tbe Drew County Board of Education and tlie judgment is, therefore, affirmed.
G-rlfbiN Smith, C. J., not participating. | [
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Tom Glaze, Justice.
On May 5, 1990, the appellant, Tina Wheeler, failed to see and ran a stop sign located at the corner of Mitchell and Thompson streets in Conway, Arkansas, and collided with the vehicle driven by appellee, Martha Bennett. Bennett sustained injuries to her lower back and neck. Ms. Wheeler was on her way to an aerobics class and was driving a pick-up truck owned by her father’s business, Wheeler Construction Company. Mrs. Bennett initially filed respective negligence and vicarious liability claims against Tina Wheeler and her father, Bob Wheeler d/b/a Wheeler Construction Company. Bennett sought recovery for permanent injury, loss of earning capacity, past and future medical expenses, and past and future pain, suffering and mental anguish. The Wheelers answered denying all allegations and asserting comparative fault. Bennett subsequently took Ms. Wheeler’s deposition and discovered Ms. Wheeler had had two accidents and had received three speeding tickets all in the preceding four years. Bennett then amended her complaint by substituting the vicarious liability claim with one alleging Ms. Wheeler was reckless and that Bob Wheeler was guilty of negligent entrustment. The Wheelers again answered denying these new allegations.
Prior to trial, Bob Wheeler filed a motion for summary judgment as to the negligent entrustment claim. In addition, Ms. Wheeler filed two pretrial motions seeking to exclude certain evidence from being introduced at trial. The trial court denied both Wheelers’ requests.
At trial and upon conclusion of Bennett’s case-in-chief, the judge directed two verdicts. First, the judge dismissed Bennett’s negligent entrustment claim against Bob Wheeler. Second, he granted Bennett’s directed verdict finding Ms. Wheeler had breached her duty to exercise ordinary care. The judge then submitted only the issues of proximate cause and damage to the jury. The jury returned a general verdict assessing Mrs. Bennett’s damages at $100,000.
Ms. Wheeler appeals contending the trial judge committed error in (1) directing a verdict against her on the issue of negligence, (2) denying her motions in limine, (3) allowing the testimony of eyewitness Jeff Johnston, and (4) denying her motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, in that the damages awarded were unsupported by the evidence and were excessive. We affirm upon condition that appellee accept a remittitur.
We first address whether the trial judge committed error by directing a verdict for Mrs. Bennett on the issue of Wheeler’s negligence. This court has consistently reaffirmed the holding that it is for the jury in a comparative negligence case to determine the negligence of each party. Baker v. Matthews, 241 Ark. 539, 408 S.W.2d 889 (1966). However, we have also adopted the rule that the issue should be taken from the jury “when the proof of one party is so clear, convincing and irrefutable that no other conclusion could be reached by reasonable men.” Spink v. Mourton, 235 Ark. 919, 362 S.W.2d 665 (1962); Morton v. American Medical International, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985); See also, Williams v. Carr, et al, 263 Ark. 326, 565 S.W.2d 400 (1978), and Young v. Johnson, 311 Ark. 551, 845 S.W.2d 509 (1992).
It is key to note that those cases involved issues of negligence. Moreover, the following language from the Spink opinion is especially appropriate to the case at bar:
Thus, no matter how strong the evidence of a party, who has the burden of establishing negligence and proximate cause as facts, may comparatively seem to be, he is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially, for a jury to believe otherwise.
Spink, 235 Ark. at 922, 362 S.W.2d at 667, citing United States Fire Ins. Co. v. Milner Hotels, 253 F.2d 542 (8th Cir. 1958). Similarly, as we said in Woodmen of the World Life Ins. Soc. v. Reese, 206 Ark. 530, 176 S.W.2d 708 (1943):
A verdict upon an issue of fact should not be directed in favor of the party who has the burden of proof with respect thereto, unless such fact is admitted, or is established by the undisputed testimony of one or more disinterested witnesses and different minds cannot reasonably draw different conclusions from such testimony.
In presenting her case to the jury, Bennett called Tina Wheeler to the witness stand and elicited the two following statements from her: (1) She had admitted to the police officer at the scene that she had run the stop sign, and (2) she admitted that Bennett had done nothing to contribute to the accident. Although this testimony had the effect of affirmatively proving negligence on Ms. Wheeler’s part, it had the greater and more critical impact of conceding the collision was in no way the fault of Bennett. Other evidence did not contradict Wheeler’s admissions or concessions. Because Wheeler conceded all fault was hers, the trial judge was correct in directing a verdict for Bennett.
Our determination that the trial judge did not err in directing a verdict on the issue of Ms. Wheeler’s negligence renders moot, for lack of prejudice, other contentions raised by appellant. In this respect, Ms. Wheeler argues the trial court erred when it allowed fifteen-year-old Jeff Johnston to give his opinion concerning the speed of Tina Wheeler’s vehicle when it impacted Bennett’s vehicle. Johnston’s testimony reflected only on the issue of Ms. Wheeler’s negligence and liability concerning the accident, and that issue was correctly disposed of by the trial court’s granting Bennett’s directed verdict. Wheeler was at fault. Thus, even if Johnson’s testimony was inadmissible, no prejudice ensued and reversible error did not occur. Peoples Bank & Trust v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986).
Ms. Wheeler also argued the trial court erred in failing to exclude documented evidence that she had been involved in two wrecks and had received three speeding tickets since she obtained her driver’s license some four years earlier. This evidence was introduced to prove Bennett’s claim of negligent entrustment against Bob Wheeler — which claim was dismissed before this case went to the jury. In short, Wheeler argues that, although the trial court eventually dismissed the negligent entrustment claim, the evidence already introduced to support the claim was before the jury and was highly prejudicial to Ms. Wheeler’s case. First, we reiterate that the trial court not only dismissed the negligent entrustment claim, but also it directed a verdict finding Ms. Wheeler at fault. Second, Wheeler simply fails to show how Ms. Wheeler’s prior driving record actually prejudiced her case. Clearly, it was her burden to prove prejudice resulted from any inadmissible evidence. Id. Ms. Wheeler simply has not demonstrated how any inadmissible evidence bearing on the resolved liability issues affected the damages rendered against her.
Ms. Wheeler next contends that the trial judge erred in refusing to exclude (1) any reference or testimony to plaintiff's alleged loss-of-earning capacity, and (2) any reference to or admission of post-accident expenses incurred by Bennett for medical treatment related to chest pains which Wheeler claims were unrelated to the accident.
We first address the loss-of-earning capacity contention. Wheeler specifically argues that the trial judge erred in admitting evidence of loss of earning capacity because Bennett failed to show with reasonable certainty that the injuries she suffered were permanent, and that unless there is such testimony the court should not let the jury assess any damages for permanent injury. Missouri Pacific Transportation Co. v. Kinney, 199 Ark. 512, 135 S.W.2d 56 (1939). A permanent injury is one that deprives the plaintiff of his right to live his life in comfort and ease without added inconvenience or diminution of physical vigor. Adkins v. Kelly, 244 Ark. 199, 424 S.W.2d 373 (1968). It is well recognized that impairment-of-earning capacity is recoverable only upon proof that an injury is permanent. Henry Woods, Earning Capacity as Elements of Danger in Personal Injury Litigation, 18 Ark. L. Rev. 304, 305 n.12 (1965); Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983). Further, whether a permanent injury exists must not be left up to speculation and conjecture on the part of the jury. Handy Dan Improvement Center, Inc. v. Peters, 286 Ark. 102, 689 S.W.2d 551 (1985).
Wheeler first argues that no “permanent injury” per se exists in this case because none of the physicians who treated Bennett ever assigned her a numerical “impairment rating.” No such rating is required. Review of our cases that address this subject sufficiently illustrate that the failure to assign an impairment rating in no way wholly precludes an injured person from recovering damages for permanent injuries or loss of earning capacity. See Matthews v. Rodgers, 279 Ark. 328, 335, 651 S.W.2d 453 (1983); Belford v. Humphrey, 244 Ark. 211, 424 S.W.2d 526 (1968).
Wheeler further argues that, even if assignment of an impairment rating is unnecessary to recover for loss-of-earning capacity, Bennett failed to meet her burden of proving a perma nent injury with reasonable certainty because there was insufficient proof of an objective injury. We disagree.
Tina Wheeler herself stated immediately after the collision that Bennett exclaimed, “My back hurts. I’m in pain.” Further, the emergency room records show that Bennett had a bulging disc in the lower lumbar area of her spine. That evidence was corroborated by the MRI (Magnetic Resonance Image) analysis which showed an irritation of the SI nerve rootlet on the right side. Bennett’s regular physician, Dr. George Gray, III, testified that objective tests showed that the Si nerve rootlet remained irritated from April of 1990 through July of 1991. Dr. Gray further testified that upon Mrs. Bennett’s first examination, just ten days after the wreck, he located and verified “objective spasms in her lumbar spine,” such spasms being consistent with an irritated nerve rootlet. He also testified that upon examination Bennett had quite a decrease in her range of motion in her back, flexion, extension, side bending and rotation. Moreover, Mrs. Bennett complained of pain in her neck. In this connection, MRI results showed a mild protrusion of the disk between C6 and Cl which Dr. Gray testified was the most common area of the neck to be injured as far as discs were concerned. Although Dr. Gray also testified that the scant objective findings of injury could not have caused the myriad of symptoms and pain complained of by Bennett, he stated that there was no reason that he would think that Bennett would show improvement and that he anticipated she would continue to have the same complaints.
In East Texas Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 545, 713 S.W.2d 456, 460 (1986), this court was confronted with an auto accident in which one of the drivers, Ms. Freeman, was injured, and testified that she sustained a head injury, suffered nausea, vomiting and severe and continuing headaches up to the time of trial, a period of approximately three and a half years. Although this court conceded the proof of permanency was marginal, and further stated that Freeman’s injuries were more emotional than physical, we allowed evidence of permanency to be submitted to the jury:
While we have held that future pain and permanency must be established with reasonable certainty and not left to the jury’s speculation and conjecture, (cite omitted) we have also said the jury may consider the nature, extent and persistency of the injuries and may rely on lay testimony, (cite omitted). Between the two extremes of objective injuries on the one hand and subjective complaints on the other lies a grey area “in which the issue of permanency becomes a matter of judgment.” Belford v. Humphrey, 244 Ark. 211, 424 S.W.2d 526 (1968). All in all we are satisfied there was enough evidence of permanency to submit the issue to the jury.
In light of the fact that the objective signs and other evidence bearing on the permanency of Bennett’s injuries here are more substantial than those presented in Freeman, we hold that the testimony adduced on the issue of permanent injury was sufficient to warrant its submission to the jury.
Ms. Wheeler’s next point for reversal has merit. She contends the trial court erred in allowing Bennett to introduce testimony and medical bills, totalling $8,281.24, which related to the treatment of chest pains suffered by Bennett some eight months after the collision. Bennett was required to show by a preponderance of the evidence that it was Wheeler’s negligence that proximately caused Bennett’s chest pains and related medical expenses.
Proximate cause means a cause which, in a natural and continuous sequence, produces damage without which the damage would not have occurred. In an action for negligence, proximate cause may be shown from circumstantial evidence, and such evidence is sufficient to show proximate cause 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. White River Rural Water District v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992).
In Jonesboro Coca-Cola Bottling Co. v. Young, 198 Ark. 1032, 1036, 132 S.W.2d 382, 384 (1939), this court cited 15 Am. Jur. 413 for the proposition that:
The damages recovered in any case must be shown with reasonable certainty both as to their nature and in respect of the cause from which they proceed. No recovery can be had where it is uncertain whether the plaintiff suffered any damages unless it is established with reasonable certainty that the damages sought resulted from the act complained of. Hence, no recovery can be had where report must be had to speculation or conjecture for the purpose of determining whether the damages resulted from the act of which complaint is made or from some other cause, or where it is impossible to say what, if any, portion of the damages resulted from the fault of the defendant, and what portion from the fault of the plaintiff himself.
The record reflects that in November of 1990 (eight months after the accident) Mrs. Bennett visited Dr. Gray complaining of chest pains for which he had her admitted to Conway Regional Hospital. Mrs. Bennett had a pre-existing heart condition characterized as a rapid heart beat. In fact there was.testimony that Bennett was placed on heart and blood pressure medication as early as 1979, and was required to continue taking the medication. However, for alleged monetary reasons, Bennett stopped taking the medication just a few days prior to experiencing the chest pains. Dr. Gray stated that in his opinion the cause of the chest pains was “multifactorial” — pre-existing heart condition, smoking, obesity, family history of heart problems, stress, and “I would assume that stopping her medication had the major component to her having chest pain but as far as to any degree of certainty, I can’t say.”
After examination, Dr. Gray transferred Bennett to the University of Arkansas Medical Center in Little Rock for more definitive testing. Bennett was placed in CCU and her echocardiogram showed poor function of her left ventricle. Upon Bennett’s release, UAMS sent Dr. Gray a discharge report, which he read during his video deposition. Dr. Gray testified:
the diagnoses on the discharge report were that they thought (sic) was caused by gastrointestinal problems, esophagitis and gastritis. This could be anything from preexisting ulcer problems, medication induced — she was on anti-inflammatory medications, which could have caused this from her back, stress and so forth. So the picture on her heart is very cloudy at best in my estimation.
Again, in characterizing the UAMS discharge diagnoses Dr. Gray stated:
“It appears that they thought that, more or less, her chest pain was a referred chest pain from her esophagus. . . . Usually, these are seen in hyper-secretory states of acid. Rather this be (sic) the most common results of which are medication and stress and smoking.”
However, when Dr. Gray was asked to give his opinion as to which of the three possible sources most likely induced the gastrointestinal chest pains, he repeated that he did not know one way or the other, but that he did know that probably all of them do contribute, but could not say to what degree. Thus, there was absolutely no evidence that ingestion of the anti-inflammatory medication more probably than not caused Mrs. Bennett’s chest pains. Further, the record is devoid of any document or statement reflecting that physicians at UAMS conducted any tests to determine whether anti-inflammatory medication was indeed a source of the gastro-intestinal chest pains. In addition, the deposition testimony of Dr. Warren Boop, Jr., Bennett’s chronic pain physician, fails to carry Bennett’s burden. Dr. Boop treated Bennett only once and that was prior to the onset of chest pains. Although he did state that anti-inflammatory medication frequently causes gastric irritation, he could not give an opinion as to the possible source of Bennett’s chest pain.
We hold that the evidence submitted required the jury to speculate in deciding which of the various possible causes more likely than not caused Bennett’s chest pains. The evidence failed to prove with reasonable certainty that the chest pains were the result of the anti-inflammatory medication prescribed for treatment of Bennett’s injured back. In sum, Bennett’s proof falls short of showing her chest pains resulted from any fault of Wheeler’s. Thus, the trial judge erred in allowing that evidence to be presented to the jury. We mention Bennett’s reliance on this court’s decision in the recent case of National Bank of Commerce v. McNeil Trucking, 309 Ark. 80, 828 S.W.2d 584 (1992). Suffice it to say that the McNeil Trucking case is inapposite because there the court did not address the issue presented here, namely, whether alleged damages were causally connected to the accident.
Because we find reversible error in the trial court’s allowing Bennett to introduce medical expenses unrelated to her chest pains, we note that single verdicts as a general rule may not be divided. However, this court has adopted and applied an exception to this rule, that is, when the only error relates to a separable item of damages, a new trial can sometimes be avoided by the entry of a remittitur. Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986); Swenson v. Hampton, 244 Ark. 104, 424 S.W.2d 165 (1968). Of course, we have no assurance what damages the jury actually considered when rendering its verdict. Nevertheless, the judge incorrectly admitted evidence bearing on the element of medical expenses that are clearly separable damages in the amount of $8,281.24. Therefore, if Mrs. Bennett remits $8,281.24 within seventeen judicial days, we will affirm; if not, this cause will be directed for a new trial on damages.
Wheeler finally contends the jury’s award of damages is both unsupported by the evidence and was the result of passion or prejudice. We disagree. In each case we must study the proof, viewing it most favorably to the appellee, and decide the difficult question of whether the verdict is so great as to shock our conscience or to demonstrate passion or prejudice on the part of the trier of fact. Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983); Warhurst v. White, 310 Ark. 546, 838 S.W.2d 350 (1992). In determining whether the amount of damages is so great as to shock the conscience, the appellate court considers such elements as past and future medical expenses, permanent injury, loss of earning capacity, scars resulting in disfigurement, and pain, suffering and mental anguish. Bill Davis Trucking, Inc. v. Prysock, 301 Ark. 387, 784 S.W.2d 755 (1990). As discussed above, we concluded that Bennett’s injuries were indeed submissible as “permanent,” and Bennett’s evidence on the single element of loss of earning capacity alone was estimated at $197,600. Accordingly, we find no merit in this contention.
Affirmed on condition of remittitur.
Hays, J., dissents. | [
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McHaney, J.
Appellant, who is a "reputable lawyer of Searcy, Arkansas, sued appellees for damages, alleging that they had libeled him by writing, mailing and causing to be delivered the following letter:
“August 20, 1926.
“J. C. Wyatt, Sec’y & Treas.,
“Union Trust Co.,
“Carthage, Mo.
“Dear Sir: We are in receipt of your letter of the 18th asldng information concerning J. N. Rachels, attorney, of Searcy, Ark.
“Mr. Rachels has lived in Searcy for the past twenty years. During this time he has been engaged in the practice of law. For four years he was district attorney; this position he filled with fair credit and satisfaction. Since that time he doesn’t seem to have gotten on very well. He claims to have lost some money in the oil business. We have found it necessary to charge off some notes that he owed this bank as they were unoolleetable. Would suggest rather conservative dealings with him.
“We ask that you keep this information strictly confidential. We really prefer your destroying this letter after it has served its purpose.
“Tours truly,
“J. H. Deener, Vice Pres.”
It is alleged that the contents of said letter were false and malicious and known to be false by appellees; that it was written for the purpose of injuring’ him in his good reputation, and of destroying confidence in blm as a lawyer; and that it constituted a libel on his character and reputation to his damage in the sum of $10,000, for which amount he prayed judgment. A demurrer was interposed and sustained to this complaint, one of the grounds of which was “because the instrument set out in said complaint is not actionable, per se, and the complaint fails to allege any specific damage sustained by plaintiff.” Appellant declined to plead further, and his complaint was dismissed. Hence this appeal.
Was the publication of the above letter libelous pet se? If so, the demurrer was improperly sustained; but, if not so, then the complaint was open to demurrer in the absence of an allegation of special damages. Honea v. King, 154 Ark. 462, 243 S. W. 74. There was no such allegation. One sentence in the letter says that “For four years he was district attorney, this position he filled with fair credit and satisfaction.” This, we take it, is complimentary. Next it says: “(Since that time he doesn’t seem to have gotten on very well.” Nothing libelons about that. “He claims to have lost some money in the oil business.” Nothing there to sustain an action for libel. “We have found it necessary to charge off some notes that he owed this bank as they were uncollectable. Would suggest rather conservative dealings with him.” This is the most damaging statement contained in the letter, and it is not libelous per se, as, when analyzed, it amounts only to a statement that his credit at the bank is not so good as it once was. Our statute, (§ 2390, O. & M. Digest), defines libel as follows: “ A libel is a malicious defamation, expressed either by writing, printing or by signs or pictures or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, veracity, virtue or reputation, or to publish the natural defects of one who is living, and thereby expose him to public hatred, contempt and ridicule.” In Honea v. King, supra, we held that in determining whether the written words are libelous, the entire article must be considered and construed, and the words used must be taken in their plain and natural meaning. When we have done this, we find nothing in the letter which tends “to impeach the honesty, integrity, veracity, virtue or reputation” of appellant, nor anything to “expose him to public hatred, contempt and ridicule.” True, the.letter states the bank holds some notes which were charged off because uncollectable. But that does not amount to a charge of dishonesty, nor impeach his integrity, for we all know that many honest men, men of high integrity, sometimes become unable to pay their honest debts. The words used do not impute to him a want of capacity or fitness to engage in his profession as a lawyer and nothing is said which can reasonably be construed to be a reflection on him in his professional capacity. The most that can be said is that there is an imputation of insolvency which is not actionable per se. 17 R. C. L., p. 307, § 47.'
The words used not 'being libelous per se, and there being no allegation of special damages, the complaint failed to state a cause of action, and the demurrer was properly sustained.
Affirmed. | [
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Humphreys, J.
This suit was brought by appellees against appellants to re-establish an obliterated or lost comer in order to locate definitely the dividing line between certain lands owned by appellees and appellants in Newton County. It is admitted in the pleadings that appellees owned, according to Government calls, that part of the northwest quarter of the northeast quarter of section 7, township 16 north, range 20 west, south of Buffalo River and the southwest quarter of the northeast quarter of section 7, township 16 north, range 20 west, and that appellants owned, according to Government calls, the east half of the southwest quarter and the northwest quarter of section 7 in township 16 north, range 20 west.
After 'the issue as to the location of the division line was joined and the cause was called for trial appellees introduced Tom Jones, surveyor of Boone County, who testified that he correctly surveyed out the division line according to the United States Government field notes, and marked same upon the land.
Appellant then introduced J. E. Bolin, deputy county surveyor of Newton County, who testified that he correctly surveyed out the division line according to the United States Government field notes and marked same upon the land, and also introduced Brice Jones as a witness, at which juncture the court stopped the proceedings and appointed Capt. Charles Le Vhsseur of Yellville to survey out the true division line. Le Vasseur sent a substitute who was not satisfactory to the parties, and that survey was not made. The court then appointed the surveyor of Johnson County to survey out the division line and continued the case. His survey was never completed. At the next term the court appointed R. A. Sturgeon, who was connected with the State Highway Department, to survey 'out the division line and continued the ease. At the next term of the court Sturgeon filed a report showing that he made a partial survey without notice to the parties, and to which exceptions were filed by .both appellants and appellees. The court then took the case under advisement for further consideration and rendition of a decree in vacation.
The final decree rendered in vacation, from which both appellants and appellees have appealed to this court, contained the recitals thalt the case had been in court a long time and if permitted to go on the costs would exceed the value of the land; that on his own motion he declined to hear further evidence or to appoint another surveyor to locate said line; that he would sustain the exceptions of both parties to the R. A. Sturgeon survey because incomplete and made without notice to the parties; that from the evidence before him he could not tell where the line was; and that, over the objection and exception of both appellants and appellees, he would equitably adjust the matter by directing the line between the lands involved be located at an equal distance between the Jones and Bolin surveys and order and adjudge that the line be located at said point, that each party pay his own costs and that the court costs be divided between them.
As we read the findings and decree of the court the line was located by way of equitable adjustment or compromise because it was impossible for the court to determine from the evidence where the true division line was. The recital in the decree that the court refused to hear additional testimony or order another survey on account of the expense incident thereto reflects that the case was not fully developed.
In this undeveloped condition of the case it is impossible for this court on trial de novo to locate the true division line.
The decree is therefore reversed, and the cause is remanded with directions' to the court to hear further testimony and determine from all the evidence in the ease where the true division line is. | [
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Hart, C. J.,
(after stating the facts). Counsel for appellant contend that the redemption by the minor of the land from tax sale in 1920 was unauthorized, and that the court erred in allowing minor to redeem. It is their contention that the minor could not redeem under the statute until after he became of age. We do not agree with counsel in this contention. In the case of Carroll v. Johnson, 41 Ark. 59, it was held that a minor can redeem his land from tax sale at any time during his minority and for two years afterwards, whether the purchase be by the State or by an individual. The court said that a purchaser at a tax sale takes a defeasible title, and that, if the land belonged to a minor, it is subject to redemption at any time during his minority and for two years after he attains his majority. The court had under consideration § 5197 of Gantt’s Digest, which contains a saving clause that minors and other persons mentioned in the statute may redeem from a tax sale at any time within two years from and after the expiration of such disability.
Counsel for the appellant insist that the holding in this case does not apply because the redemption in the 'present case falls under § 10096 of Crawford & Moses’ Digest, which was passed by the Legislature of 1883. It will be noted that this section contains a saving clause in favor of minors and other persons and provides that, where their lands have been sold for taxes, they may be redeemed within two years from and after the expiration of such disability. The court has frequently construed this statute to give minors the right to redeem from and after the sale until the expiration of two years after they have reached their majority. The court has said that the minor’s right to redeem commences from and after the sale, and that the right to redeem continues until two years after he should come of age. Bender v. Bean, 52 Ark. 132, 12 S. W. 241 ; Seger v. Spurlock, 59 Ark. 147, 26 S. W. 819 ; Moore v. Irby, 69 Ark. 102, 61 S. W. 371 ; and Crowley v. Spradlin, 77 Ark. 190, 91 S. W. 550.
Later decisions of the court have recognized that the statute does not suspend the right of redemption during the minority of the owner, but that it may be exercised as well before as after the removal of the dis ability of minority. Hisey v. Sloan, 180 Ark. 797, 22 S. W. (2d) 1005, and oases cited.
It is also insisted that tbe right of the minor to redeem may only be exercised by suit brought in the chancery court. We do not agree with counsel in this contention. The statutory right to redeem from tax sales is self-executing and requires no judicial proceedings to make it effective. It may be exercised in the manner pointed out ¡by statute as a matter of right by the owner of the property, and it is available in all cases, not only where the sale was defective, but where it was perfectly regular and valid. The right of redemption is given by the statute, and it is intended to afford the owner the opportunity to save his property from a tax sale by complying with the provisions of the statute relating to his right to redeem. Bender v. Bean, 52 Ark. 132, 12 S. W. 180, 241 ; Cook v. Jones, 80 Ark. 43, 96 S. W. 620 ; and Nelson v. Peirce, 119 Ark. 291, 177 S. W. 899.
It follows that the decree of the chancery court was correct, and it will be affirmed. | [
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Steele Hays, Justice.
This proceeding was brought on behalf of SCAN Volunteer Services, Inc., appellant, seeking a determination that the child of Samantha Shockey, appellee, was a “dependent-neglected” child. It was further requested that protective services be ordered for the child. The only question for review is whether Ark. Code Ann. § 9-27-344(b)(2) of our Juvenile Code authorizes private agencies such as SCAN, to provide those protective services.
SCAN, which is under contract with the Arkansas Department of Human Services, filed its petition on December 29,1987. A hearing was held on February 1,1988, and testimony from two witnesses was presented by the petitioner. The case was then continued as the defendant and other witnesses had not appeared.
During the interim, on March 2, appellee filed a motion to dismiss on the grounds that SCAN had no authority to monitor the protective services. A hearing on the motion was held on March 29, 1988, and after argument by counsel, the court ordered the petition dismissed, finding that SCAN was not authorized to provide protective services under Ark. Code Ann. § 9-27-344(b)(2). SCAN appeals from that order arguing that the trial court’s interpretation of the statute is incorrect. We agree.
The statute in question provides:
(b) If a juvenile is found to be a juvenile in need of services, the court may enter an order making any of the following dispositions:
* * *
(2) Place the juvenile under the protective supervision of the Arkansas Department of Human Services or other social service agency;
In its written order, the court found that under the doctrine of ejusdem generis, the term “other social service agency” in § 9-27-344(b)(2) refers to an agency of the State of Arkansas. The court then found that SCAN is not a state agency but rather a private, non-profit corporation, and therefore had no authority to discharge protective supervision orders under the statute.
The trial court has incorrectly applied the doctrine of ejusdem generis to the statute in this case. The doctrine provides that, “Where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” 2A Singer, Sutherland Statutory Construction § 47.17 (4th ed. 1984). See also, Jones v. State, 104 Ark. 261, 149 S.W. 56 (1912); Cherokee Public Service v. City of West Helena, 184 Ark. 38, 41 S.W.2d 773 (1981). The doctrine can only apply however, when certain conditions exist:
(1) The statute contains an enumeration by specific words; (2) the members of the enumeration suggest a class; (3) the class is not exhausted by the enumeration; (4) a general reference supplementing the enumeration, usually following it; and (5) there is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires.
Sutherland Statutory Construction, supra, § 47.18. While the statute in question meets the fourth requirement in that it contains a general reference, it fails in every other respect to sustain an application of the doctrine.
Here there is no enumeration of specifics and, hence, nothing by which to define the limits of a class, or to even suggest that there is a class.
Thus a class is a generalization which associates items for a particular purpose. Without some objective relationship, classification is arbitrary and meaningless. The purpose for defining the class by illustrative particularizations accompanied by a general catchall reference is to determine how extensively the act was intended or should réasonably be understood to apply.
Id. When the enumeration of specifics is deficient as it is in this case, the general term “remains unaffected by its association with the preceding , words because the ‘language of the statute furnishe[s] no criterion by which to restrict its general words.’ ” Sutherland Statutory Construction, supra, at § 47-20.
The statute also fails to meet the requirements of the doctrine because the class has been exhausted. The Department of Human Services, which under the trial court’s interpretation was the specific word defining the class, is the only department in the state system dealing in the area of human services and social welfare. See generally, Ark. Code Ann. §§ 25-2-101 through §§ 25-14-101. “Where the specific words embrace all the persons or objects of the class designated by the enumeration, the general words take a meaning beyond the class.... In order to prevent their rejection as surplusage, the general words take an unrestricted meaning on the ground that the legislature, by the addition of general words to an exhaustive enumeration, must have intended that they have meaning outside the class.” Sutherland Statutory Construction, supra, at § 47.21. See also, Compton v. State, 102 Ark. 213, 143 S.W. 897 (1911).
In light of the inapplicability of ejusdem generis, if there is no ambiguity, we give the term in question its usual and ordinary meaning, and the effect just as it reads. Chandler v. Perry-Casa Public Schools, 286 Ark. 170, 690 S.W.2d 349 (1985). The statute reads, “social service agency” not “state agency” and we think it means exactly what it says — any other social service agency, whether public or private. The key word is agency. The word is broadly generic, referring to an organization, instrumentality or establishment. It carries no connotation that a division or branch of government is intended. It may more readily suggest a business enterprise, such as advertising agency, real estate agency, employment agency, sales agency, or detective agency. Any intimation of a governmental bureau is even lessened when “social” and “service” are added adjectivally. Webster’s New International Dictionary, 2d Edition, defines agency as:
1. Faculty or state of acting or of exerting power; action; instrumentality. 2. Office or function of an agent, or factor; reaction between a principal and his agent; business of one entrusted with the concerns of another; as an agency for a well-known typewriter; an advertising agency, an employment agency. 3. The place of business or the district of an agent. Synonyms: action, operation, efficiency, management; intermediation; instrumentality. (Emphasis in original).
Words and Phrases contains literally hundreds of cases interpreting “agency.” Not one suggests the slightest predilection for a governmental instrumentality. See Words and Phrases, Vol. 2A, Permanent Edition.
Thus, to restrict the definition of the term “social service agency” to a branch of state government requires reading something into the phrase which common usage plainly does not embrace.
This interpretation is made even clearer by reading the rest of the statute where alternate dispositions are listed. When the legislature intended to indicate a state agency, it has specifically stated, “an agency of the State of Arkansas.” Section 9-27-344(3)(A). Furthermore, it is clear that the legislature put no limitations on the care, supervision or even custody of a juvenile as being only by a state agency. The enumerated dispositions include several alternatives that obviously do not contemplate the involvement of a state agency: Sections 9-27-344(b)(l), 9-27-344(b)(3)(A), 9-27-344(b)(3)(C), 9-27-344(4), and 9-27-344(5).
Another reason exists for SCAN’s entitlement to both file and pursue this cause. When its petition was filed, SCAN was, pursuant to Ark. Code Ann. § 9-27-334 (1987), the designee of the Department of Human Services by virtue of a contract dated October 1, 1987, by the terms of which SCAN was obi gated to supply certain juvenile services as imposed by lawl on the Department. While this arrangement renders SCAN primarily responsible for the rendition of such services, it does not relieve the Department of its statutory duty to see that these responsibilities are discharged.
We conclude that under the factual allegations of the petition, which are thus far undisputed, we find no basis for construing the term “protective services” in § 9-27-344(b)(2) as requiring only the administration of a state agency.
REVERSED and REMANDED.
Purtle, J., dissents.
The term, “juvenile in need of services,” is not defined in the Juvenile Code, but doubtless refers to a grouping of two of the three classifications of juveniles under the Code — “juvenile in need of supervision,” and “dependent-neglected juvenile.” See § 9-27-303; 9-27-343; 9-27-344. | [
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iSmith, J.
Appellant, who is a citizen and taxpayer of Pulaski County, seeks by this suit to enjoin appellee from collecting a salary from. Pulaski County, which was being paid him for certain services rendered the county and probate judge of that county. The cause was heard in the court 'below on the stipulation of opposing counsel, which recited the character of service rendered, and from which we copy as follows:
“W. P. Sibeck, the county and probate judge of Pulaski County, during the regular 1929 session of the levying court, commonly known as the quorum court; ’ ’ made representations of “the deplorable condition of a large number of the estates handled and being handled in the Pulaski Probate Court, several thousand of which estates extending over a period of many years, had never been closed,” and that the duty of making settlement of these estates “would he long and laborious and largely clerical; that some one with more time than the county and probate .judge of a large county, and also with legal training and experience should be employed as public necessity demanded it” to make settlement of these accounts. Upon the recommendation of the judge, an appropriation of $3,000 was made by the quorum court “for legal expenses with which to employ some attorney or other suitable person of requisite skill and experience to investigate, consult, advise and make recommendations as to probate matters, both present and past, in order that this condition should be alleviated and the county judge rendered all assistance possible.”
Pursuant-to the authority conferred by the action of the quorum court appellee was employed to render the proposed service to the county and probate judge at a salary of $3,000 per annum, payable in monthly installments of $250 each.
Since appellee’s employment, he has acted “in an investigating, consulting, and advisory capacity, attempting to alleviate the conditions recited above; all matters investigated by him or submitted to him have been considered, discussed with the parties in interest, and discussed with the probate judge and such recommendations made as defendant thought were proper. ’ ’
No orders have been made by appellee, but the result of his investigations were indorsed upon the papers examined and signed by him as referee and passed on to the probate judge for such action as that official thought proper.
The chancellor held that the facts recited constituted merely a special employment, which was authorized by law, and dismissed appellant’s complaint as being without equity, and this appeal is from that decree.
It is first insisted that appellant has no capacity to sue in the chancery court, and that a complete and adequate remedy at law is open to her, if, indeed, she is entitled to any relief. Appellant could, no doubt, make herself a party to the order of the county court allowing the monthly installments of the annual salary, and have appealed from each order of allowance; but this would require a multiplicity of appeals. Moreover, we think authority to prosecute, this suit is expressly conferred by § 13, of article 16 of the Constitution, which reads as follows : “Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.”
Among the cases which have authorized citizens and taxpayers to institute suits in the chancery court more or less similar in character against the enforcement of illegal exactions which do not affect them specially or nersoually, but only as citizens, are the following: Tay' lor v. City of Pine Bluff, 34 Ark. 603 ; City of Little Rock v. Prather, 46 Ark. 471 ; Merwin v. Fussell, 93 Ark. 336, 124 S. W. 1021 ; Harrison v. Norton, 104 Ark. 16, 148 S. W. 497 ; Bentonville v. Browne, 108 Ark. 306, 158 S. W. 161 ; Seitz v. Meriwether, 114 Ark. 289, 169 S. W. 1175 ; Quinn v. Reed, 130 Ark. 116, 197 S. W. 15 ; Farrell v. Oliver, 146 Ark. 599, 226 S. W. 529 ; Green v. Jones, 164 Ark. 118, 261 S. W. 43 ; Marshall v. Holland, 168 Ark. 449, 270 S. W. 609 ; Bush v. Echols, 178 Ark. 507, 10 S. W. (2d) 906 ; Rigsby v. Ruraldale Consolidated School Dist., 180 Ark. 122, 20 S. W. (2d) 624.
We think appellant had the right to bring this suit as a citizen and taxpayer. In the case of Lee County v. Robertson, 66 Ark. 82, 48 S. W. 901, it was held that an order of the levying court, appropriating funds to another purpose than that for which they were raised, is tantamount to the allowance and enforcement of an illegal exaction against every taxpayer in the county, and that any citizen had the right to resist that action.
We are also of the opinion that the relief prayed should have been granted. While appellee is called a referee, and professed to act as such in an advisory capacity, he is, in fact, a deputy probate judge, and no authority exists for the creation of such an office.
. The stipulation makes plain the fact that appellee does not render the county any service. He merely audits and examines settlements in the probate court, which are passed on, with his recommendations, for the entry of such order's as the referee thinks should be made, to the probate judge, and this is done because the probate judge is otherwise so engaged that he does not have time to perform the duties which the referee is paid to perform. It is not questioned that these duties are such as probate judges are required by law to perform, or such as would be performed by the probate judge of Pulaski County if the time of that officer were not otherwise employed.
This appears to us to be an attempt to do, without an 'act of the General Assembly, what we held, in the case of Nixon v. Allen, 150 Ark. 244, 234 S. W. 45, could not be done under legislative authority. That was a case in which we held unconstitutional an act dividing the offices of county judge and probate judge of Pulaski 'County, and providing- that each office should be filled ¡by a separate person. We there said that there could not be two county judges. We quote from that opinion as follows: “Under the Constitution there cannot be more than one county judge. The limitation is found in the numeral ‘one’ in the clause, 'the county court shall be held by one judge,; and likewise in the very nature of the jurisdiction of such court and the functions of its presiding judge. State v. Martin, 60 Ark. 343, 30 S. W. 421. The county judge is the governor, so to speak, in the affairs of the county in the matters over which the county courts are given exclusive .jurisdiction. He is given supreme or exclusive original authority over the matters enumerated in the Constitution, and such authority, in the very nature of the case, must be exercised by one presiding and controlling genius. There is no room under the Constitution for a division of authority and responsibility in the office of county judge. The idea that there can be two county judges, either one of whom could preside over the county court, would be incompatible with the intention of the framers of the Constitution in conferring jurisdiction and power upon such court and its judge. The functions of this office in its control over taxes, roads, /bridges, and other matters of local concern and internal improvement, are indivisible and can only be exercised by one person.”
What was there said in regard to the judge of the county court is equally applicable to the judge of the probate court, and there can no more be two probate judges, by whatever name one of them may be called, than there can be two county judges.
We conclude, therefore, that the relief prayed should have been granted, and the decree of the court below will be reversed, and the cause will be remanded with directions to grant the injunctive relief prayed. | [
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Steele Hays Justice.
This appeal questions whether a trial court exceeds its jurisdiction when, having imposed a sentence for a term of years, which the defendant has been serving, it adds a fine for a subsequent offense.
Scarlett DeHart was originally charged in September 1988 with overdraft and theft by deception. She was convicted and in January 1990 was sentenced to a ten-year term of imprisonment with suspended execution of five of those years, conditioned upon her living a law-abiding life. She began serving the five years which were not suspended.
In October 1990, Ms. DeHart was paroled from prison and the trial court entered an order acknowledging her release. Some months later she was arrested for attempting to obtain a controlled substance by the fraudulent use of a prescription. Separate proceedings were begun to revoke her parole and her suspended sentence. The parole revocation hearing was held first and the parole board chairman filed a summary of the hearing on September 9, 1991. He found insufficient evidence that the conditions of parole had been violated.
On November 4,1991, a hearing was held on the revocation of the suspended sentence. The trial court found by a preponder anee of the evidence DeHart had violated conditions of her parole by fraudulently obtaining a controlled substance. Sentencing was set for December 9,1991, and on that date the trial court held the sentence she was currently serving (10 years with five years suspended) should remain in effect and that in addition to the “fine, costs and restitution and fees previously assessed against the defendant in the judgment entered on January 9, 1990, she shall pay an additional fine of $250.00.”
Appellant DeHart first argues the trial court exceeded its authority in assessing the $250 fine. The crux of the argument is: Once part of a sentence has been put into execution, may the sentence be modified or changed? The answer is no. A trial court loses jurisdiction to modify or amend the original sentence, once any part of a valid sentence is put into execution. Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989).
At the sentencing on December 9, 1991, the trial court sentenced DeHart to ten years imprisonment, with the execution of five of those years to be suspended after serving the first five. The trial court did not impose any fine for these convictions but included as a condition of suspension that she pay the fines on two existing, unrelated cases. Ms. DeHart began serving her sentence but was released on parole in October 1991. As she had begun incarceration, execution of the sentence had obviously begun.
It is clear that a trial court cannot modify or amend the original sentence once a valid sentence is put into execution. Jones v. State, supra; Toney v. State, 294 Ark. 473, 743 S.W.2d 816 (1987); Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985). The $250 fine was therefore invalid and the judgment must be modified to reflect that holding. See Queen v. State, 271 Ark. 929, 612 S.W.2d 95 (1981).
The state contends this point was not raised below and is therefore waived on appeal. However, we have treated the issue as jurisdictional and as not requiring an objection at the trial level. In Jones v. State, supra, the same issue was presented, i.e., the trial court had increased the sentence after it had been put into execution and objection was made for the first time on appeal. We wrote:
Although appellant did not object in the trial court, she need not have done so. The trial court’s loss of jurisdiction over a defendant “is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by this court.” Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983); Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985).
Second, Ms. DeHart argues that the trial court erred in not making written findings at the revocation hearing as required by Ark. Code Ann. § 5-4-310(b)(5) (1987), which reads:
If the suspension or probation is revoked the court shall prepare and furnish to the defendant a written statement of the evidence relied on and the reasons for revoking suspension or probation.
The trial court did not provide DeHart with a written statement of the evidence under § 5-4-310(b)(5), and she claims this is error. We disagree. The statute she relies on is, by its language, only applicable when the trial court has revoked a suspension or probation. Here, the trial court did not revoke the suspension. The record reveals the following:
1. The trial court issued an order on November 4, 1991, after the revocation hearing, finding defendant had violated the conditions of her suspended sentence by engaging in obtaining a controlled substance by fraud. The order continues: “Therefore, defendant’s suspended sentence should be revoked.” [Our emphasis.]
The order further stated it was taking the matter under advisement as to sentencing and directed the defendant to report back to court for sentencing on December 9, 1991.
2. The trial court issued an order on December 9, 1991, to direct sentencing in the case. The order stated:
The court, having previously found by a preponderance of the evidence that the defendant violated the condition of her suspended sentence, hereby finds that the sentence defendant is currently serving (ten years in the Arkansas Department of Correction with five years suspended) shall remain in effect. In addition to the fine, costs, restitution and fees previously assessed against the defendant in the judgment entered on January 9,1990, she shall pay an additional fine of $250.
All conditions of defendant’s suspended sentence shall remain in full force and effect, including the condition that she live a law-abiding life (not committing any offense punishable by imprisonment, either felony or misdemeanor), during the period of suspension. [Our emphasis.]
While the trial court’s order of November 4, 1991, did state that the suspended sentence should be revoked, with sentencing to be deferred for a month, it is clear from the wording emphasized above that the trial judge changed his mind before the actual sentencing on December 9 and declined to revoke the suspended sentence. As there was no revocation of the sentence, the statutory provision Ms. DeHart relies on is not applicable. Written findings are required only when suspension or revocation is revoked. See § 5-4-310(b)(5).
Scarlett DeHart next argues the evidence at the revocation hearing was insufficient to support a finding that she had committed any crime, and therefore, revocation was not appropriate. Again, the argument presupposes, incorrectly, a revocation was ordered. Consequently, whether there was or was not sufficient evidence to show she had committed the offense is moot.
Ms. DeHart next argues that the finding of the parole board was res judicata as to the issues decided in that hearing. Prior to the revocation hearing on November 4,1991, a hearing was held before the parole board and a summary and finding of the parole board was filed on September 9, 1991. The parole board was apparently considering the effect of the allegation that she had committed the offense of obtaining controlled substances by fraud. The board found there was insufficient evidence to find she had violated the conditions of parole and DeHart now contends this proceeding was a bar to the later revocation hearing on November 4th because it involved the same issues.
However, we can’t consider the argument as there is no abstract of the proceedings of the parole board. With no abstracted record of that proceeding, we have no way to review the argument. See Rule 9, rules of the Arkansas Supreme Court and Court of Appeals.
The final argument involves a second revocation hearing. On December 13, 1991, appellant was arrested for shoplifting in a Kroger store. The state subsequently filed a petition to revoke her suspended sentence and a hearing on the matter was held on April 6, 1992. Two witnesses testified. The first was Scott Renfroe, a lieutenant for the Pope County Sheriffs Office who was working part-time as security guard in Kroger at the time the offense occurred. The other witness was the appellant. Their versions differed as to an episode involving a bottle of perfume. Renfroe testified he had seen DeHart put the perfume bottle in her purse and leave the store without paying for it. She testified she merely laid it on a check-out stand as she was being checked out because she realized she did not have enough money to pay for it. The trial court stated at the conclusion of the hearing:
I do have a problem with the shoplifting. I think based on everything that has been presented to this court from the officer and Ms. Kendrick [appellant DeHart], the more believable version of what took place out there rests with the officer. I think that conduct violated a condition of her suspended sentence.
The trial court entered a judgment on April 24,1992, which reads in part:
After hearing testimony of witnesses, examination of exhibits and argument of counsel, the court, being well and sufficiently advised, finds by a preponderance of the evidence that the defendant did violate the conditions of her suspended [sic] by failing to live a law-abiding life, to wit: defendant was convicted of shoplifting in Pope County Municipal Court.
Appellant argues the trial court was in error in basing its decision on the municipal court judgment because that judgment is being appealed and is not yet a final conviction. However, the fact that it is on appeal does not prevent the trial court from using it as a basis for revocation. In Barnes v. State, 294 Ark. 369, 742 S.W.2d 925 (1988), the question was whether a revocation could occur before the appeal was concluded on the triggering offense. We answered in the affirmative:
We have held that a conviction in violation of probation warrants revocation even though the conviction may have been appealed. A conviction represented either a plea of guilty or nolo contendere or a finding of guilt beyond a reasonable doubt by a judge or jury. Given the fact that a revocation can be had in circumstances where the proof requirement is less stringent, see Morrisey v. Brewer, 408 U.S. 471 (1972), we find no error in revoking probation if a conviction has occurred, even though it may be on appeal.
Ms. DeHart also submits the trial court erred in relying on the municipal court conviction, as she was entitled to an independent determination by the trial court at the revocation hearing. We find no merit to this point. Judgments are generally construed like other instruments and the determinative factor is the intention of the court, gathered from the judgment itself and the record, including the pleadings and the evidence. Magness v. McEntire, 305 Ark. 503, 808 S.W.2d 783 (1991). Here, it is not entirely clear what was meant by the comment that Ms. DeHart was convicted of shoplifting in Pope County Municipal Court. However, any uncertainty is dispelled by the judge’s remark at the conclusion of the hearing that he was basing revocation on the fact that he found the security guard’s testimony more credible.
Affirmed as modified.
Suspended execution is now authorized under Act 956 of 1985 codified at Ark. Code Ann. § 16-90-115 (1987). | [
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Griffin Smith, Chief Justice.
Trustees of the W. R. Cherry estate joined with Roy Morrison in .an action against Dermott Drainage District, and Drainage District'No. 4.
In November, 1947, each District approved by resolutions certain work the United States proposed to do under authority of § 2 of the Flood Control Act of August 28, .1937, as amended. It was stated that Big Bayou Slough should be opened and cleared “to take care of the flood waters flowing or emptied thereinto.” The Districts agreed to provide without cost to the Federal Government the necessary lands, with a guarantee against damages, and to maintain the system in accordance with regulations prescribed by the Secretary of War under terms of the Flood Control Act of June 22, 1936, or similar legislation.
The complaint alleged .that Clearing and excavation work incident to reconditioning of Big Bayou Slough would not be a completed drainage undertaking when finished according to plans supplied the Government’s contracting finny that unconfirmed promises for additional work had been made by Government agents who had authority to make them, but even so, the promises were vague and indefinite. It was finally alleged that the Districts were without sufficient funds to adequately compensate landowners for increased damages they would sustain, hence the Commissioners were misinformed when they adopted the resolutions.
About twelve years before the trial of this case in September, 1949, considerable drainage work was done in a part of the area here involved when the Federal Government undertook to reclaim approximately 10,000 acres of overflow land partially drained by Big Bayou, or Big-Bayou Slough. The bayou’s course is generally north and south, and it lies mostly in Desha County, but partly in Chicot. There is testimony that in connection with this work ditches spoken of as laterals were cut. W. H. By-num, who personally owned 700 acres just east and north of Dermott, and who held stock in a corporation that owned 2,500 acres in Chicot County,' and an equal amount in Ashley County immediately west, testified that before the laterals were cut, Big Bayou served as a reservoir or receiving place for all of these lands and its general utility for' this purpose was reasonably satisfactory except when extreme floods came. With completion of the Government’s reclamation project, adjacent lands began to get- ‘ a considerable amount of water. ’ ’
When the appellant drainage districts passed their resolutions in 1947 authorizing Government work, the contractor started dredging and snagging at a point where Black Pond Slough empties into Big Bayou, not far from Bellaire, and proceeded north. The northern extremity of Ditch No. 4 is a mile or more north of Highway No. 4, on or near Sec. 30, Township 12 South, Range 4 West, in Desha County, and slightly more than two miles west of McGehee. Dermott Drainage District is approximately 22 miles long.
The landowners as appellees, in whose favor the Chancellor granted a restraining order, say that the construction complained of consists of eleven miles on the upper reaches of Big Bayou. A question asked by one of the attorneys for appellees and the answer indicate that assessed benefits against the Dermott District “were based upon a ditch extending from just east of the Missouri Pacific’s tracks north of Dermott and extending south” beyond the lands owned by those who are complainants here. In the course of trial where testimony was heard ore tenus by the Chancellor, many references were to a map filed as plaintiffs’ Exhibit No. 2, but the method of identification was not such as to bring into the record the places pointed to. For this reason we must assume that in this respect the trial Court was better informed as to landmarks, relative distances, and related matters not susceptible of determination here through answer of witnesses who were looking at places indicated, but not named for the record.
But generally it appears that Big Bayou Slough was originally utilized by the Dermott District in Chicot Count}''. An inset map shows the slough as beginning west of McGehee, extending south past Masonville, but west of that town, veering east in Sec. 29 in Chicot County, then southeast and south to its confluence with Black Pond Slough. An engineer’s drawing shows a line beginning more than a mile west and a little north of where the two sloughs join. It passes through Der-mott and extending northward parallels “Ditch No. 4,” terminating more than two miles west of McGehee. It is marked, ‘‘ Channel Clearing and Snagging, ’ ’ and the . distance is indicated as 11.6 miles.
Appellees contend that much of the Government work is new construction in that the bayous and original ditches are being widened and deepened. The defense answers that fresh soil near the old embankments was used as a foundation or base for machinery operating within the original confines and that it has been mistaken for new structure. It is also contended that because of imperative economy when the original work was done, stumps and an occasional tree were left. Dermott District was created in 1915 and its bonds have been paid. The dredge boat used in building the ditch was constructed slightly east of the Missouri Pacific Bailroad in Section 29, township thirteen south, range three west, Chicot County. But a witness for the protesting landowners testified that the point so described “was the most northern point of Big Bayou Slough that was dibg at that time.” This testimony adds confirmation to the general trend of discussions by witnesses who thought the bayou was a part of the drainage ditch system. B. W. Parrish, Chancery Clerk, testified that the organization papers affecting the Dermott District were not on file with other records relating to the undertaking, and that a diligent search for them was unavailing.
Appellees confine their complaint to that part of the Government work on the upper limits of Big Bayou. Six miles of the work is in the Dermott District. It follows that if appellees are correct in stating that the Dermott District “lies within Chicot County, with no part of it in Desha,” the litigating parties are not in disagreement on this point. But in designating the injury occasioned by District No. 4, (or, as the brief says, “Black Pond District No. 4”) appellees describe it as being immediately north of the Dermott District within Desha County. They also say that‘ ‘ five miles of said work has been and will be done in this District. ’ ’ They further complained that the 11.6 in mileage “of continuous work” would connect with District No. 4.
Testimony varied regarding the actual work that was being done, and witnesses for the plaintiffs did not all agree. D. W. Nall, a Chicot County Boad Supervisor, thought that near the Crenshaw dump on the Bellaire road paralleling Big Bayou the ditch would be 40 feet wide at the top, 20 feet at the bottom, and four feet deep, with a 15-ft. berm. Another witness testified that there had never been a “dug ditch” up Big Bayou beyond where the Missouri Pacific crosses [Big Bayou] north of Dermott; but this same witness said that he had, to some extent, privately drained his own land, and for that purpose had caused a ditch to be dug measuring 24 feet at the top and 16 feet across the bottom, “emptying into this new ditch.” Indicative of the uncertain character of testimony affecting terrain in its relation to the original pro]ects, one witness for plaintiffs was asked: ‘ ‘ How far [are] Big Bayou Lake and Big Bayou Slough from the southern end of Ditch No. 41”. A. “It is approximately a mile, I think.” Q-. “What type of drain did you have from the southern end of Ditch No. 4 over that mile to Big Lake Bayou?’’ A. “That was Big Lake itself — from the end of it down to the bayou. I have always called it slough.” But, said this same witness, the northern end of Big Bayou Slough where it connects with Ditch No. 4 “from bank to bank is tolerably wide. That’s been a long time ago, but I would judge it was 60 or 70 feet— that is, where the ditch empties into the slough. The banks- were natural, and not man-made. ’ ’
G-. M. Jones, a commissioner for the Dermott District, interpreted the resolution he participated in procuring as a request that the Government ‘ ‘ snag and clean out” Big Bayou ditch up to the county line. The purpose was to facilitate drainage and save the taxpayers. In doing the work the contracting firm used a large tractor with bulldozer for leveling purposes — “taking off the spoil — that is, the old ditch bank.” The result was a usable roadway. This work, incidentally, could create an honest though erroneous belief that the ditch was being widened. The course of the ditch, the main channel, had not been changed, and no laterals were dug. The contract called for dredging “the lower part on down as far as tlie District goes.” The same dredging firm had a contract “for clearing‘trees and brush and everything out of Big Bayon Slough. ’ ’ The witness knew, from personal observations, that “since that clearing — when the contract was first let at that time — there were big trees in the bayou: overcup or other species that grew like that. After these were cleaned out smaller [timber] grew [where the clearing had occurred] and the flowage was retarded. The present contract contemplated clearing these impediments to flowage.”
There had been testimony (J. B. Griswood for the plaintiffs) that the old ditch (that part not dredged, etc.) “after it came to the fork up there — naturally the old ditch is smaller than that cleaned up.” He thought that originally the southern end of the drainage system was larger than the northern reaches, but since the “reworking” there was not much difference. But, said he, in the “new ditch all the undergrowth is cleaned out and the old ditch has grown up. The saplings.are as big as my leg, and I couldn’t say how many drifts there are in it, but there is one [in particular] right at the bridge.” Mr. Griswood was also of the opinion that “the ditches” were not large enough to take care of water that might normally be anticipated, but “this new ditch will put the water anywhere from 12 to 14 inches deeper than before the construction. This is my observation, or sense.”
On the question whether the work complained of was new construction or maintenance, plaintiffs’ witness Nall testified that “with that new ditch in there — with a clean channel and as large as it is — you are bound to get more water and get it quicker on the Crenshaw dump. This will keep [the public road] under water longer, and [the water will reach it quicker] than it would if that ditch had never been dug, because it had grown up. Possibly some of the water up there did come from above the county line, but [the ditch or bayou] grew up to such an extent that, you might say, the water had to seep down —it came gradually. But now, with that open channel, there is nothing to [retard] the flowage in full force. When you get down to the end where the old ditch has grown up, it hasn’t been cleaned out and the [increased] water can’t get away. It is going to cover up the road deeper than before. ’ ’
Aside from the decree, the Chancellor gave a lengthy opinion that is very helpful to this Court, and is a practice to be commended. It was found that irrespective of any drainage laws allowing districts to clean and recondition ditches, the evidence disclosed that effect of the work done — whether new or maintenance (the point was not decided) — would be to accelerate flowage, and since the lower uncleaned drains were not large enough to care for increased waters from flash-floods or from prolonged rains, consequence of what was being done was the taking of private property for public use, without just compensation. District No. 4 had between $5,000 and $6,000 in its treasury, while the Dermott District’s balance was around $11,000. Property damages as estimated would be substantially in excess of these combined figures, although on this question the court did not make a specific finding.
We agree with the Chancellor that testimony preponderated in favor of the conclusion that more water would reach the area near Bellaire faster because of the work done, and that landowners below the juncture and perhaps for some distance above it within backwater areas would sustain damages. However, the decree points out that the work had been “practically completed” when the trial was had, and the Court properly declined to discuss “damages that might have happened and that might have been stopped” while the work was in its early stages. The injunction against the two districts merely restrained the Commissioners from doing anything else in carrying the project forward. The Federal Government and Delta Drainage Company were left untouched, hence the work continued to its completion insofar as'the restraining order affected it.
We do not pass upon matters not decided by the lower court except where judicial notice supplies the omission, therefore we do not say whether the work conlcl have been done under Pope’s Digest, § 4481 — Ark. Stát’s, § 21-533. It does not appear that Drainage District money was spent in any manner, but on the contrary the two commissions merely undertook to comply with Federal requests for protection under the Flood Control Act. The suit was not for damages against the commissioners for acts so obviously distinct from their powers as agents for the districts as to render them personally liable, nor were the districts asked to make restitution. The Chancellor appropriately declined to “freeze” the treasury funds held by each district, and only issued a restraining order that operated against something that in effect had been virtually finished.
Our conclusion is that the injunction came too late. At the time issued it could not serve a practical end, because the commissioners, respecting “further activity in connection with the project,” were little more than onlookers who had satisfied the Government’s primary requirement nearly two years before.
It is in evidence that plans were afoot — depending upon Congressional appropriation of funds for work already authorized — to extend, either by enlargement or dredging and snagging, the lower reaches of the Dermott District.
A gentleman’s agreement between Congressmen and Senators from Arkansas and Louisiana was delaying the upper work until Louisiana had taken steps to care for additional water. It is our view that the.drainage commissioners should not be restricted by an injunction affecting their conduct in 1947 when the primary interest of those complaining involves an enlarged outlet below Bellaire, and to the lower extremities of the Dermott District. If in undertaking to accomplish the improvements hinted at the commissioners- should exceed their legal authority, then by expeditions application entire relief could be obtained.
. In the present state of transactions, as reflected by the record here, jurisdiction for redress from damages already occasioned, if such resulted from illegal acts, would be in Circuit Court.
The restraining’ order will be dissolved, and the cause remanded with directions that the actions be dismissed if, upon a finding by the Chancellor, the work has been completed from a practical standpoint.
In appellants’ brief it is stated that Drainage District No. 4 is erroneously referred to in the complaint as Black Pond District No. 4; that this District is wholly within Desha County, and that no part of Dermott Drainage District is in Desha, but is principally in Chicot County. An engineer’s blue print, filed as an exhibit, shows Black Pond Slough. Throughout the testimony there are references to “Black Pond,” and “Black Pond Slough,” and what the complaint mentions as Black Pond District No. 4 may have been used as interchangeable expressions.
Delta Drainage Company contracted with the Government to do the work mentioned in the specifications upon which the bid was predicated.
“Berm,” or berme, is defined as a narrow ledge; specifically, a fort., a space of ground or a terrace [varying in width] left [in olden times] between the rampart and the moat or foss, designed to receive the ruins of the rampart in the event of a bombardment and to prevent the earth from filling the foss. The term is now generally used to designate the bank or side of a canal, and in practice has been somewhat broadened to include other forms of construction.
A timber tree of the southern United States, with acorns deeply-immersed in the cups; also, any of several other species of this character, as the bur oak. | [
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Steele Hays, Justice.
The Kansas City Southern Railway Company, as an economy measure, elected to close its station at Mena, Arkansas, and assign the station agent to another location. Pursuant to Ark. Stat. Ann. § 73-809 (Repl. 1979), the company filed its Notice of Discontinuance of Agency Station with the Arkansas Transportation Commission, asserting that the discontinuance would result in operating economies consistent with public convenience and necessity. The closing was opposed by Mena residents and railroad customers. After taking testimony the Commission found that the closing would not result in operating economies consistent with public convenience and necessity and denied the request. The denial was affirmed by the Circuit Court and the appeal is here under Rule 29 (1) (d). We affirm.
Ark. Stat. Ann. § 73-809 (Repl. 1979) provides that a railroad may discontinue an agency station by showing the Commission that it has operated the station at a financial loss for not less than one year, or that operating economies consistent with public convenience and necessity would result. The railway company conceded that its annual revenues had exceeded its expenses at Mena by an amount it declined to disclose, but it claimed that economies would be effected by eliminating direct station expenses, which exceeded $31,000.00 in 1980. The company said a time-and-motion study of the station showed only two and one-half productive hours of work being performed daily by the agent. The company said it was establishing a new way-billing system and taking all car orders by a toll-free telephone network at its customer service center in Shreveport. It argued that all the duties of the agency could be performed effectively through Shreveport and that the new arrangements would be just as satisfactory to railway customers as soon as they became used to it.
We have said that appeals from Circuit Court in cases of this type are heard de novo. Boyd v. The Arkansas Motor Freight Lines, Inc., 222 Ark. 599, 262 S.W.2d 282 (1953). And that we review all the evidence and make such findings of fact and law as we deem just, proper and equitable, as in chancery cases. Arkansas Commerce Commission v. St. Louis Southwestern Railway Company, 247 Ark. 1032, 448 S.W.2d 950 (1970). Fisher v. Branscum, 243 Ark. 516, 420 S.W.2d 882 (1967). But we have recognized that where the decision below is persuasive, or the evidence evenly balanced, full effect must be accorded factual findings and the views of the administrative agency must prevail. Arkansas Express Inc. v. Columbia Motor Transport Co., 212 Ark. 1, 205 S.W.2d 716 (1947).
Here, the Commission heard the testimony of six witnesses in opposition to the closing. Some of the testimony was general, but much of it attested to the need for an agent in Mena, that the town was growing and shipments were increasing. There was considerable complaint over the attempt to substitute telephone service to Shreveport in place of direct contact with an agent in Mena. Witnesses said it was difficult to reach Shreveport; frequently the caller got only a recording that the lines were busy, or would be put on hold for long periods. Often the caller was told the computer was “down” and to call back; sometimes a clerk would be unable to understand the instructions given; several witnesses described telephone service as very unsatisfactory. Other problems discussed were that without the agent, customers were required to do many of the functions normally performed by the agent. In short, the testimony fully supports the findings of the Commission that operating economies did not outweigh the inconvenience which would result from the closing.
In Louisiana and Arkansas Railway Co. v. Arkansas Commerce Commission, 235 Ark. 506, 360 S.W.2d 763 (1962) we upheld the Circuit Court in affirming the Commission’s denial of an application to eliminate a station agent upon a finding that the closing would result in undue inconvenience to the public, notwithstanding the fact that the expenses of the station substantially exceeded the revenues for two years in a row. We quoted from Alabama P.S.C. v. Atlantic Coast Line Railway Co., 45 So.2d 449 (Ala., 1950).
Another statement of the principle is that although the operation of the entire system yields a net profit, the loss resulting from the maintenance of a certain service on a particular branch must be of sufficient importance to outweigh the inconvenience which the public will suffer as a result thereof.
We cannot say the findings of the Commission in this case are not supported by the evidence and, therefore, the judgment of the Circuit Court is affirmed. | [
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Frank Holt, Justice.
A jury awarded appellee $2,000 for compensatory damages in a cause of action based upon malicious prosecution and abuse of process. The sole contention on appeal is that the abuse of process instruction was not warranted by the evidence.
In determining if the evidence is sufficient to submit a cause or issue to the jury, we review the evidence most favorable to the appellee. Baldwin v. Wingfield, 191 Ark. 129, 85 S.W. 2d 689 (1935). Appellee Nelson was hired by appellant McAdams as an assistant driver to Harold Starnes in the operation of one of McAdams’ fleet of tractor trailer rigs. During several out of state deliveries, the truck was dispatched to Los Angeles, California, where Starnes and Nelson arrived on Monday, June 29, 1970. The load was delivered and the two drivers checked into a motel. Tuesday morning Starnes called McAdams’ dispatcher for further instructions and requested additional expense money. Company policy required a call each day from them. The dispatcher informed Starnes that no loads were available and that additional living expense money had been wired to Jerry’s Richfield Truck Stop. Starnes and Nelson proceeded to the truck stop but found no money for them. Starnes again called the dispatcher and was reassured that this expense money had been sent there. The two drivers again ascertained that no funds were there and also checked with the local Western Union where they found no money for them. Both were broke and ap-pellee had to borrow funds. A call was made every day requesting financial relief and hauling instructions until appellee’s arrest on Sunday, July 5. It appears that upon Nelson’s call on July 5 unpleasant words were exchanged between him and the dispatcher, resulting in Nelson’s refusal to tell the dispatcher the whereabouts of the truck other than it was in the vicinity. Nelson, however, furnished his address and telephone number and the local police arrived soon thereafter with a warrant for Nelson and Starnes’ arrest. During the week the warrant had been sworn out by appellant Smith at the direction of appellant McAdams. The warrant charged Nelson and Starnes with larceny by bailee. Ark. Stat. Ann. § 41-3929 (Repl. 1964). Upon his arrest Nelson took the deputies to the nearby truck. Appellant Mc-Adams immediately sent a driver to Los Angeles to pick up his truck. Appellee Nelson and Starnes waived extradition and were returned to Little Rock where the alleged offense was dismissed by the local municipal court.
At trial McAdams adduced evidence that for several days he could not locate appellee Nelson and Starnes or the whereabouts of his property and his purpose in procuring the warrant was the return of his truck. He further testified that he did not intend to have the men arrested and neither knew nor cared whether the two drivers were tried on the charges.
The requirements giving rise to a cause of action for abuse of process are found in Prosser, Law of Torts, § 121 (4th Ed. 1971), and are:
(1) a legal procedure set in motion in proper form, even with probable cause, and even with ultimate success, but,
(2) perverted to accomplish an ulterior purpose for which it was not designed, and
(3) a wilful act in the use of process not proper in the regular conduct of the proceeding.
See also Harper and James, I The Law of Torts, § 4.9 (1956), and generally 72 C.J.S. 1189, and 1 Am. Jur. 2d 250. A paucity of cases involving this type of a tort have reached the appellate level in this jurisdiction. The leading case dealing with the cause of action is Lewis v. Burdine, 240 Ark. 821, 402 S.W. 2d 398 (1966), where a wife was sued by a collection agency for her husband’s debt to a doctor. In the same suit a writ of garnishment was issued before judgment and the wife’s salary impounded resulting in her loss of employment. The wife was found not liable on the debt. The writ of garnish ment was held to have been a misuse or abuse of process. See also Baxley v. Laster, 82 Ark. 236, 101 S.W. 755 (1907), dealing with abuse of process and writs of garnishment issued for the purpose of harassment.
The crux of the misuse or abuse of process is the improper use of it after issuance. In other words, abuse of process constitutes a form of extortion or coercion. Prosser, supra. The test of process abuse is not whether the process was originally issued with malice and without probable cause. The remedy in that situation would be an action for malicious prosecution which was asserted in the case at bar. Here we have no abuse or coercive act subsequent to the issuance of the warrant. Although it be said that McAdams’ testimony confirmed an ulterior purpose in procuring the warrant, no coercive act followed such as existed by the writ of garnishment in Lewis v. Burdine, supra. Without the coercive distinction every action for malicious prosecution would include the tort of abuse of process. Certainly it cannot be said that the reclaiming of one’s own property, as in the case at bar, should be characterized as a subsequent act that constituted a perverted use of the warrant. We hold that the facts, when viewed most favorably to ap-pellee, do not support a submissible issue on abuse of process.
Reversed and remanded. | [
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Frank Holt, Justice.
The parties to this lawsuit were divorced in Texas in 1970. The divorce decree incorporated by reference a property settlement that provided, inter alia, that the appellee would make semi-monthly payments to appellant for the remainder of her life or until she remarries. The appellee ceased making these payments in 1973. The appellant obtained judgments in Texas for the arrearages in 1974 and in 1978. The 1974 judgment was affirmed in Peddicord v. Peddicord, 522 S.W.2d 266 (Tex. Civ. App. 1975). She has not obtained satisfaction of those judgments.
The appellant, who is now domiciled in Pulaski County, filed a petition for registration of foreign judgments, pursuant to Ark. Stat. Ann. § 29-801 et seq. (Repl. 1979), in Pulaski Chancery Court on February 19, 1982. A summons and a copy of the petition were sent to the appellee via return receipt mail, and the return receipt bears the signature of the appellee. The appellee did not appear and the chancellor granted the petition. As requested in the petition, the chancellor not only registered the foreign judgments, he also held that the divorce judgment called for periodic payments of alimony under the laws of the State of Arkansas and that garnishment for the arrearages of alimony could issue under the laws of Arkansas.
The appellee receives retirement pay from the United States Navy. After the registration of the Texas judgments, the appellant sought garnishment of the appellee’s retirement pay and a judgment of garnishment was entered against the Department of the Navy on April 19, 1982. On April 22,1982, the appellee appeared specially and moved to have the registration of the foreign judgments set aside and vacated pursuant to ARCP Rule 60 (b) and (c). He also moved for an injunction pendant lite to suspend the garnishment proceedings. The trial court vacated and set aside his prior registration of foreign judgments order, finding that it did not have personal jurisdiction over the appellee and it was not appropriate for the court to construe the Texas property settlement agreement as alimony. The court also vacated and set aside the writ of garnishment. The court, however, ordered the Texas judgments to be registered as judgments quasi-in-rem but refused to construe them as alimony.
The appellant’s first and second arguments for reversal are closely related. She asserts that the chancellor erred in holding that it was not appropriate for the court to “construe” the Texas judgments and that the chancellor erred in setting aside the first order which construed the arrearages to be alimony under Arkansas law. The reason it is important to determine whether the arrearages are “alimony” is that the United States has waived sovereign immunity and consented to be subject to garnishment proceedings for “alimony payments.” 42 U.S.C § 659 (a).
It is undisputed that the statutes and public policy of Texas do not sanction an award of alimony. Francis v. Francis, 412 S. W.2d 29 (Tex. 1967). It is also undisputed that the Texas Court of Civil Appeals has recently ruled the type of settlement presented here is not to be construed as alimony within the meaning of 42 U.S.C. § 659. Shaw v. Shaw, 623 S.W.2d 148 (Tex. Civ. App. 1981). Thus, it appears that the appellant is asking the courts of Arkansas to construe her Texas judgment in a manner that the courts of Texas would refuse and to provide her with a method of enforcing those judgments that would be denied her in Texas. Article IV, § 1 of the Constitution of the United States requires us to accord full faith and credit to the Texas judgments. We are required “to give to the judgments of other states the same conclusive effect between the parties and their privies as is given such judgments in the state in which they were rendered.” Leflar, AMERICAN CONFLICTS LAW § 63 (Third Ed. 1977). We find no authority which requires us to give out-of-state judgments an effect that they would not be given in the state in which they were rendered.
In view of our holding we deem it unnecessary to discuss the other arguments.
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Per Curiam.
Petitioner Jerry Hardy McCroskey was convicted of aggravated robbery and sentenced as an habitual offender to a term of 20 years imprisonment in the Arkansas Department of Correction. The Court of Appeals reversed the conviction. McCroskey v. State, 266 Ark. 806, 586 S.W.2d 1 (Ark. App. 1979). He was retried, convicted and sentenced as an habitual offender to a 30 year term. We affirmed. McCroskey v. State, 271 Ark. 207, 608 S.W.2d 7 (1980). Petitioner now seeks permission to proceed in the circuit court pursuant to A.R.Cr.P. Rule 37.
Petitioner challenges the sufficiency of the evidence on which he was convicted, but insufficiency of the evidence is not a proper ground for postconviction relief. Rule 37 affords a remedy when the sentence in a case was imposed in violation of the Constitution of the United States or of this State or is “otherwise subject to collateral attack.” Rule 37.1. Challenges to the sufficiency of the evidence are a direct attack on the conviction which must be made on direct appeal. As such, the issue is not cognizable under Rule 37. Swisher v. State, 257 Ark. 24, 514 S.W.2d 218 (1974).
The only other allegation raised by petitioner is that the trial court “committed constitutional error” in accepting a stipulation in the second stage of his two-step trial to the effect that he had been convicted of three prior felony offenses. He states that he was not asked if he agreed with the stipulation or whether he was represented by counsel in the prior proceedings. No other evidence of the convictions was entered in the record.
On direct appeal from another subsequent conviction, in which petitioner’s prior convictions were also established by stipulation, petitioner successfully raised this same argument. In that case, we reversed the judgment and remanded the cause for a new trial unless the prosecutor elected to assume the burden of proving at a hearing that petitioner voluntarily and intelligently agreed to the stipulation and that he was in fact represented by counsel in the earlier cases. McCroskey v. State, 272 Ark. 356, 614 S.W.2d 660 (1981). Petitioner apparently expects similar relief even though he now raises the issue in a petition for postconviction relief rather than on direct appeal. Rule 37, however, was not intended to substitute for appeal. Rule 37 does not permit a petitioner to raise questions which might have been raised at trial or on the record on direct appeal, unless the questions are so fundamental as to render the judgment void and open to collateral attack. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). Even questions of constitutional dimension are waived if not raised in accordance with the controlling rules of procedure. Collins v. State, 271 Ark. 825, 611 S.W.2d 182 (1981); Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934, reh. denied, 268 Ark. 315, 599 S.W.2d 729 (1980). See also Moore v. Illinois, 408 U.S. 786 (1972). In this Court, contentions not argued by the appellant on first appeal are waived. Collins, supra, citing Sarkco v. Edwards, 252 Ark. 1082, 482 S.W.2d 623 (1972). Even though petitioner asserts that his sentence and judgment are void because of the stipulation, he does not contend that he was not convicted of the prior felonies or that he was not represented by counsel in the earlier proceedings. He does not in fact allege that any undue prejudice arose out of the proceedings. He clearly does not demonstrate that his sentence and judgment are void. Accordingly, he is not entitled to postconviction relief.
Petition denied. | [
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Steele Hays, Justice.
The question is whether appellants substantially complied with Arkansas Rules of Appellate Procedure Rule 3(e). Concluding that substantial compliance was lacking, we dismiss the appeal.
This medical malpractice case resulted in a verdict for St. Mary’s Hospital and Dr. Finley Turner (defendants-appellees). After a motion for a new trial was denied, Rosemary and David McElroy (plaintiffs-appellants) filed a timely notice of appeal. Appellants designated the entire record and, as required by ARAP Rule 3(e), declared that the transcript had been ordered from the court reporter. Subsequently the appellees moved to dismiss the appeal, and after a hearing, the trial court granted the motion. Appellants have appealed from that order.
We begin by pointing out that we have held in several recent cases that only appellate courts have authority to dismiss an appeal. In Johnson v. Carpenter, 290 Ark. 255, 718 S.W.2d 434 (1986), we said:
We are troubled by the apparent misunderstanding to the effect that trial judges may dismiss appeals. While we give the trial court the authority to extend the time for docketing the record with us or with the court of appeals, our rules of appellate procedure do not confer on the trial court the power to dismiss appeals. Those rules, as we said of the comparable statutes in Davis v. Ralston Purina Co., supra, and again about the rules in Brady v. Alken, Inc., supra, are for this court to apply. Nine times out of ten we will be able to decide the question of timeliness of a notice of appeal, or prejudicial failure to comply with other requirements, from the record before us. If that is not the case, we may remand the case so that a record on the matter at issue may be made in the trial court, but we do not ask the trial courts to determine who may and who may not appeal the trial courts’ decisions. Although the issue of appealability was thus not properly before the chancellor and probate judge, we reach the same conclusion he did. Treating Johnson’s appeal from that order as a motion to dismiss Carpenter’s appeal, we deny the motion.
Not long afterwards that principle was repeated in Venhaus v. Pulaski County Quorum Court, 291 Ark. 558, 726 S.W.2d 668 (1987):
In Estes v. Masner, 244 Ark. 797, 427 S.W.2d 161 (1968), this court stated that “[i]t is true that once an appeal is taken to, and docketed in, this court, the trial court is deprived of jurisdiction to further act in this matter.” Again in Brady v. Alken, Inc., 273 Ark. 147, 617 S.W.2d 358 (1981), this court held:
We first consider the contention that the trial court erred in dismissing the appeal. There is no question that the trial court still had jurisdiction of the case when the order of dismissal was entered because the record had not yet been lodged in the appellate court.
Brady and Estes indicate that a trial court retains jurisdiction as long as the record has not been lodged in the appellate court. However, this court recently announced an absolute rule prohibiting a trial court from ever dismissing an appeal. In Johnson v. Carpenter, 290 Ark. 255, 718 S.W.2d 434 (1986), we explained that “our rules of appellate procedure do not confer on the trial court the power to dismiss appeals. Those rules . . . are for this court to apply.” (emphasis in original). Accordingly, the chancellor erred in dismissing Venhaus’s appeal.
Thus the rule is firmly settled that a motion to dismiss an appeal is not proper in the trial court. Nevertheless, we can treat such a motion as having been made in this court. Johnson v. Carpenter, supra.
This record establishes the following: Notice of appeal was dated March 2, and filed March 7,1988. As required by Rule 3(e) the notice designated the entire record “and all proceedings, exhibits, evidence and documents introduced into evidence” and contained the requisite statement that the transcript had been ordered from the court reporter. It is undisputed that no order for the transcript had been made when the notice of appeal was filed.
On March 30, appellants contacted the court reporter by telephone to state that an amended designation of the record would be filed in the future but no order for the transcript was given. On April 11, appellants wrote to the court reporter designating lesser portions of the transcript. This letter, which was received by the court reporter on April 18, constitutes the initial order for the transcript. On May 10, points to be relied on were mailed to appellees and on May 16, the points to be relied on were filed. On May 31, a motion for an extension of time was filed and granted to July 1. Appellees moved to dismiss the appeal on June 13.
Where the notice of appeal fails to state that the transcript has been ordered, but it has in fact been ordered, we have not been disposed to dismiss an appeal for what may be seen as an inadvertent omission of the language required under Rule 3(e). Phillips v. LaValle, 293 Ark. 364, 737 S.W.2d 652 (1987). But where the facts show that the appellant has failed to order the transcript in a timely manner we have held that substantial compliance is lacking. Hudson v. Hudson, 277 Ark. 183, 641 S.W.2d 1 (1983); Appleton-Rice v. Crumpler, 279 Ark. 450, 655 S.W.2d 1 (1983); Phillips v. Marianna Ford Tractor, Inc., 290 Ark. 75, 716 S.W.2d 763 (1986).
Here, we are confronted with a situation not previously seen — the appellants affirmatively, but falsely, state that the transcript has been ordered when in fact it has not. Nor was such misstatement promptly corrected by a timely order for the transcript. Indeed, it was another five weeks before the court reporter was actually notified that a transcript was ordered. This not only operates to delay the appeal process, which Rule 3(e) was intended to prevent, but smacks of a deception on the court and opposing counsel.
Appellants rely most heavily on Johnson v. Carpenter, supra. But there there was a misunderstanding between counsel for appellants and the court reporter, the implication being that there was a timely order for the transcript. Here, there was no misunderstanding, nor any potential miscommunication. The court reporter’s testimony that April 18 was when the transcript was actually ordered by appellants was not refuted.
Appellees charge the appellants with an on-going pattern of delay: that appellants’ motion for a new trial contained a certificate of service upon appellees as of February 9,1988, yet appellants delayed serving the motion upon appellees until February 22; that when appellants wrote the trial judge on February 19, concerning the motion for a new trial they requested that a hearing be delayed for some ninety days; that when appellants filed an amended designation of record the designation was equivocal, purporting to reserve the right to designate additional testimony at some future time; that not until May 16, some two and one-half months after the notice of appeal, did the appellants file the points to be relied upon, which, under Rule 3(g) should accompany the notice of appeal where less than the entire record is designated. In short, we have no difficulty determining that appellants’ actions were calculated to cause a material delay in the appeal process and constituted a failure to substantially comply with Rule 3(e).
Appeal dismissed.
Dudley, J., not participating.
Purtle, J., dissents. | [
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Robert H. Dudley, Justice.
The sole point of appeal is the alleged inadequacy of a jury verdict. A car wreck occurred when the appellee, the defendant below, ran a stop sign and struck the appellant’s car. The jury returned a verdict which awarded the full amount of claimed property damage, but only a part of the claimed medical expenses and nothing for lost wages, mental anguish, or future medical expenses. The trial court denied appellant’s motion for a new trial. We affirm the trial court’s ruling.
Under ARCP Rule 59(a)(5), the inadequacy of the recovery can be a ground for a new trial. When the primary issue is one of liability, as distinguished from the inadequacy of the award, we sustain the trial judge’s denial of a new trial when the verdict is supported by substantial evidence. But when the primary issue is the alleged inadequacy of the award, we sustain the trial judge’s denial of a new trial unless there is a clear and manifest abuse of discretion. Warner v. Liebhaber, 281 Ark. 118, 661 S.W.2d 399 (1983).
In such a review of the trial court’s discretion, an important consideration is obviously whether a fair-minded jury might reasonably have fixed the award at the challenged amount, here $1,082.00. The verdict in this case is understandable and defensible.
The appellant testified that two days after the accident she found a lump on her right breast, and that for four days her back hurt severely and then ached for a longer period of time. She did not miss any work because of the bruise or back ache. She went to four different medical doctors, and she stated that she missed work when she went for the visits with the doctors.
Her testimony that she lost wages because she had to see four different doctors is disputed as a matter of law because she was an interested party. Raiborn v. Raiborn, 254 Ark. 711, 495 S.W.2d 858 (1973). The jury may well have decided it was neither reasonable nor necessary for her to visit four doctors, and they may have been unable to determine by a preponderance of the evidence which visits reasonably and necessarily caused a loss of wages, if any. The alleged suffering of mental anguish was also disputed as were the future medical expenses.
With regard to the medical bills, the jury may well have found that only a portion of claimed medical expenses was properly attributable to the accident since the thickening of the right breast caused by necrosis dissipated within a few weeks. Further, one doctor found fibrocystic changes in both breasts, not just the right breast, in which the necrosis was found after the accident.
Under these circumstances, we cannot say the trial court clearly and manifestly abused its discretion in denying a new trial.
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Darrell Hickman, Justice.
The only question on appeal is whether the trial court was wrong in directing a verdict in favor of the appellee, International Paper Company, at the close of the plaintiff-appellants’ case. The trial judge, in his ruling, considered the evidence in a light most favorable to the appellants and found no substantial evidence of negligence on the part of International Paper Company. We conclude he was correct and affirm the judgment. See Midwest Bus Lines, Inc. v. Williams, 243 Ark. 854, 422 S.W.2d 869 (1968).
The Nicholses were injured when their car was struck by falling logs from a vehicle driven by Tony Nelson. These logs are called billets in the pulpwood industry, and are approximately six feet in length and eight inches in diameter. Nelson had a contract to haul loads of billets for International Paper Company using his own tractor and an International Paper Company trailer. It is undisputed that it was the duty of International Paper Company to load the billets on the trailer and then Nelson’s duty was to secure the load with a chain and deliver it. It was during such a trip, about fifteen miles from the woodyard that the accident occurred. The Nicholses sued Nelson and International Paper Company for damages. Nelson’s insurance carrier settled his case before trial, but it went to trial as though no settlement had taken place. The trial court directed a verdict on International Paper Company’s behalf after the plaintiff-appellants rested their case.
The appellants argue that Nelson testified there were only three things that could have caused the accident: Improper loading, hauling, or binding; the jury could have inferred International Paper Company was negligent in the loading. Nelson testified that he knew he had properly bound the wood and was not negligent in hauling it, and that he accepted the load as properly loaded. Portions of his exact testimony are pertinent.
Q. Okay, I’m sure, Mr. Nelson, that this played on your mind many times since this accident. Do you know what went wrong, what caused that load of wood to fall?
A. No, sir, I do not.
Q. At what phase do you think something did go wrong?
A. It would only be speculation and I don’t know what it could be.
# # #
Q. Can you tell the jury what happened to make that load go off?
A. No, sir, I can’t.
Q. You have no explanation?
A. None at all.
Q. And it was loaded properly? You looked at it?
A. Yes, sir.
Q. And you were not driving too fast?
A. No, sir.
It is argued that since the trailer was picked up by Nelson after working hours it is possible that the load was not leveled or “bumped” by the International Paper Company employees and that Nelson took the load anyway. Bumping is a procedure which balances the billets evenly on the trailer so that they extend the same distance on each side of the trailer. Nelson testified he could tell the load had been leveled and bumped; he saw marks on the billets where a grapple was used to level the load. He had been hauling billets for ten years and to him it was obviously level and balanced. He said he never had and would not accept a load that was not properly loaded.
Herman Terrell Lasiter, a foreman for International Paper Company, testified he was in charge of loading trucks and watched parts of the loading operation that day. He said there was no doubt in his mind Nelson’s truck was properly loaded. When asked what happened, he replied that he had no idea.
A state trooper, who investigated the accident, testified that Nelson told him he was traveling fifty-five miles per hour and that he found no evidence that Nelson was speeding. Nelson said up until the accident he had checked the load visually in his mirrors, had seen no problems, and did not stop at any time to check the load and see if it had settled. It was not unusual for a load to settle en route and need adjustment. Nelson said he could tell when such an adjustment was needed because the chain would loosen and he could see that in his mirrors. Nelson started losing logs in an 80 degree curve when the accident occurred. At the same time he saw the Nicholses’ vehicle entering the curve on the opposite lane. He said he began using his trailer brakes when he saw he was losing his load, rather than jamming his truck brakes, to avoid jackknifing. His vehicle came to rest about 600 or 700 feet beyond where the first billets were lost.
It is the appellants’ argument that this evidence is sufficient to allow a jury to infer that the cause, or one cause of the accident, was the negligence of International Paper Company in loading the trailer. If the jury did so find, it would be speculation that it was International Paper Company’s negligence which caused the accident.
It is true that the plaintiffs were apparently not guilty of any negligence and they did prove that an accident happened. But that is not enough. In W. PROSSER, LAW OF TORTS § 39, the burden of the plaintiff in such a case is explained.
The mere fact that an accident or injury has occurred, with nothing more, is not evidence of negligence on the part of anyone. . . . What is required is evidence, which means some form of proof; and it must be evidence from which reasonable men may conclude that, upon the whole, it is more likely that the event was caused by negligence than that it was not.
The evidence in this case was Nelson’s testimony that the load was properly loaded and bound, and that he was not negligent in driving. He knew of no cause of the accident. The yard foreman’s testimony confirmed Nelson’s testimony on loading. The plaintiffs simply did not offer one fact or any proof from which the jury could reasonably conclude International Paper Company was guilty of any negligence that was the cause of the accident. The appellants have made a legal conclusion the accident was caused from improper loading with no fact to base that conclusion on.
The trial judge considered the possibility that the plaintiffs may have sustained their burden of proof under thie theory of res ipsa loquitur. The trial judge was correct in finding that the doctrine does not apply in this case. First it must be shown that the accident which occurred ordinarily would not have happened in the absence of negligence and it must be caused by an agent or instrumentality within the exclusive control of the defendant. The load was not under the exclusive control of the defendant. The load was not under the exclusive control of International Paper Company at the time of the accident.
It must be shown that the defendant was responsible for all reasonably probable causes of the accident.
It is never enough for the plaintiff to prove merely that he has been injured by the negligence of someone unidentified. Even though there is beyond all possible doubt negligence in the air, it is still necessary to bring it home to the defendant. On this too the plaintiff has the burden of proof by a preponderance of the evidence; and in any case where it is clear that it is at least equally probable that the negligence was that of another, the court must direct the jury that the plaintiff has not proved his case. The injury must either be traced to a specific instrumentality or cause for which the defendant was responsible, or it must be shown that he was responsible for all reasonably probable causes to which the accident could be attributed.
PROSSER, supra; see Dollins v. Hartford Accident if Indemnity Co., 252 Ark. 13, 477 S.W.2d 179 (1972)
There was not any evidence which would allow the j ury to eliminate all causes of this accident other than an improper loading of the trailer. Therefore, res ipsa loquitur could not be applied in this case.
Affirmed.
Adkisson, C.J., and Purtle, J., dissent. | [
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Tom Glaze, Justice.
This case involves a dispute over the amount of compensation, if any, the appellee, Richard Courson, owes appellant, Crockett & Brown, P.A. (C & B), for its legal services. Courson was shot with a shotgun by a Thomas Averette, and as a result, Courson was totally blind in one eye and sustained a thirty percent loss of vision in the other. On July 5, 1989, Courson retained C & B to represent him in his claim against Averette. by signing a contract whereby (1) he agreed to pay C & B a retainer of $7,500, (2) he would pay an hourly fee up to $15,000 (including the $7,500 retainer), plus out-of-pocket expenses and, in addition, (3) C & B would receive ten percent of any recovery which exceeded $30,000. Courson paid the retainer fee amount to C & B, and five months later, C & B filed a negligence suit against Averette.
The events that led to this acrimonious litigation between C & B and Courson began after C & B demanded policy limits, $300,000, from Averette’s insurance carrier and when the carrier eventually responded a year later, January 17,1991, with a counter-settlement offer in the sum of $100,000. Courson immediately rejected the offer, but C & B suggested to Courson that the offer was reasonable. Afterwards, Courson’s relationship with C & B nose-dived. In fact, C & B then asked Courson to remit the balance of the fees and costs ($9,889.19) due under their July 5 agreement to which Courson responded that he was unable to pay. C & B informed Courson that, if he did not comply with their July 5 contract, he would have to enter a new agreement whereby C & B would receive one-third of any settlement reached at least sixty days before trial or forty percent if settled within sixty days of trial. Courson apparently indicated to C & B that he had signed and returned the agreement to C & B when, in fact, he had not done so. Instead, Courson hired other attorneys, William R. Wilson, Jr., Gary Corum and John Richard Byrd (W C & B), and notified C & B of its termination on March 11, 1991.
W C & B requested C & B to turn over Courson’s file, but C & B refused, stating Courson by this time owed it more than $21,000 in fees and expenses. C & B related it would release its file only when Courson performed his part of the contract. W C & B proceeded with their representation of Courson, which resulted in a $300,000 settlement with Averette’s insurance company. This settlement amount was placed into the court’s registry, and C & B brought its claim for recovery under its July 5 contract and further asked that a lien be placed on Courson’s cause of action. Courson responded, arguing C & B was not entitled to anything, including the $7,500 retainer paid it, because none of the work C & B performed inured to Courson’s benefit.
After conducting an extensive hearing bearing on the parties’ respective claims, the trial court held that Courson had discharged C & B for cause since (1) C & B failed to require Averette to disclose his insurance coverage or to determine whether or not punitive damages were covered, (2) members of C & B expressed displeasure with Courson when Courson refused the $100,000 offer, and (3) Courson was justified in being disturbed about the way in which his case was proceeding. The trial court further found that, under Ark. Code Ann. § 16-22-303 (1987), C & B'was entitled to a reasonable attorney’s fee in the amount of $15,000 and costs incurred, $2,541.27, which should be credited with the $7,500 amount Courson already had paid. The court awarded C & B a lien upon Courson’s settlement proceeds and further ordered C & B to deliver Courson’s file to W C & B within ten days.
C & B brings this appeal, arguing three points for reversal. Courson cross-appeals, urging the trial court erred in two respects. We review these respective claims as the parties raised and argued them on appeal.
In considering C & B’s points, we have difficulty in reaching the merits of any of its arguments. First C & B seeks in this appeal to enforce not its July 5 agreement with Courson, but instead its purported amended and substituted agreement to which C & B claims Courson agreed, giving C & B a third of the $300,000 he eventually recovered in this cause. Among other things, C & B contends on appeal that Courson had stated that he had signed the new contract submitted to him by C & B, and he was estopped to deny it. However, in reviewing the record, we cannot find where this contention was ever presented to the trial court below. C & B conceded as much in oral argument. As we have repeatedly held before, this court will not countenance an argument raised for the first time on appeal. Lytle v. Wal-Mart Stores, Inc., 309 Ark. 139, 827 S.W.2d 652 (1992); Mini Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 780 S.W.2d 543 (1989).
In its second point, C & B submits that the trial court erred in failing to enforce C & B’s request for a retaining lien, but this issue appears to be moot. As Courson submits in response, the trial court in its October 28, 1991 order directed Courson’s personal effects be returned and for his files to be copied and given toWC&B.C&B acceded to these directions, thereby making moot any prior dispute on this point between the parties.
Concerning C & B’s final point, it argues the trial court erred in failing to award it attorney’s fees under Ark. Code Ann. § 16-22-308, since it prevailed in obtaining fees and costs under its July 5 contractual agreement with Courson. While C & B argues this issue on appeal, it simply failed to raise and obtain a ruling on this matter below. In a recent case where this court decided a similar request for attorney’s fees on appeal, we held that the burden of obtaining a ruling from the court is on the attorney requesting such fees and the objections and matters left unresolved below are waived and may not be relied upon on appeal. McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991). For the foregoing reasons, we affirm the trial court’s rulings on direct appeal.
On cross-appeal, Courson argues that, because C & B was discharged for cause, the trial court erred in awarding any attorney’s fees to C & B. The trial court ruled that Ark. Code Ann. § 16-22-303 (1987) entitled C & B to a reasonable fee for services rendered, plus costs. The trial court was correct.
In Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987), this court stated that a client’s exercise of the right to discharge an attorney with or without cause does not constitute a breach of contract because it is a basic term of the contract, implied by law into it by reason of the nature of the attorney-client relationship, that the client may terminate that contract at any time. Citing with approval the landmark case of Fracasse v. Brent, 494 P.2d 9 (Calif. 1972), this court further related the California rule that there is no injustice in awarding a discharged attorney the reasonable value of the services he or she rendered up to the time of discharge. The Fracasse court noted that this rule preserves the client’s right to discharge his attorney, and yet acknowledges the attorney’s right to fair compensation for work performed.
Although Courson argues that attorney’s fees should only be awarded an attorney who is discharged without cause, the better rule follows that related in Fracasse above, namely, an attorney discharged with or without cause can recover the reasonable value of his or her services to the date of discharge. The North Carolina Court of Appeals sets out a number of opinions taking this view. See Covington v. Rhodes, 38 N.C. App. 68, 247 S.E.2d 305 (1978); see also Sohn v. Brockington, Fla. App., 371 So.2d 1089 (1979); Tobias v. King, Ill. App., 406 N.E.2d 101 (1980); Phelps v. Elgin, Joliet and Eastern Railway Co., 70 Ill. App.2d 89, 217 N.E.2d 519 (1966); Trenti, Saxhaug v. Nartnik, 439 N.W.2d 418 (Minn. App. 1989); In Re Estate of Poli, 134 N.J. 222, 338 A.2d 888 (1975).
Courson next contends that the amount of attorney’s fees awarded C & B is excessive and not reasonable. Courson argues that, if C & B is found entitled to an attorney’s fee award, the court should hold the amount could never exceed the $7,500 Courson initially paid. As mentioned earlier, the court awarded that amount and another $7,500, plus $2,541.29 costs — a total of $17,541.29.
This court has held that, among the pertinent considerations in determining the reasonableness of an attorney’s fee, not specifically fixed by contract, are: (1) the attorney’s judgment, learning, ability, skill, experience, professional standing and advice; (2) the relationship between the parties; (3) the amount or importance of the subject matter of the case; (4) the nature, extent and difficulty of services in research; (5) the preparation of pleadings; (6) the proceedings actually taken and the nature and extent of the litigation; (7) the time and labor devoted to the client’s cause, the difficulties presented in the course of the litigation and the results obtained. Robinson v. Champion, 251 Ark. 817, 475 S.W.2d 677 (1972). In making these determinations, both the trial court’s and this court’s experience and knowledge of the character of such services may be used as a guide. Id. Considerable weight is to be given the opinion of the judge before whom the proceedings are conducted. Id.
Courson argues that C & B misunderstood the law relevant to his case and neglected to develop the case so that it would be ripe for settlement. He asserts the evidence reflects C & B browbeat and coerced him to accept an inadequate settlement offer. After Courson refused the offer, he experienced strained relations with C & B, causing him to hire new counsel. Courson said that C & B then refused to provide file information to Courson’s new counsel.
C & B presented the trial judge with considerable evidence and exhibits reflecting the legal services it rendered Courson. C & B’s documents showed its hourly fee to the time of discharge totaled $22,300. C & B showed it researched Courson’s case, drafted complaints and various other routine pleadings, motions and briefs. C & B made a demand for $300,000 — the limits of Averette’s homeowner’s liability policy. It received in return , an offer to settle for $100,000, which was refused by the client. Then, C & B began to research a structured settlement and that research is amply supported in the record. C & B argues that the arrived at structured settlement would have been worth approximately $343,000 over the long term, and was valued as worth $142,000 in present value. In fact, C & B asserts that, at the time of discharge, it had just informed Courson that C & B had begun work on attempting to bargain for an “annuity for life with cost of living escalators.”
C & B showed that it had arranged and taken the depositions of Courson; Averette; Sam Smith, Sheriff of Chicot County; Donnie Dotson, the Game & Fish officer who arrested Averette; and Dr. Chen, the admitting physician who did surgery on Courson. C & B argues that its efforts educated Averette’s counsel and that the settlement offers made were not mere nuisance offers. Also, C & B asserted that it was in continuous contact with the numerous hospitals and doctors who had treated Courson. The billable hours records also reflect that C & B spent a considerable amount of time talking to and writing Courson’s many creditors.
From the foregoing, we cannot say the attorney’s fees awarded by the trial court were excessive or unreasonable for the services C & B rendered in this matter. Accordingly, we affirm the trial court’s award of attorney’s fees and costs.
Dudley and Newbern, JJ., dissent. | [
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Donald L. Corbin, Justice.
Ted Smith, separate appellant, an attorney, was rendering tax and other personal services for plaintiffs in this case. In the fall of 1976, Mr. Smith approached plaintiffs about investing in a limited partnership he was forming. Mr. Smith advised plaintiffs they would receive tax benefits by entering into the limited partnership. On November 16, 1976, Washington Farm was formed as an Arkansas limited partnership with limited partners, John P. and Margaret G. Elder, Vance N. and Jean E. Elder, N. Dwight and Helen Faye Heathman and G. Hugh and Charlotte Smith, husbands and wives, respectively. On December 23,1976, Benton Farm was formed as an Arkansas limited partnership with limited partners, Jerry and Marjorie Hines, Paul K. and Doris R. Smith and Harold and Geraldine Collins, husbands and wives, respectively, and John H. Adair. James N. and Dorothy Morton subsequently purchased the Collins’ limited partnership interests. The general partner for both limited partnerships was Shiloh Ranches (Shiloh), separate appellant, of which Ted Smith was 1/3 owner and served as secretary-treasurer. Both limited partnerships were involved in dairy farming operations.
Pursuant to the formation of the limited partnerships, appellees signed many documents, including personal bank guaranties, some of which had blanks in the body, which they admit they did not read. Appellees were also provided with a limited partnership agreement and private placement memorandum which they concede they did not read “in any detail” prior to entering into the agreement. Each appellee did however sign a receipt and/or purchaser certification indicating the limited partnership agreement, subscription agreement and private placement memorandum (PPM) (collectively the pre-formation documents) had been received. Each appellee also signed a subscription agreement stating that the PPM had been read and understood and indicating a desire to purchase into the respective limited partnership.
The pre-formation documents detailed the risks involved and informed the potential investors that Mr. Smith was the attorney for Shiloh and for the partnership, that Mr. Smith and Shiloh would be acting in different capacities and conflicts of interest could arise. The documents also stated Shiloh was authorized to employ affiliated persons whom it deemed necessary for proper operation of the venture; Shiloh would receive rental payments for leasing equipment to the partnerships; and the partnerships would be forced to obtain loans to establish their operations for which the investors would be required to sign personal guaranties. Pursuant to the partnership agreement, Shiloh was to maintain adequate accounting records and furnish the limited partners with annual statements together with tax information.
Appellees allege that they relied on Ted Smith’s representation as their personal attorney that the documents they were signing were “just formalities.” They contend they were unaware of the extent of the partnership losses because, even though Ted Smith occasionally requested additional funds for maintenance, Smith failed to report the financial condition of either of the ventures for any period after the year ending December 31,1976, despite repeated requests from appellees.
In March of 1978, the Washington Farm was sold and appellees John Elder, Vance Elder, Dwight Heathman and Harold Smith became partners in the Benton partnership, which was doing business as Viney Grove Dairy. Also in March of 1978, Mr. Smith caused Mcllroy Bank & Trust to extend credit to each partnership in the amount of $175,000. Appellees allege that in March of 1978 the personal guaranties executed by them at the formation of the partnerships were delivered by Mr. Smith to Mcllroy Bank & Trust as additional security for the loans. However, George Edwards, Senior Vice-President of Mcllroy, testified that the loan guaranties were in place in 1976.
Appellees allege they did not learn of the personal guaranties and the fact that they had been given to Mcllroy Bank & Trust until March of 1979. On March 13,1979, Shiloh was removed as general partner, effectively ousting Mr. Smith as well. Appellees continued to operate the dairy farm owned by the Benton Farm partnership as Illinois River Dairy.
In September of 1980, Benton Farm and eight of the appellees, John R. Elder, Vance N. Elder, John Adair, James Morton, Dwight Heathman, G. Hugh Smith, Paul Smith and Jerry F. Hines as individuals, d/b/a Illinois River Dairy filed suit against Ted Smith and Shiloh alleging misapplication of limited partnership funds. Shiloh Ranches filed a counterclaim for money allegedly due the general partner by the limited partnerships. Following defendants’ motion to dismiss, Illinois River Dairy and five of the individual plaintiffs, John R. Elder, Vance N. Elder, James Morton, Dwight Heathman and G. Hugh Smith were dismissed from the suit. Ted Smith was also dismissed as an individual defendant. None of the remaining plaintiffs, John Adair, Paul Smith or Jerry F. Hines appeared for trial in August of 1983. The suit was then dismissed with prejudice as to those three plaintiffs and a judgment entered in favor of Shiloh on its counterclaim in the amount of $82,189.56. That judgment was not appealed and remains unsatisfied.
On October 1, 1982, appellees filed the lawsuit which produced this appeal. An Amended Complaint was filed October 25,1982. In their complaint, appellees alleged Ted Smith caused Washington Farm and Benton Farm to become indebted to Mcllroy Bank & Trust; Ted Smith acting as the attorney for each appellee as an individual advised appellees to sign guaranties containing blank spaces obligating them for any indebtedness incurred by Washington Farm and/or Benton Farm to Mcllroy Bank & Trust; negligently failed to advise appellees of the extent of their liability if they signed blank guaranties, which failure to advise was a breach of Ted Smith’s fiduciary duty to appellees as their attorney. Appellees alleged Ted Smith breached his fiduciary duty to avoid conflicts of interest in advising plaintiffs which he violated by:
(a) Charging the plaintiffs a management fee under the guise of Shiloh Ranches, Inc., for managing Washington Farm and Benton Farm.
(b) Leasing equipment to both Washington Farm and Benton Farm, under the guise of Shiloh Ranches, Inc.
(c) Realizing an undisclosed profit on sale of assets to Washington Farm and Benton Farm, under the guise of Shiloh Ranches, Inc. or other entities affiliated with or controlled by Defendant Ted Smith.
(d) Commingling and misapplication of funds and assets of Washington Farm and Benton Farm, without a full, correct and adequate accounting to the plaintiffs of those transactions.
Appellees also alleged these actions were contrary to the duty Ted Smith owed appellees as their attorney and pursuant to the limited partnership agreements. Lastly, appellees alleged Ted Smith, under the guise of Shiloh, mismanaged the business affairs and assets of plaintiffs and failed and refused to properly account for the unauthorized and negligent acts performed.
Appellees also included Mcllroy Bank & Trust (Mcllroy) as a defendant alleging Mcllroy knew appellees did not understand the extent of their liability as a result of signing incomplete personal guaranties and that they did not intend to incur that liability by signing the incomplete guaranties and should, therefore, be barred from recovering on the guaranties from appellees. Mcllroy made an oral motion to dismiss the complaint as to Mcllroy. This motion was granted by order filed January 16, 1984.
The case was transferred to equity by order filed February 2, 1984, as a result of equitable claims and defenses having been made by the parties. It was docket No. E 84-140.
Appellant Shiloh filed a counterclaim against all the appellees except, John Adair, Paul Smith, and Jerry F. Hines against whom Shiloh received judgment in the 1980 suit. The counterclaim alleged Shiloh had advanced money to the partnerships and the amount of $82,189.56 was still due. -
In a separate action, Mcllroy filed a petition for foreclosure against the partnership real estate naming Washington Farm, Benton Farm, each of the limited partners and their spouses, Shiloh, Ted Smith and Frederick S. Winn, individually and as guarantors of the Washington Farm and Benton Farm loans. Shiloh and Ted Smith filed cross-claims against the limited partners alleging waste of partnership assets following the termination of Shiloh as general partner. The limited partners cross-claimed against Shiloh and Ted Smith alleging the same causes of action in the suit resulting in this appeal. The cross-claims were dismissed with prejudice since the same claims were ready to be decided in the case reaching us on appeal. In its decree of foreclosure, the court ordered that the issue of Ted Smith’s liability for payment of the judgment be consolidated with the case under docket No. E 84-140, which is before us now.
In this case, appellants Shiloh and Ted Smith also filed cross-claims against all appellees alleging misfeasance and nonfeasance in the operation of the partnership causing a wasting of partnership assets. Appellees then filed a cross-claim against appellants realleging the same causes of action contained in their complaint. The trial court found that these cross-claims and the counterclaims of Ted Smith and Shiloh were barred by laches, waiver, estoppel and clean hands.
Appellant originally appealed this decision in case No. 90-176 which we remanded for lack of a final appealable order. The case comes to us again after entry of a final appealable order.
The trial court granted appellees relief finding that Ted Smith breached his fiduciary duty to appellees as their attorney and thereby committed constructive fraud and eight separate acts of malpractice against appellees and that Shiloh breached its fiduciary duty as a partner to appellees. As to Ted Smith, the trial court determined that appellees should have judgment against Ted Smith in the amount due on the notes executed on behalf of Benton Farm and Washington Farm. As to Shiloh, the trial court determined that appellees should have judgment against Shiloh for the amount of equipment rental charges over the amount the trial court found Shiloh was authorized to charge Benton Farm and Washington Farm. The court also determined that Ted Smith was liable to Mcllroy for the balance due on the March 8, 1978, loans pursuant to a Guaranty executed by Mr. Smith in favor of Mcllroy on May 11, 1976, absolutely and unconditionally guaranteeing the prompt payment of any and all indebtedness from Shiloh to Mcllroy. As a separate Conclusion of Law, the trial court determined that the five (5) year statute of limitations for breach of a written contract applied.
On appeal, appellants assert ten (10) points of error. We need only address two of these points.
STATUTE OF LIMITATIONS
The trial judge determined in Conclusion of Law No. 3 that the five (5) year statute of limitations applicable to actions for breach of a written contract applied to the partners’ claims against Ted Smith and Shiloh. The judge based this determination on the finding that as an officer of Shiloh, Ted Smith was obligated to perform the duties imposed on him by the written limited partnership agreement. The court went on to say that in addition to the duties included in the written contract, Mr. Smith owed each of the limited partners, his clients, the fiduciary duty to disclose all transactions he performed and conducted as executive or manager pursuant to the written agreements. Finally, the court found that appellees’ cause of action arose from Mr. Smith’s failure to disclose the Mcllroy loan transaction which resulted in personal liability being imposed on appellees as a result of the personal guaranties they had signed.
Mr. Smith’s duty of disclosure arose from his relationship to the limited partners as their personal attorney and not from any written obligation imposed by the partnership agreements. Mr. Smith did not sign the partnership agreements other than as a representative for Shiloh. Shiloh was a partner, not Mr. Smith individually.
The trial court determined that the cause of action against Ted Smith arose on March 8, 1978, the date of the loans. No finding was made as to the date the action against Shiloh arose. However, the latest possible date the action could have arisen would be March 13, 1979, the date Shiloh was terminated as general partner. Suit was commenced on October 1, 1982, the date of the original Complaint and not October 25,1982, the date of the Amended Complaint as the trial court determined.
Although the trial court determined that the five year statute of limitations applicable to written contracts applied, the trial court did not make any findings of breach of contract. The trial court based its finding of liability against Mr. Smith completely upon the finding that Mr. Smith breached his fiduciary duty to appellees as their attorney and thereby committed malpractice. Three years is the applicable statute of limitation for breach of fiduciary duty and malpractice actions. Goldsby v. Fairley, 309 Ark. 380, 831 S.W.2d 142 (1992). The statute of limitations as to Ted Smith should therefore have been three years and appellees’ action against Ted Smith, individually, is barred. As to Shiloh, three years is also the applicable statute of limitations since the only finding by the trial court as to Shiloh was breach of fiduciary duty. Therefore, appellees’ action against Shiloh is also barred by the statute of limitations.
However, the trial court also determined that Mr. •Smith’s filing of a cross-claim relating to the ousting of Shiloh as general partner, which occurred in 1978, revived appellees’ right to file a responsive answer and cross-claim against Mr. Smith stating the same cause of action. This does not amount to a waiver of the statute of limitations as appellees contend. In Holley v. Holley, 264 Ark. 35, 568 S.W.2d 487 (1978), this court stated that the filing of a counterclaim waives objections to the court’s jurisdiction, but indicated that the statute of limitations would still apply. Also, the claims asserted by Mr. Smith in this case are compulsory counterclaims. Ark. R. Civ. P. 13 (a). Assertion of a compulsory counterclaim does not act as a waiver. Arkansas Game & Fish Comm’n v. Lindsey, 292 Ark. 314, 730 S.W.2d 474 (1987).
TED SMITH GUARANTY
In its Third Amended and Supplemental Judgment, the trial court determined that the written guaranty dated May 11,1976, and executed by Ted Smith in favor of Mcllroy absolutely and unconditionally guaranteeing the payment of any and all indebt edness from Shiloh to Mcllroy was valid. The trial court also determined that the guaranty was in effect on March 8,1978. On this basis, the trial court held Mr. Smith liable for the balance of debts owed to Mcllroy from Shiloh remaining unpaid on the March 8, 1978, promissory note executed by Shiloh as general partner for Benton Farm and the March 8, 1978, note executed by Shiloh as general partner for Washington Farm.
Mr. Smith contends the trial court erred in finding the guaranty valid. Mr. Smith gave notice to Mcllroy on March 16, 1979, that Shiloh had been removed as general partner and that Shiloh and Ted Smith wished to have no further responsibility for Benton Farm or Washington Farm. Mr. Smith contends that after he gave notice of his and Shiloh’s desire to be relieved of responsibility for Benton Farm and Washington Farm, Mcllroy was equitably obligated to obtain his approval before releasing any collateral or other obligers, allowing any extensions, delaying enforcement action or commingling collateral. As a result of Mcllroy’s failure to obtain Mr. Smith’s approval before taking or failing to take these actions, Mr. Smith contends he was relieved from his obligations as guarantor.
It is the law in Arkansas that a material alteration in an obligation, made without the assent of the guarantor, may discharge the guarantor. Germer v. Missouri Portland Cement Co., 301 Ark. 277, 279, 783 S.W.2d 359, 360 (1990). An alteration is not material unless the guarantor is placed in the position of being required to do more than his original undertaking. Continental Ozark, Inc. v. Lair, 29 Ark. App. 25, 29, 779 S.W.2d 187, 189 (1989). Provisions included in a guaranty will be honored. Germer, 301 Ark. Ill, 279, 783 S.W.2d 359, 360.
Mr. Smith contends his agreement was materially altered because Mcllroy made no effort to account for the cattle existing on the farm at the time Mr. Smith gave notice of discontinuance of the guaranty; subsequently extended additional loans to the farm for the purchase of additional cattle that were commingled with the existing cattle, making it impossible to determine which cattle secured which loan; extended the loans on several occasions without Mr. Smith’s approval as guarantor; did not accelerate the loans even though the limited partnership was consistently late with its loan payments; allowed its perfected security interest to lapse; and did not apply the proceeds from the sale of the cattle when they were finally sold to the outstanding balance of the 1978 loans.
The guaranty signed by Ted Smith provided in pertinent part:
[T]he undersigned hereby guarantee(s) absolutely and unconditionally the prompt payment when due, whether at maturity, by declaration, demand or otherwise of any and all indebtedness from [Shiloh] to [Mcllroy] plus such interest as may accrue thereon, whether such indebtedness is incurred as principal, guarantor or indorser, is direct or indirect, absolute or contingent, due or to become due or whether such indebtedness is now existing or arises hereafter and in addition, the undersigned agree(s) to pay all costs of collection, legal expenses and attorney’s fees paid or incurred by [Mcllroy] in collecting and/or in enforcing such indebtedness and in enforcing this guaranty (all such indebtedness, interest, cost, fees and expenses being hereinafter called the “indebtedness”).
No renewal or extension of time of payment of the indebtedness, no relief or surrender of any security for the indebtedness or this guaranty, no release of any person primarily or secondarily liable on the indebtedness (including any maker, indorser or guarantor), no delay in enforcement of payment of the indebtedness of this guaranty and no delay or omission in exercising any right or power with respect to the indebtedness, or this guaranty, shall affect the liability of any of the undersigned hereunder.
Each of the undersigned waives presentment, protest, demand, notice of dishonor or default, notice of acceptance of this guaranty, notice of any loans made, extensions granted, or other action taken in reliance hereon and all demands and notices of any kind in connection with this guaranty or the indebtedness.
This guaranty shall remain in full force and binding upon the undersigned until written notice of the discontin uance hereof shall be received by [Mcllroy], notwithstanding the death of one or more of the undersigned and until any and all indebtedness accepted before receiving notice of revocation shall have been fully paid. [Emphasis added.]
Time extensions are not material alterations if they are expressly provided for in the guaranty as they were here. Germer, 301 Ark. 277, 279, 783 S.W.2d 359, 360. Nor are any other terms expressly provided for in the guaranty material alterations. Id. We have recently held that an absolute and unconditional guaranty which contains a term providing that omission of the holder does not affect the liability of the guarantor waives any defense based on impairment of collateral. First Nat'l Bank of Crossett v. Griffin, 310 Ark. 164, 832 S.W.2d 816 (1992). The guaranty signed by Mr. Smith specifically provides that Mr. Smith shall remain liable for all indebtedness accepted before Mcllroy received notice of discontinuance of the guaranty until it is fully paid. Ted Smith was not released from liability for the loans Mcllroy made on March 8,1978, by reason of Shiloh’s removal as general partner. Only payment of the loans after Mr. Smith gave notice of revocation of the guaranty would discharge his liability.
Nor were any of the actions or inactions alleged by Mr. Smith sufficient to materially alter his obligations under the guaranty and release Mr. Smith from liability thereon. The guaranty is absolute and unconditional and specifically provides neither extensions of time of payment, relief or surrender of security, delay in enforcement of payment, or delay or omission in exercising any right or power with respect to the indebtedness shall affect the liability of Mr. Smith. Griffin, 310 Ark. 164, 832 S.W.2d 816. Therefore, the trial court properly determined Ted Smith was responsible for payment of the outstanding amount of the debt due Mcllroy from Shiloh.
Affirmed in part; reversed in part.
Brown, J., concurs. | [
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John I. Purtle, Justice.
This appeal arises from the denial of post-conviction relief pursuant to Rule 37 wherein the appellant sought to prove ineffective assistance of counsel at trial and on appeal. It is these same two arguments which the appellant urges for reversal. As we find no prejudicial error, the decision of the trial court is affirmed.
In 1985 the appellant was charged and arrested for a burglary that occurred in Jacksonville, Arkansas. Attorney Marva Davis was appointed to represent the appellant on the burglary charge and on an unrelated charge which was to be tried later. The appellant was tried before the court on August 23, 1985, and sentenced as an habitual offender to a term of twenty years in the Arkansas Department of Correction. The appellant contends that, prior to commencement of the trial, he noticed that several alibi witnesses were not present in the courtroom and argues that he brought this to the attention of his attorney. The appellant insists that he had given the attorney the names of these witnesses in adequate time for her to have talked with and subpoenaed them for the trial. The appellate states specifically that he gave his attorney a work phone number for Terry Fulton, and the home phone number for Tammy, Julia, Darren, Alice and Patrick Fulton, and that they would have all been alibi witnesses at his trial had they been notified.
The attorney admitted that she did not contact the witnesses and that they were not at trial. However, she insisted that she had unsuccessfully tried to locate them and that it was the appellant’s decision to go to trial rather than ask for a continuance. The full name, address, or telephone number of any of the six witnesses is not contained in the record. There is no written evidence relating to the alibi witnesses. Therefore, the trial court had to choose between believing the appellant or his trial attorney. The court chose to believe the attorney, which is usually the case in situations like this. After all, the credibility of the witnesses is a matter within the discretion of the trial court. Obviously the trial court had the witnesses before it and no doubt had previously dealt with this attorney. We are in no position to say the trial judge abused his discretion in believing the attorney over the client.
The matter of who was at fault for not filing the appeal is also a credibility question. Again, the court believed the attorney’s version of what occurred after trial on the issue of whether notice of appeal should have been filed. Rule 11 (h) of the Rules of the Arkansas Supreme Court requires that an attorney representing an accused at the trial of his case who wishes to withdraw has a duty to request permission to do so from the trial court. He must also state the reasons for withdrawing and furnish his client a copy of the request. Additionally, if the request is granted, the attorney must furnish the defendant a copy of the order authorizing him to withdraw.
Ineffective assistance of counsel may result when there is a failure on the attorney’s part to take reasonable steps to procure the attendance of a witness if material to the defense. Walker v. Lockhart, 807 F.2d 136 (8th Cir. 1986). When counsel is not given complete information concerning the location of witnesses, the burden of the appellant to prove ineffective assistance of counsel is more difficult. We note that there is no record presented in the present case showing the addresses and telephone numbers of these six witnesses. This, no doubt, is something the trial court considered in weighing the credibility of the witnesses at the Rule 37 hearing. Credibility is peculiarly within the province of the trier of fact. Owens v. State, 296 Ark. 322, 756 S.W.2d 899 (1988). The decision of the trier of fact is binding on appeal in the absence of proof of abuse of discretion by the trial court.
Effective assistance of counsel is a fundamental requirement which cannot be denied any person accused or convicted of a serious crime. Finney v. State, 265 Ark. 941, 582 S.W.2d 19 (1979). Failure of the trial counsel to perfect an appeal amounts to a denial of the defendant’s right to effective assistance of counsel. Blakely v. State, 279 Ark. 141, 649 S.W.2d 187 (1983). Trial counsel, whether retained or appointed, shall continue to represent a convicted defendant throughout the appeal unless permitted by either the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause. Lewis v. State, 279 Ark. 143, 649 S.W.2d 188 (1983). A.R.Cr.P. Rule 36.26. When counsel knows that his client desires an appeal he is obligated to file notice of appeal or to obtain permission to withdraw. Lewis v. State, supra.
A trial court is not always bound to take the word of an attorney over his client. The conflict in the testimony between the appellant and his attorney could have been avoided had the attorney made a written record to protect herself.
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Steele Hays, Justice.
Appellant Bruce McVay appeals from a judgment entered on his conviction of the felonious negligent homicide of William Mann. Déath resulted from a collision between vehicles driven by Mann and McVay. On appeal McVay challenges three evidentiary rulings by the trial court and the denial of his motion to set aside the conviction and enter an order of dismissal based on the doctrine of collateral estoppel. Finding no error, we affirm the judgment appealed from.
McVay was charged with two offenses; felonious negligent homicide in violation of Ark. Code Ann. § 5-10-105 (1987) and driving while intoxicated in violation of Ark. Code Ann. § 5-65-103 (1987). A trial was held and the jury was instructed on both charges. Concerning the offense of felonious negligent homicide, the jury was instructed that the state must prove beyond a reasonable doubt that McVay negligently caused the death of William Mann “as a result of operating a vehicle while intoxicated, or if at the time there was one-tenth of one percent (0.10%), or more, by weight of alcohol in Bruce McVay’s blood as determined by a chemical test of Bruce MeVay’s blood. . . .” That identical element was included in the instruction pertaining to driving while intoxicated.
The jury returned a verdict finding McVay guilty of negli gent homicide, but not guilty of DWI. A fine of $ 1,000 and a three year suspended sentence was imposed. McVay moved to set aside the conviction on the basis of inconsistent verdicts which he alleged were in violation of the double jeopardy clause. The motion was denied and McVay has appealed.
McVay first argues that the trial court erred in failing to grant his motion to set aside the judgment of conviction. He maintains that under § 5-65-103 DWI is an element of negligent homicide as defined in § 5-10-105, and because the jury acquitted him of DWI, the doctrine of collateral estoppel precludes his conviction for negligent homicide. McVay argues that if he were first tried for DWI and acquitted, and then tried for negligent homicide, the state would be barred from bringing that charge under the doctrine of collateral estoppel. McVay argues the same principle should apply when he is subject to both charges in one trial.
McVay is correct to this extent: if the state proceeded against him first on DWI and he were acquitted, the state would be collaterally estopped from proceeding against him in a second trial for negligent homicide. See United States v. Greene, 497 F.2d 1068 (7th Cir. 1974); Ashe v. Swenson, 397 U.S. 436 (1970). We disagree, however, with the corollary — that the same result applies when the two offenses are tried simultaneously.
This question was presented in Dunn v. United States, 284 U.S. 390 (1932), the last opinion of Justice Holmes. Dunn held that the principle of collateral estoppel would not apply when, in the same trial, a defendant was acquitted on one count but found guilty on another. The rationale in that case has been questioned in part, but there were two theories for the Court’s holding and subsequent decisions have upheld it on the alternative basis. For example, in United States v. Greene, supra, the court gave the following explanation for agreeing with Dunn:
The [faulty] argument in Dunn was in no way essential to [Holmes’s] conclusion. Rather, the holding of Dunn can be supported independently from Holmes’s dicta. The true rationale for the rule permitting inconsistent verdicts in a single trial is that a jury may convict on some counts but not on others not because they are unconvinced, of guilt, but because of compassion or compromise. Indeed if the rule were otherwise, the government would be entitled to have the jury warned that an acquittal on some counts might undermine a guilty verdict on others -— almost the opposite of the standard instruction, which is obviously beneficial to criminal defendants. (Citations omitted.) [Emphasis added.]
In United States v. Powell, 469 U.S. 57 (1984), the issue was again addressed. Powell recognized the dubious rationale in Dunn, but reaffirmed its holding on the reasoning expressed in United States v. Greene, supra. Betty Lou Powell had been convicted of soliciting a conspiracy by telephone to possess and to distribute cocaine. She was acquitted of the lesser included offense of conspiracy to possess and to distribute cocaine. She claimed the verdicts were inconsistent and she should be granted a retrial as to the telephone solicitation counts because she had been acquitted of one of the elements of that offense. The Supreme Court disagreed and held that inconsistent verdicts in the same trial where there is conviction on the compound offense but acquittal on the predicate (lesser included) offense is permissible, and that collateral estoppel does not apply. The Powell decision has been followed in a number of subsequent decisions, see e.g., United States v. Romano, 879 F.2d 1056 (2d Cir. 1989), where the court stated:
The law is clear that a defendant may not attack his conviction on one count because it is inconsistent with an acquittal on another count. Res judicata concepts are not applicable to inconsistent verdicts; the jury is free to exercise its historic power of lenity if it believes that a conviction on one count would provide sufficient punishment. (Citations omitted.)
This case falls directly within the rule of law announced in Dunn and reaffirmed in Powell. While McVay was acquitted of the predicate offense, he was convicted of the compound offense in the same trial. Collateral estoppel does not apply and McVay’s conviction will not be vacated. Several decisions of this court and of the Court of Appeals are in accord with the rationale of the Powell case: Johnson v. State, 274 Ark. 293, 623 S.W.2d 831 (1981); Riddick v. State, 271 Ark. 203, 607 S.W.2d 671 (1980); Wade v. State, 290 Ark. 16, 716 S.W.2d 194 (1986); Cole v. State, 33 Ark. App. 98, 802 S.W.2d 472 (1991).
As his second point, McVay argues the trial court erred in allowing testimony concerning admissions he made in the emergency room following the accident. One of the admitting nurses smelled alcohol, and in determining what medication could be prescribed, asked McVay if he had had anything to drink. He told her he had, and when asked how much, he stated he had drunk about a half a case of beer in the last hour-and-a-half.
By a motion in limine, McVay asked that the nurse’s testimony not be admitted. His argument below and again on appeal is that the statement was untrustworthy and uncorroborated and that Ark. Code Ann. § 16-89-111(d) (1987) requires that a confession be corroborated by other evidence in order to sustain a conviction. The argument, however, confuses admissibility with sufficiency of the evidence. Section 16-89-111 (d) and the cases interpreting it deal only with the sufficiency of the evidence to sustain a conviction, and not mere admissibility. The standard for reviewing that ruling is abuse of discretion. Ark. R. Evid. 103. McVay has not shown that discretion to have been abused.
MeVay also maintains his statements to the nurse were a privileged communication between physician and patient under Ark. R. Evid. 503. We cannot sustain the argument. Ark. R. Evid. 503(3) provides for a waiver of the privilege if the patient relies upon a physical, mental or emotional condition as an element of his claim or defense. At the motion in limine, McVay’s attorney stated the defense would be that McVay smelled of alcohol because beer cans in the car had ruptured and spilled over him at the time of the collision. Under these circumstances he has waived the privilege. See also Edwards v. State, 244 Ark. 1145, 429 S.W.2d 92 (1968).
Appellant next argues that the trial court erred in admitting the medical blood alcohol test into evidence. We find no merit in the contention. When McVay was taken to the emergency room after the accident, the hospital drew a blood sample and tested it, and the trial court allowed evidence of the blood test over McVay’s objection. McVay makes two arguments: 1) the blood test was admitted in violation of the Hospital Records Act, specifically Ark. Code Ann. § 16-46-304 (1987); and 2) the blood test administered was not in compliance with Ark. Code Ann. § 5-65-204 (1987).
The provision of the Hospital Records Act that McVay argues should prevent admission of his blood test is § 16-46-304, which provides that before hospital records may be used in a judicial proceeding,
1) The records have been subpoenaed at the instance of the patient involved or his counsel of record, or
2) The patient involved or someone authorized in his behalf to do so for him has consented thereto and waived any privilege of confidentiality involved.
McVay argued below that he would not consent to nor waive his confidential privilege under this statute and therefore the hospital records of his blood test could not be admitted. The trial court refused to admit appellant’s hospital records, but did allow the blood test results admitted.
The state argues the results of blood tests are not considered to be confidential information and therefore it was proper to admit them. We agree.
The Hospital Records Act was enacted in 1981, five years after our current rules of evidence were adopted in 1976. We noted in Oxford v. Hamilton, 297 Ark. 512, 720 S.W.2d 905 (1989), there was a significant change in Ark. R. Evid. 503, supra, in that previously, “any information” between doctor and patient was privileged, but in the 1976 rules the privilege has been limited to “confidential” communication. We further found in that case that a blood test result was not to be considered a confidential .communication.
Under general rules of construction we assume the legislature was aware of existing law when adopting subsequent enactments, and therefore, it intentionally designed § 16-46-304 to be in accord with our other “physician privilege” statute, Ark. R. Evid. 503, by limiting the privilege to confidential communications. Further, for the reasons adopted in Oxford, we find that under § 16-46-304 a blood test will similarly be found not to be confidential information.
McVay also argues the blood test administered did not comply with the requirements set out in § 5-64-204, a provision of our DWI Omnibus Act, and therefore the test was not admissible. While we have required compliance with the Omnibus Act, we have also held that those requirements are not necessary when the blood test is not ordered by the police or the defendant for use as evidence at trial, but has been ordered by hospital personnel for their own use in connection with the treatment of the patient. Weaver v. State, 290 Ark. 556, 720 S.W.2d 905 (1986). Here McVay does not contend that either he or the police ordered the blood test for use at a criminal trial and the record reveals that the blood test was in fact ordered by hospital personnel for their own use.
At his last point, McVay argues that the trial court erred in admitting the testimony of Dr. Stockstill, a pathologist at the admitting hospital. McVay objected to his testimony on the basis of a particular calculation Stockstill used to determine what McVay’s blood alcohol level was at the time of the accident. McVay argues that this calculation is prejudicial, improper and unfair under Ark. R. Evid. 403 and permits the jury to speculate. McVay did not object to the calculation as being faulty nor to Stockstill’s qualifications to testify. The admission of such information is within the discretion of the trial court under Ark. R. Evid. 103, 403 and 703, and McVay has not demonstrated any abuse of that discretion.
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Robert L. Brown, Justice.
The appellants, who brought
this suit as guardians on behalf of two minors, Tamikia Cheatem and Mary Gibson, raise essentially two issues in this appeal from a verdict in favor of the appellee, Linda Marie Jackson. The first issue has to do with whether an accident reconstructionist can testify in a matter where there were eyewitnesses to the wreck involving the minor girls and Jackson. The second concerns whether the circuit court erred in refusing the introduction of certain hospital records relating to the minors’ injuries. We conclude that there was no abuse of discretion by the circuit court in either instance, and we affirm.
On May 28,1987, Tamikia Cheatem and Doris Collins, who were thirteen at the time, were riding double on the seat of a bicycle near West Side Elementary School in West Helena. A collision occurred involving their bicycle and a vehicle driven by Jackson. Tamikia Cheatem and an eyewitness, Caletter Greer, who was age sixteen at the time, testified that the appellants were hit from behind by Jackson. Jackson testified that the girls ran a stop sign and hit the side of her car. The minor girls were thrown from the bike and injured. Subsequently, the appellants, Essie Banks and Doris Collins, were appointed guardians for both girls, and they filed a complaint in that capacity, alleging that Jackson was negligent in causing the accident. Various injuries, as well as physiological and psychological impairments, were asserted. The appellants sought $475,000 in damages for Tamikia and $300,000 for Mary.
At trial four years later, conflicting eyewitness testimony was given by Tamikia Cheatem and Caletter Greer on the one hand and Jackson on the other. (Mary Gibson could not recall the facts of the accident.) Four days before trial, the appellants filed a motion in limine to prevent the testimony of Dr. Larry Williams, an accident reconstruction expert hired by Jackson. The motion was denied at trial, and Dr. Williams testified. The appellants also attempted to introduce the complete hospital record regarding treatment of the girls’ injuries, which had not been made available to either side until the first day of the trial. The circuit court sustained Jackson’s objection to the hospital records on the basis that they were provided too late. The jury found for Jáckson, and judgment was entered dismissing the complaint with prejudice.
The primary issue raised by the appellants concerns the propriety of the testimony of the accident reconstructionist. Initially, the appellants contend that they were advised too late that the defense planned to call Dr. Williams as an expert witness. More specifically, they argue that Jackson failed to respond to a 1989 interrogatory regarding the identity of the accident reconstructionist and the substance of his expected testimony until four days before trial which began on November 19, 1991.
The record reflects that the supplemental answers supplied by Jackson identifying Dr. Williams were dated November 4,1991, and mailed to counsel for appellants, according to the certificate of service, that same day. They were filed on November 6,1991, nearly two weeks before the trial began. While we cannot pinpoint from the record with any certainty the exact date when the appellants received the supplemental answers, in the due course of business it should have been well before November 19, 1991. We cannot agree that the circuit court abused its discretion in admitting this testimony.
In this regard it undoubtedly would have been preferable for Jackson to have disseminated the information earlier than she did. Still, Dr. Williams was made available to the appellants for deposition, either in person or by telephone, before trial. The appellants did not avail themselves of the opportunity to depose Williams and present no compelling reason for why they did not do so. Last-minute depositions are not unique in trial preparation, although admittedly this practice can be abused. In this case, however, we detect no evidence of abuse.
The supplemental answers included the following information about Dr. Williams’s expected testimony:
Dr. Williams has been asked to review all depositions, pleadings and evidence in the case and to give an opinion as to how the incident occurred and the relative speeds of the vehicles. Dr. Williams is of the opinion that the damage to the 1983 Cougar operated by Linda Jackson was struck on the right-hand side by the bicycle operated by the plaintiffs at an approximately 90 degree angle.
This information easily satisfies the requirements of Ark. R. Civ. P. 26(e)(1), which specifies that supplementation of responses include, “in the case of expert witnesses, the subject matter on which he is expected to testify, and the substance of his testimony.”
The heart of the appellants’ argument on the testimony of the accident reconstructionist is their assertion that the circuit court erred in allowing the testimony of such an expert under the facts of this case. The appellants are correct in noting that, as a general rule, attempts to reconstruct accidents by means of expert testimony are viewed with disfavor by this court. Drope v. Owens, 298 Ark. 69, 765 S.W.2d 8 (1989); B. & J. Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984). Nevertheless, the general rule has been liberalized since the first enactment of the Uniform (now Arkansas) Rules of Evidence in 1976. Drope v. Owens, supra; McElroy v. Benefield, 299 Ark. 112, 771 S.W.2d 274 (1989); Price v. Watkins, 283 Ark. 502, 678 S.W.2d 762 (1984). Specifically, this court has consistently recognized exceptions to the general rule where it appears that a particular situation is beyond the jurors’ ability to understand the facts and draw their own conclusions. See Drope v. Owens, supra, Price v. Watkins, supra. Under Ark. R. Evid. 702, the test for admissibility was liberalized to include situations where specialized knowledge “will assist the trier of fact to understand the evidence or to determine a fact in issue.” See also McElroy v. Benefield, supra; B. & J. Byers Trucking, Inc. v. Robinson, supra. Whether a particular case should be governed by the general rule or should be treated as an exception is a matter within the trial judge’s discretion. Drope v. Owens, supra; McElroy v. Benefield, supra.
Although the appellants cite Drope v. Owens, supra; B. & J. Byers Trucking, Inc. v. Robinson, supra; Price v. Watkins, supra; and several other cases handed down after the original enactment of the Rules of Evidence in 1976, they rely principally upon earlier authorities such as Waters v. Coleman, 235 Ark. 559, 361 S.W.2d 268 (1962); Henshaw v. Henderson, 235 Ark. 130, 359 S.W.2d 436 (1962); and Conway v. Hudspeth, 229 Ark. 735, 318 S.W.2d 137 (1958). Our focus in all three of the earlier cases was to assess whether the opinion testimony of state police officers was inappropriate on the basis that there was no evidence to indicate that it was beyond the jury’s ability to understand the facts and draw its own conclusion. In all three cases we concluded that the state police testimony was not warranted. In Waters v. Coleman, supra, for example, we said that where there were seven eyewitnesses engaged in a “swearing match” over uncomplicated facts, the jury was able to draw its own conclusions without the importation of expert opinion which amounted to a comment on the weight of the evidence.
However, with the enactment of Rule 702 the emphasis of our inquiry became not whether the jury could ultimately understand the evidence but whether the expert could assist the jury in that endeavor. This provided a broader, more expansive window for the admissibility of reconstructionist testimony. Moreover, we have held since Waters v. Coleman that the existence or non-existence of eyewitnesses in a given pase is not controlling on whether a reconstructionist might testify but only a factor to be considered by the trial court. Drope v. Owens, supra.
Since the enactment of Rule 702, we have agreed with the trial court in one case that the testimony of an expert was not necessary because the speed of a motorcycle was not beyond the comprehension of the jurors. Drope v. Owens, supra. On the other hand, in McElroy v. Benefield, supra, we upheld the trial court’s decision to admit an expert’s testimony where the reconstructionist evaluated skid marks, observed the displacement of and damage done to vehicles, and measured distances in order to arrive at speed estimates. We said there: “We have no difficulty in deciding that [the expert’s] testimony served to aid the jury in its understanding of the evidence in this cause.” 299 Ark. at 115, 771 S.W.2d at 276.
In the case before us now, the three eyewitnesses who testified offered statements that, in the words of the McElroy opinion, were “at extreme odds.” 299 Ark. at 114, 771 S.W.2d at 275. Tamikia Cheatem stated that the bicycle was ahead of the appellee’s car when the collision occurred. Caletter Green testified that she “heard a car coming fast” and maintained that the automobile struck the bicycle, which was traveling in the same direction. Linda Jackson stated that the girls were traveling toward her and that “they just came into my car.” The other injured girl, Mary Gibson, did not recall the circumstances of the accident. There were also significant areas of dispute concerning the nature of the damage sustained by both the car and the bicycle and the relative speed of the two and the impact of the bodies of the two girls on the car. Dr. Williams offered detailed testimony on these matters, with attention to the absence of damage to the front of Jackson’s car and the location of the initial contact point “just in front of the right front wheel.” He discussed the forward momentum of the bicycle and its riders upon impact and maintained that the damage to the bicycle and car was inconsistent with the claim that the car had run into the bicycle from behind.
Unlike the rather straightforward situation in Drope v. Owens, supra, where only the speed of a motorcycle was at issue, here a number of factors came into play, as well as directly contradictory testimony from the persons involved in the collision and one eyewitness. Dr. Williams, without question, assisted the jury in analyzing the physical evidence. In this instance, the reconstructionist satisfied the criteria of Ark. R. Evid. 702 by aiding the jury in understanding the evidence. Hence, the circuit court did not abuse its discretion in allowing the expert to testify.
The appellants also contend that Dr. Williams testified outside the scope of his expertise and that this was prejudicial error. They premise this argument on the fact that he had not visited the accident site, had not seen the actual vehicle involved in the accident — only photographs — and had first seen the bicycle just before the trial. In overruling the appellants’ objection, the circuit court noted that such observations were better suited for cross-examination than admissibility, and the appellants’ attorney was afforded the opportunity to attack the expert’s credibility. There was no error in this ruling.
For their second point, the appellants urge that the circuit court should have allowed them to introduce into evidence the complete medical records on the two girls from LeBonheur Children’s Medical Center which were received by the attorneys for the parties the first day of the trial. Jackson objected on the basis that the appellants had failed to comply with her interrogatory demand to “identify each and every document and other writing that you intend to introduce into evidence ...” and had further failed to supplement the response as required by Ark. R. Civ. P. 26(e). The circuit court sustained this objection, but assessed no blame against the appellants for this delay.
The case of Dunlap v. Buchanan, 293 Ark. 179, 735 S.W.2d 705 (1987), cited by the appellants, states that the language of Ark. R. Civ. P. 26(e)(2)(B) gives the trial court considerable latitude to excuse failure to supplement when the response to an answer changes, and it requires at least a passive concealment before any imposition of a sanction by the court. In the case before us, however, there was no finding of concealment by the appellants, passive or otherwise.
The trial court does have broad discretion in matters pertaining to discovery, and that discretion will not be second-guessed by this court absent an abuse of discretion that is prejudicial to the appealing party. Morris v. Cullipher, 306 Ark. 646, 816 S.W.2d 878 (1991). Because there was no concealment by the appellants in this matter, the sanction imposed on the appellants in disallowing the exhibit may well have been error. Nevertheless, the jury returned a verdict in favor of Jackson. Because there was no liability assessed against Jackson, the issue of the medical treatment provided to the girls became irrelevant. Accordingly, we have difficulty discerning how the appellants were prejudiced by the court’s refusal to admit the complete hospital file into evidence. The appellants show us no basis for prejudice, and we note that they presented significant physician testimony to the jury as well as abbreviated hospital records. Without prejudice to the appellants, there is no basis for reversal.
Affirmed.
In 1986, the Uniform Rules of Evidence enacted by the Arkansas General Assembly in 1976 were invalidated as improperly enacted. Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986). That same date this court adopted the Rules in toto as the Arkansas Rules of Evidence. | [
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Lyle Brown, Justice.
This suit primarily concerns a boundary dispute. Appellees, Claude W. Cruthis and John H. Cruthis, are the owners of Section 34, Township 5 North, Range 1 West, in Woodruff County. Appellee John E. Cruthis was the tenant on the lands for 1970. Appellant T. E. Smith owns Section 3, Township 4 North, Range 1 West, in St. Francis County. Appellant’s land lies immediately south of the Cruthis land; in other words the parties have a common boundary line which is also the line between the two counties. Claude and John Cruthis alleged that appellant came upon their side of the property line in 1970 and erected a levee which obstructed the natural drainage from the Cruthises lands. The Cruthises asked for a permanent injunction to prohibit the maintenance of the levee which was obstructing the natural flow of the surface water from their lands. Their tenant, John E. Cruthis, sought 1970 crop damages caused by the waters; the amount of damages was alleged to be $700. Appellant, Smith, denied the allegations of the complaint except as to ownership of the two sections. Affirmatively, appellant alleged that appellees, several years ago, dug a ditch from the northwest to the southeast across their lands in order to drain their lands and speed the flow of surface water and created a temporary lake for duck hunting; that the parties entered into an agree ment whereby appellees agreed to divert the water that was impounded by appellees’ levee into a ditch which appellees dug on appellant’s land with his permission; that the ditch emptied into a natural drain; and that appellees’ damages resulted from their failure to keep the ditch unobstructed. Appellant also alleged that ap-pellees promised to remove two pipes they had placed in the drain when they constructed the levee and that they would close the gaps in the levee when the pipes were removed.
Appellant Smith cross-complained against the ap-pellees, the landowners. He asserted that appellees had twice trespassed on his lands in 1971 and cut his dikes and levee which he contended were on the boundary line; and that those acts cast impounded drainage water upon appellant’s land and destroyed his rice crop consisting of thirty acres. For those alleged activities appellant prayed for actual and punitive damages.
The trial court first fixed the boundary line. If that line is correct then appellant Smith constructed what is designated as a new rice ditch (flume) east and west and substantially upon the acreage of the Cruthises. That ditch is not true east and west and protrudes at variable distances into Section 34 in Woodruff County. The protrusions vary from a very small distance up to, roughly, some 500 feet. The court directed that appellant remove the flume and levee which it found to be north of the established line; however, the court held that the parties were dealing with surface water and that landowners, appellant in particular, had the right to fend off surface waters by maintaining a flume and levee upon his own lands. The court denied damages to either party on the finding that the estimates of damages were too speculative.
Appellant designates four points for reversal:
I and II
The court was in error in its determination of the boundary line. The court was in error in ruling that the extension eastwardly of an east-west roadway represented the recognized boundary between the properties.
The court erred in exercising jurisdiction over appellant’s counterclaim.
IV
If the court did not err in exercising jurisdiction over appellant’s counterclaim then it was error to deny damages sought by that claim.
The cross-appeal of the Cruthises asserts two points:
I
The court erred in refusing to permanently restrain appellant from erecting levees and obstructions on appellant’s land which would interfere with the natural drainagé of waters flowing from appellees’ land through the slough or slash across appellant’s lands into Flat Fork Creek.
II
The court erred in refusing to give judgment against appellant Smith for damages to crops on appellees’ land for the crop year 1970.
We first approach the main issue of boundary dispute. We cannot say that the finding of the chancellor was against the preponderance of the evidence. Three surveyors testified: Sam Word, Billy M. Cline and Jack Mitchell. The court found that Word’s survey, as shown in appellees’ exhibit eight, represented the true line, and we approve that finding. Cline’s survey was very much in agreement with the Word survey. The court found that the Mitchell survey, made on behalf of appellant, was in error. The court commented that the Mitchell survey of 1970 coincided with the determinations made by Word and Cline. However, Mitchell did additional surveying in 1971 and at that time he placed the boundary line quite a number of feet north of his 1970 survey. The court commented in its decree that the Cline and Word surveys represented an extension of an east-west road between the litigants; therefore, says appellant, the court was inconsistent. We do not agree. The court unequivocally held the Word survey, as shown by exhibit eight, “to be the correct boundary line between the Cruthises and Smith”. Incidentally, that exhibit does show the Word line to be an extension of a farm road, which road the court said the parties had long recognized as the true line. What we have said disposes of appellant’s points I and II.
Appellant’s Point III is that the court erred in exercising jurisdiction over appellant’s counterclaim. That point is based on the theory that the suit was filed in Wood-ruff County and that the crop damages arose in St. Francis County. Our counterclaim statute is mandatory. Ark. Stat. Ann. § 27-1121 (Repl. 1962). That statute says that in addition to a denial of the complaint the defendant “must set out in his answer as many grounds of defense, counterclaim or set-off, whether legal or equitable, as he shall have”. In Troxler v. Spencer, 223 Ark. 919, 270 S.W. 2d 936 (1954), Justice Millwee had this to say about the reason behind the act:
In recent years there has developed a wave of procedural reform which tends to brush aside traditional limitations on pleadings of counterclaims and set-offs in order that circuity and multiplicity of actions might be avoided and litigants enabled to settle all matters between them in a single action. Arkansas has been in the forefront of this movement. Prior to 1917 our Civil Code (Kirby’s Digest, § 6099) defined a counterclaim as follows: “The counterclaim mentioned in this chapter must be a cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, arising out of the contract or transactions set forth in the complaint, as the foundation of the plaintiff’s claim or connected with the subject of the action.” This section was amended by § 1 of Act 267 of 1917 which now appears as Ark. Stats., § 27-1123, and reads: “The counter claim mentioned in this chapter may be any cause of action in favor of the defendants, or some of them against the plaintiffs or some of them.” It is also now provided in the fourth subdivision of Ark. Stats., § 27-1121, that a defendant must set out in his answer as many grounds of defense, counterclaim, or set-off as he shall have, and we have held the provision, mandatory. Shrieves v. Yarbrough, 220 Ark. 256, 247 S.W. 2d 193. We have repeatedly stated that the manifest purpose of the legislature in enacting the foregoing statutes was to permit litigants to settle all matters in dispute between them in a single unit.
We reiterate that the purpose of the compulsory counterclaim statute is to require all claims arising out of the same series of events to be settled in one suit rather than spawning a number of related claims. The wisdom of the rule should not be defeated by the breaking off of jurisdiction at a county line that lies between the litigating neighbors. See Reasor-Hill Corp. v. Harrison, Judge, 220 Ark. 521, 249 S.W. 2d 994 (1952).
Appellant’s final point is that if the court had jurisdiction over his counterclaim for damages then the court erred in denying any damages, We have reviewed the evidence and we are unable to say that the finding of the chancellor is against the preponderance of the evidence.
By cross-appeal, appellees say the court erred in refusing to permanently enjoin appellant Smith from erecting levees and obstructions on Smith’s own land which would interfere with the natural drainage of waters flowing from appellees’ lands. The court specifically held that the parties were dealing with surface water and we cannot say it was error to so hold. The court held that the landowners had a right to build flumes and levees on their own lands to fend off surface waters. We recently said that a landowner “has the right to fend off surface waters, so long as he does not unnecessarily damage his neighbor”. Solomon v. Congleton, 245 Ark. 487, 432 S.W. 2d 865 (1968). To the same effect see Turner v. Smith, 217 Ark. 441, 231 S.W. 2d 110 (1950); Brasko v. Prislovsky, 207 Ark. 1034, 183 S.W. 2d 925 (1944).
Finally, appellees assert that the court erred in not awarding $700 for crop damages. They point up the testimony of John E. Cruthis in that respect and say that the testimony was uncontradicted. In the first place, John’s testimony was very sketchy and conclusionary. Furthermore, John was a party to the suit and it cannot be said that he was a disinterested witness. We find no merit in the point.
Affirmed on appeal and cross-appeal. | [
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Humphreys, J.
The purpose of this appeal is to ascertain whether the chancery court of St. Francis County correctly construed act number 296 of the Acts of the General Assembly of 1929, as an act Ifor the confirmation of the State’s tax titles. The decree appealed from followed the trial court’s interpretation of the act by providing that the respective forfeitures or sales to the State of the several tracts of land described in the complaint for the taxes for the respective years shown opposite each tract shall be confirmed against, any “informality or any irregularity’ ’ connected with such sale or forfeiture to the State.
Appellant contends Ifor a reversal of the decree because the court refused to vest an absolute title in it to the forfeited lands described in the complaint. It is argued that said act No. 296, upon which the action is based, expressly authorizes the investiture of an absolute title in the State to all lands forfeited and sold to. it for the nonpayment of taxes. The language of the act does not sustain the argument. According to the language used the act only purports to deal with tax titles acquired by the State through sales for the nonpayment of taxes which contain “informalities or irregularities” for which the sales might be avoided or set aside. The notice to interested parties provided in § 3 of the act is by publication describing the lands and calling on all persons who can set up any right to the lands so forfeited in consequence of any “informality or any irregularity” connected with such sale to show cause at the first term of court thereafter why the “sale” made to the State should not be confirmed. Certainly the intent was not to make the decree broader than the constructive notice to interested parties of the institution of the suit. The breadth and scope of the decree in favor of the State isi limited in § 9 of the act in specific language to a confirmation of the “sale” to the State. It is also provided1 in § 9 of the act that the decree of confirmation in favor of the State shall be a bar against any and all persons who may thereafter claim said lands in consequence of “any informality or illegality” in the forfeiture proceedings for the nonpayment of taxes. It is manifest from the character of the decree provided by the act that the Legislature did not intend for the confirmation to be a bar against claimants of the land upon other grounds.
Again, the purpose and intent of said act number 296 is reflected by the fact that it follows very closely the provisions of §§ 8379-8393 of Crawford & Moses’ Digest for the confirmation of tax titles in proceedings by individuals. By comparison of said act 296 with those sections of the Digest it will be seen that there is no material difference between them. The sections of the Digest referred to have been construed by this court as a method of procedure for perfecting such title as the purchaser at tax sales would have received if the sale had been regular, and that a decree under the provisions of said sections would not have the effect of confirming the title in the purchaser. Updegraff v. Marked Tree Lumber Co., 83 Ark. 154, 103 S. W. 696. In view of the similarity between said act number 296 and the sections of the statute relating to the confirmation of individual tax titles, this court’s construction of the intent of those sections of the statute referred to is the appropriate and fitting construction as to the intent and purpose of the Legislature in the passage of said act number 296.
Our conclusion is that said act number 296 is an act providing a method by which the State may validate its tax.titles by curing the “informalities and irregularities” contained in the forfeiture proceedings. This in terpretation or construction of the statute necessarily eliminates all other issues in the case.
No error appearing, the decree is affirmed. .
Kirby and Mehaffy, J J., dissent. | [
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Hart, C. J.,
(after stating the facts). The decree of the chancery court was erroneous. This ease is ruled by the decision in Phillips v. City of Siloam Springs, ante p. 137. In that case the court held that under Crawford & Moses’ Digest, § 5125, et seq., the power is conferred on the State Board of Health to require inspection of bakeries and to regulate the sale of their products, and that it was not within the power of a city to enact an ordinance exacting an inspection fee for products of a bakery located in another city which had complied with all the rules and regulations'of the State Board of Health and city board of health of the city in which the bakery was located, and manufactured and shipped its products under the supervision of such State and city boards of health. The court said in effect that the statute giving the power of regulation in the sale of foods and drinks was paramount, and that it is elementary law that a municipal ordinance, in so far as it conflicts with the statute, is invalid. The reason is that the statute of the State operates within the limits of the municipal corporation the same as it does elsewhere, and that local laws- and regulations are at all times subject to the paramount authority of the Legislature. Hence, ordinances of cities and towns inconsistent with statutes on the same subject must be held of no effect unless they are authorized by an express legislative grant. As applying this principle according to the facts of the particular case, we cite the following: Carpenter v. Little Rock, 101 Ark. 238, 142 S. W. 162 ; State v. Haynes, 175 Ark. 645, 300 S. W. 380 ; Duncan v. Jonesboro, 175 Ark. 650, 1 S. W. (2d) 58 ; and Bragg v. Adams, 180 Ark. 582, 21 S. W. (2d) 950. Therefore, the decree will be reversed, and the cause will be remanded, with directions to the chancery court to grant the prayer of the complaint of the plaintiffs. | [
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•McHaney, J.
In the case of Mazda Oil Corporation v. Sloan, post p. 945, we sustained the right of the Forest Park Corporation to borrow money from the appellee, Thompson Oil & Gas Company, and affirmed a judgment in its favor against the Forest Park Corporation for approximately $100,000. This judgment was rendered in the chancery court of Benton County on November 8,1929. Shortly after the rendition of this judgment, the officers of the Forest Park Corporation called a meeting of the common stockholders for December 27, 1929, notice of which was given to all holders of common stock,. they being the only stockholders entitled to vote at such meeting, for the purpose of determining what further steps should be taken to pilot its course through the stormy seas of financial difficulties which had overtaken it. This meeting was held according to notice, and a resolution was then and there adopted to dissolve the corporation, liquidate its assets, and surrender its charter to the -Staté. Appropriate certified copies of this resolution were promptly filed with the county clerk and Secretary of State by the proper officers of the company, who were authorized and directed so to do by said resolution. On the next day after said meeting, December 28, Thompson 0:1 & Gas Company filed its complaint in the chancery court, alleging the insolvency and the dissolution of the corporation as above stated, the indebtedness to it, and other allegations showing the necessity for the appointment of a receiver, and prayed that a receiver be appointed to take charge of the assets. This was done on the same day, without objection, and the cause continued to January 10, to permit objection to the granting of a petition for an order to sell the assets. Appellants, Mrs. A. M. Livingston and four others, intervened in this action and made objections to the appointment of a receiver and to the petition to sell the properties on a number of grounds, some of which have now passed out of the case by reason of the decision in Mazda Oil Corporation v. Sloan, supra. The court overruled all objections, declined to permit further proof thereon, and on March 4, entered an order confirming the appointment of C. R. Jones as receiver, directed him to make and file on or before March 12, 1930, a correct inventory of all assets, and continued the matter to March 14 to set a date of sale. On the latter date the court ordered the property sold on April 10 on terms fixed by the court, which sale was held and report made that all the assets were sold to the judgment creditor for $80,000, it being the only person who had filed a claim. This report was approved, confirmed .and deed ordered made to purchaser of all real estate and proper assignment and delivery of all personal property to it. The interveners have appealed.
■Complaint is made that the directors of the Forest Park Corporation failed to protect the interests of the stockholders, and that they resisted every action of the interveners. What they could have done to save the company is not pointed out, and we are unable to see wherein they violated their trust. It was hopelessly insolvent. This is nowhere denied by appellants. It owed Thompson Oil & Gas Company on judgment more than $100,000, had no money with which to keep its property insured, to pay taxes, or to hire a caretaker, much less to pay said judgment and operate its properties as a summer resort known as Forest Park. It had operated during the past season at a heavy loss.
The principal contention for a reversal seems to he that the court acted arbitrarily in refusing to permit appellants to fully develop their case. They say they wanted to prove that no notice was given to holders of preferred stock of the meeting at which the dissolution resolution was voted; that a large amount of stock voting in favor of said resolution had been issued without consideration and was void; that certain common stock had been issued to Mr. Breckenridge and Williams & Williams illegally; and that, on account of the pending appeal in Mazda Oil Corporation v. Sloan, it could not be definitely known whether the judgment in favor of Thompson Oil & Gas Company would be sustained, and, if reversed, Forest Park Corporation would be solvent and owe no debts. It occurs to us, as it undoubtedly did to the trial court, that none of the evidence desired to be offered, was of any importance to a proper determination of the case, and therefore immaterial and irrelevant. Whether the holders of preferred stock were entitled to notice or not, we do not decide, for the court had the power and the duty to appoint a receiver on petition of Thompson Oil & Gras Company irrespective of the stockholders’ meeting, or any action taken thereat, in view of the facts alleged in the petition therefor. Therefore it becomes immaterial as to whether common stock voted for the resolution which had been improperly issued. In Mazda Oil Corporation v. Sloan, it was definitely decided that there was a valid judgment against Forest Park Corporation. So we are unable to see wherein any of the evidence appellants wanted to offer could have changed the result. The property has been sold for $80,000. The sale was widely advertised in the leading newspapers of Arkansas and Oklahoma. Appellants had notice of the day of sale. It brought a very substantial sum, of which no complaint is made, but not enough to pay the judgment creditor in full, and nothing to preferred stockholders. They being prior to common stock, with Class A preferred ahead of Class B, we think it cannot very much concern a Class B preferred stockholder how much common is outstanding, and whether issued legally or otherwise, as it is without value except possibly for decorative purposes, or perhaps as silent reminders of a pleasant dream.
Affirmed. | [
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Hart, C. J.,
(after stating the (facts). In Clark County v. Spence, 21 Ark. 465, this court held that the county court had the authority, if it chose to exercise it, in its general oversight of the interests of the county, to make an allowance to the sheriff for so much as was expended by him for fuel, paper, blanks, and candles for the use of the sheriff’s office. In Leathem & Company v. Jackson County, 122 Ark. 114, 182 S. W. 570, Ann. Cas. 1917D, 438, this court held that the county court was the general fiscal agent of the county, and, in the exercise of its supervisory powers, had the implied power to employ an expert accountant to audit the official accounts and public records of county officers. In the case of Penix v. Shaddox, 165 Ark. 152, 263 S. W. 389, this court held that the county court has exclusive authority in the matter of assigning' offices in the courthouse to the several county officers.
In the application of these principles, the court is of the opinion that the county court in its discretion might furnish the office of the sheriff and the jail with telephones for the benefit of the county. Hence the county would be liable for the rent of the telephones just as any other subscriber would be.
It is conceded that the county was liable as a subscriber for the monthly rental of the telephones, but it is contended that it is not liable for the long distance calls which originated from the sheriff’s office, although they were made for the benefit of the people of the county in the administration of justice. We cannot agree with Counsel in this contention. In S. W. Tel. & Tel. Co. v. Sharp, 118 Ark. 541, 177 S. W. 25, L. R. A. 1915E, p, 323, it was held that telegraph and telephone companies may make rules and regulations which require that charges shall be paid ¡for a reasonable time in advance (by their subscribers, and ¡may enforce such regulations by the refusal of service to persons who do not comply therewith. It was further held that it was a reasonable rule for a telephone company to require that the telephone where long distance calls originate shall be responsible for the payment of the charges therefor and that the company has a right to enforce such rule. The reason is that the subscriber can easily control the use of his telephone by third persons, while it is impossible for the telephone operators to know and recognize the voices of all persons using ia telephone for long distance purposes, and to know to whom these calls should be charged in the absence of such- a regulation.
It is insisted that this rule or regulation should apply alone to private subscribers and not to public officers who have telephones installed in their offices. We cannot perceive any reason for such discrimination. Public officers are only required to keep their offices open during reasonable hours, and have just as much control over their telephones and the accessories to their offices as do private individuals or private corporations.
■ Therefore, we hold that the county, as the subscriber for the telephones, is bound by the regulations of the company in its' use just as other subscribers .are bound. It follows that the judgment must be affirmed. | [
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Bjqby, J.
This suit was brought in the' common pleas court of Ashley County and judgment recovered against appellee on a verified open account for. goods and merchandise sold and delivered to him. Upon his appeal to the circuit court and trial by jury verdict was returned in favor of appellee, and from the judgment thereon this appeal comes.
After the verdict was rendered appellant immediately filed what it called a motion in arrest of judgment objecting to the rendition of the judgment on the verdict on the ground that one of the jurors, Charley Slocum, was related to appellee. The motion reads as follows:
“Comes the plaintiff and files its motion in'arrest of judgment in above-styled cause, and for Cause states:
“That the court, while qualifying the regular panel of the jury in this cause upon their voir dire, inquired of all the members of the panel if they were related by blood or marriage to either of the parties to this suit by consanguinity or affinity; to which question all answered in the negative with the exception of one Roy Oliver, who replied that he is a third cousin; and the court thereupon ruled that the said juror was qualified, and it was.necessary for the plaintiff to strike said juror and thus exercising one of its challenges upon said juror who was so disqualified.
“That, since submitting this case to the jury and the return of its verdict, it has become known to this plaintiff for the first time that one Charley Slocum, a juror who sat in the trial of the cause and participated in the verdict, and who answered the foregoing voir dire examination of the court in the negative, is related to defendant, C. G-. Hears, in the degree of first cousin, blood relationship, and who is by law disqualified as a juror.
‘ ‘ That by reason of the court qualifying Roy Oliver, it was necessary for plaintiff to exhaust one of its challenges in order • to remove said juror from the jury selected to hear the cause.
“That by reason of Charley Slocum misrepresenting his relationship to the defendant, the jury which heard this cause was legally disqualified to render a verdict.
“Wherefore, plaintiff prays an order from this court in arrest of judgment and setting aside the verdict of the jury in favor of the defendant, and that said cause be immediately reset for trial.”
The motion-was supported by the affidavit of two persons as follows:
“We, W. >S. Allen, J. A. Kilcrease, citizens and residents of Ashley County, Arkansas, state on oath that we are well acquainted both with C. G-. Mears and his parents, and with Charley Slocum and his parents, and that the father of C. G. Mears and the mother of Charley Slocum are brother and sister.
“This January'21,1930.
“W. S. Allen,
“ J. A. Kilcrease. ’ ’
The court overruled the motion and exceptions were saved to the ruling, which was made a ground in the motion for a new trial which the court also denied. The motion and affidavit were not included in the bill of exceptions, but were brought into the record by certiorari.
Appellant insists that the court erred in denying its objection to the rendition of judgment or motion in arrest of judgment, on the verdict because of the disqualificati on of one of the jurors by reason of his being related to appellee within a prohibited degree and in refusing to grant a new trial on that ground. The statute provides:
“No person shall serve as a petit juror who is related to either party to a suit within the fourth degree of consanguinity or affinity * * Acts of 1919, p. 400, C. & M. Digest, § 6334.
“No verdict shall be void or voidable because any of the jurymen failed to possess any of the qualifications required in this chapter; nor shall exceptions be taken to any juryman for that cause after he is taken upon the jury and sworn as a juryman. ’ ’ Section 6343, C. & M. Digest. - • ■
In Durben v. Montgomery, 145 Ark. 368, 224 S. W. 729, this court said:
“We have stated the rule on this subject to be that ‘when objection is -made to a juror after the verdict for the first time, due diligence must be shown by the objecting party,’ and that it then ‘becomes to some extent a matter of discretion with the trial court as to whether or not the verdict shall be set aside; and when there is no fraud intended or wrong done or collusion on the part of the successful party, it is not reversible error for the trial court to refuse to set aside the verdict.’ Gershner v. Scott-Mayer Com. Co., 93 Ark. 301, 124 S. W. 772.”
In. Mo. Pac. Rd. Co. v. Bushey, 180 Ark. 19, 20 S. W. (2d) 614, this court said: “Under statute as well as the practice in this State, it is too late after the rendition of a verdict to raise the ineligibility of a juror to serve, unless it can be shown by the complaining party that diligence was used to ascertain his disqualifications and prevent his serving as a juror. Citing Crawford & Moses’ Digest, § 6343 and cases. In the instant case diligence was not shown. The contention of appellant for reversal of the judgment upon this ground is without merit. ’ ’
Appellee contends that the record does not show any diligence exercised by appellant to discover the relationship of the juror before the rendition of the verdict, the bill of exceptions not disclosing any questions asked by it of the jurors on voir dire, and therefore that no error was committed in overruling the objection to the rendition of the judgment on the verdict and the motion for a new trial on the ground of the relationship of the juror in a prohibited degree to appellee.
It is true that the bill of exceptions does not show any questions asked, either by the court or appellant’s counsel, of the jurors to ascertain whether they were related to either of the parties., and does not in fact show that Charley Slocum was a member of the jury returning the verdict, and also the bill of exceptions does not contain the .so-called motion in arrest o!f judgment with the affidavit disclosing the relationship of the juror to the appellee, the motion and affidavit being brought up by certiorari.
The majority is of the opinion that in the state of the record there was no such showing of due diligence made by the objecting party (the objection being made to the juror after the return of the verdict for the first time) as would require the granting of the motion to refuse to enter judgment on the verdict and refusing to grant the motion for a new trial on the ground of the alleged relationship of the juror to appellee. As heretofore held, it is a matter off discretion of the trial court as to whether the verdict should be set aside when objection is made to a juror after the verdict for the first time, and the majority of the court from the state of the record is not able to say that the court abused its discretion in overruling the motion and refusing to grant a new trial because of the alleged relationship.
The writer dissents from this view which allows a technicality to prevent the setting aside of a verdict rendered by a jury one otf the members of which was related to the defendant in a degree prohibited by law, who failed to disclose such relationship, which was necessarily known to him and the defendant at the time off his examination on voir dire and selection which amounts to a fraud intended or wrong done and collusion on the part of the successful party in the trial. The objection was made immediately after the fact of the relationship of the juror to appellee, of which appellant was unaware at the time of his acceptance on the jury, was discovered.
The judgment is affirmed. | [
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Butler, J.
Appellee company, plaintiff in the court below, brought this suit alleging that the appellant Houston was employed by it in May, 1924:, as its agent to solicit and write insurance and at the time of the employment a written contract and commission agreement was entered into, and an agency bond executed by Houston with the appellants Jones, Battin and Goodman as sureties thereon. A copy of the contract was attached to the complaint as Exhibit A, a copy of the commission agreement as Exhibit B, and a copy of the agency bond as Exhibit C. It was further alleged that by the terms of the contract with the appellant Houston the appellee reserved the right to cancel any policy of insurance procured by him and to return to the insured the unearned premium and to charge and collect from its said agent the unearned commission on the premium returned; that it was stipulated in the contract of agency that the agent might terminate the contract upon notice to the appellee company, and that the contract might be terminated “at the pleasure of the company”; that to secure the performance of the terms of the contract the appellant Houston was required to, and did, execute a -bond with the appellants Jones, Battin and Goodman as sureties, in which bond among other things the maker and sureties became bound for the “refund to the company of the unearned commissions on the premiums returned under canceled policies.” The complaint further alleged that from time to time during a period of nearly four years the appellee company canceled policies written at the solicitation of the appellant Houston, returned the unearned premium to those insured and charged to Houston’s account with it the unearned commissions on such premiums refunded, and filed with its complaint an itemized list of the canceled policies, giving opposite each policy a detailed statement otf the facts regarding it,including the amount otf full premiums received, amount of same returned and the amount of the commissions due to be refunded on the unearned premiums. It was alleged that the total of the unearned commissions due amounted to $898.04, that the agent Houston had failed to repay same, and that because of this the agency of Houston was canceled and judgment prayed for the above amount.
Appellant Houston filed the following answer and cross-complaint:
“He denies that he is indebted to plaintiff in the sum of $898.04 or in any other sum. He denies that he is indebted to plaintiff on the policies mentioned in plaintiff’s exhibit to its amended complaint in any sum whatever, viz., policy 811898 — $6.48. (Then follows the numbers of 122 policies mentioned in said Exhibit D and the amount as claimed in said exhibit). He denies that it was the intention and meaning of his contract and the bond which he executed with R. E. Jones, W. L. Battin and J. A. Goodman as his sureties that after he had procured the applications for insurance, the same had been approved by plaintiff and policies issued by plaintiff to applicants and the same delivered by defendant and his commission paid to him that the plaintiff could arbitrarily and without cause cancel said policies and demand of defendant and his 'bondsmen the return of his commissions which he had earned and which had been paid to him.
“He alleges that each and every one of the above named policies were approved and written by the plaintiff and delivered to defendant for the insured, that defendant’s commission was paid him, and that, with a very few exceptions, the plaintiff without cause arbitrarily canceled said policies and is now seeking by this suit to recover from him and his bondsmen the commissions which he justly earned and had received; that the few exceptions where policies were canceled for cause he has paid plaintiff the commission on the unearned premium, and that he is not indebted to plaintiff in any sum for unearned commission.
“He denies that, exercising any rights and authority it had under said agent’s contract, and acting for its safety, protection and best interests, it canceled a number of policies of insurance which had been written by it by virtue of its contract with defendant; and states the fact to be that the same were arbitrarily, wantonly and without just cause so canceled. He denies that the policies canceled by plaintiff by which he was obligated to refund to plaintiff, over and above those settled and paid for, amounts to $898.04 or any other sum. He denies that he,is indebted to plaintiff for “court costs suit filed 9/19/27” in the sum of $15 or any other sum. He denies that he is indebted to plaintiff for “bond 2/24/28” in the sum of $10 or any other sum.”
For his cross-complaint against the said American Insurance Company, this defendant, W. S. Houston, and cross-complainant says:
“That he honestly and conscientiously entered into the said contract with plaintiff and cross-defendant fully believing he could in the course of time build up an insurance agency which would be profitable to himself and re iminerative to said companytliat he devoted about three years of his entire time honestly and diligently working to that end, and had established an agency well worth the sum of $1,000, when without any just cause said plaintiff and cross-defendant canceled his agency arbitrarily, to his damage in the sum of $1,000.
“Wherefore, premises seen, this defendant and cross-complainant prays that plaintiff take nothing by its complaint herein, and that this defendant and cross-complainant have judgment against plaintiff and cross-defendant, the American Insurance Company, in the sum of $1,000 and all his costs in this cause expended.”
The appellant sureties answered denying the indebtedness and adopted the answer of the appellant Houston as their own.
The appellee interposed its demurrer to the cross-complaint of Houston, and without waiving its demurrer filed a reply. The court treated the demurrer as going to both answer and cross-complaint and sustained the same. The appellants elected to stand upon their answer and cross-complaint and refused to plead further, whereupon the court entered the following decree and judgment:
“On this day this cause coming on for hearing upon the regular call of the calendar, and comes the plaintiff, the American Insurance Company, by its attorneys, M. E. Vinson and Charles Q. Kelly, and the defendants come by their attorney, George W. Reed.
“The plaintiff’s demurrer to the defendant’s answer and cross-complaint comes on for hearing, consideration and ruling’ by the court, and, after hearing the argument of the counsel for both the plaintiff and defendants and being well advised in the premises, the court doth sustain the plaintiff’s demurrer to the defendants’ answer and cross-complaint and dismisses the same, to which ruling of the court in sustaining said demurrer the defendants at the time excepted and asked that their exceptions be noted of record, which is done. And the defendants elect ing to stand upon their answer and cross-complaint and refusing- to plead further herein. It is therefore by the court considered, ordered and adjudged that defendants’ answer and cross-complaint be dismissed and held for naught, and that the plaintiff, the American Insurance Company, do have and recover of and from the defendants, W. S. Houston, ft. E. Jones, W. L. Battin and J. A. Goodman, the sum of $957.65 and costs of this action, and that this judgment shall bear interest at the rate of six per cent, per annum from this date; and upon this judgment let execution or other process issue.”
The appellants made no specific objection to the action of the court in treating the demurrer as applying to the answer as well as to the cross-complaint, but all parties seem to have acquiesced in this action of the court. The appellants merely contend in their brief and argument that the answer stated a defense and the cross-complaint a cause of action, and that in holding otherwise the court erred. There was no denial in the answer of the cancellation of the policies, or that the unearned premiums had been refunded to the parties insured, and while there was a denial of any indebtedness to the company, both as to total amount sued for and the specific amounts mentioned accruing as unearned commissions on the specific policies mentioned, from an examination of the answer, giving to each part and to the entire plea every reasonable intendment, it is clear that the denial of liability is based on the allegation of the answer “that after he had procured the application for insurance, the same had been approved by plaintiff and policies issued by plaintiff to applicants and the same delivered by the defendant and his commission paid to him * * * the plaintiff, without cause, arbitrarily canceled said policies and is now seeking by this suit to recover from him and his bondsmen the commissions which he justly earned and had received; that the few exceptions where policies were canceled for cause he has paid plaintiff the commis sion on the unearned premium, and that he is not indebted to plaintiff in any sum for unearned commission
The theory of the appellant Houston is untenable because it is in conflict with the terms of the agency agreement and bond, by which it was expressly agreed that the agent “should refund to the said company the unearned commissions on premiums returned under canceled policies.” Therefore, as is said in the case of Hill v. Ætna Insurance Co., 180 Ark. 401, 21 S. W. (2d) 180: The appellant was liable for the unearned commissions collected.” The cross-complaint states no cause of action because it, too, conflicts with the contract. For by it the agent might terminate his agency upon written notice to the company to that effect, or it might be terminated at the pleasure of the company, and in the same paragraph of the contract is the further provision that the cancellation of the contract should not terminate or change the liability of the agent to- the company for returned commissions upon policies canceled prior to the cancellation of the contract.
It follows that the judgment and decree of the trial court is correct, and it is therefore affirmed. | [
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McHaney, J.
Sometime prior to April 1, 1928, James Levy, who desired to go into the cleaning and pressing business for himself, approached appellant to interest him in such business. An agreement was reached, whereby- each was to put up one-half the necessary capital, appellant was to erect a building at Prospect and Palm, city of Little Rock, with two store rooms, the inside room to be occupied by the proposed business. The room was to be specially arranged for the business, with fireproof walls, and a portion of the expense thereof was to be borne by the business. They agreed upon a lease for five years from the time the building should be ready for occupancy at a monthly rental of $125 for the first two years and $140 monthly for the remainder of the term. Thereafter the building was completed, -the proposed business incorporated under the name of Bon Ton Cleaners, with Levy, his mother and appellant as stockholders, directors and officers, Mrs. Levy being a nominal stockholder in order to form a corporation. The lease agreement was then prepared, in accordance with the former understanding, and executed, running for five years from April 1, 1928. The Bon Ton entered into possession on that date and operated the business, paying the rent regularly each month until the summer of 1929, when it was merged or consolidated with a number of other cleaning establishments under the name of United Service Company, appellee. It (the United) thereafter paid the monthly rental to appellant until April 1, 1930, when the increased rental reserved in the lease became effective. It refused to pay the rent for April, moved out and surrendered possession on April 13, 1930. This suit followed to collect the rent. Appellee defended on the grounds that the rent was exorbitant and that the lease was invalid because of appellant’s relation to the Bon Ton and appellee, lie being secretary and treasurer of the former and was elected president of the latter. The court agreed with appellee, canceled the lease and gave judgment for a reasonable rental for April and May in the sum of $'200.
It is true, as a general proposition and as suggested by counsel for appellee, that “No man can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other,” Matt. 6, 24; but we are of the opinion that that principle has no application here. We know of no rule of law in this State that prohibits a person who may be an officer or director in a corporation from dealing with the- corporation, such as leasing his property to it, upon such terms as may be agreed, upon, in the absence of fraud, either actual or constructive, and in good faith and without prejudice or unfairness to the corporation. This court has never adopted the extreme rule that contracts between a corporation and its directors are void, but only voidable, if not made in good faith and are unfair to the corporation. In Ward v. McPherson, 87 Ark. 521, 113 S. W. 42, it was said: ‘ ‘ Some authorities hold such contracts to be absolutely void, but the weight of American authority is that the contracts between corporations and their directors, dealing with the corporate assets, are not void but voidable. Where they are held voidable, however, all agree that they are more closely scrutinized than ordinary contracts; and the burden is upon those claiming under them to prove that they are made in good faith and fair to the corporation.” This is the correct rule and has never been departed from in this State.
Here the facts are that the contract of lease was agreed upon, that is, the terms of it, before the house was ever built and before the corporation known as Bon Ton Cleaners was organized. James Levy ivas under no disability, was néither an infant nor an incompetent. If there had been no merger, no doubt no question would ever have been raised about the validity of the lease or the amount of the rental. But, when the merger took place, there is no evidence in this record that appellant concealed or attempted to conceal any fact relating to the status of the Bon Ton from any of the others whose properties were being merged into the new corporation. A recent audit of its business made by a reputable firm of public accountants was before all the interested parties. This audit called particular attention to the terms of the lease and they either knew its terms, or could have known them 'by the slightest diligence. In acquiring the property of the Bon Ton appellee acquired this lease. It operated under it for a period of eight months regularly paying the rents to appellant without question to April 1,1930. It must be held to have known the facts regarding the lease and acquired it, together with all the other property of the Bon Ton with whatever benefits and burdens it carried. We can see no reason why this lease, valid between the original parties to it, operated under as valid for two years, eight months of which time by appellee, should be canceled when the time has come for the small increase in the monthly rental.
The decree will therefore be reversed and the cause remanded with directions to enter a decree in accordance with-this opinion. | [
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Hart, C. J.,
(after stating the facts). It is first earnestly insisted by counsel for the plaintiff that the undisputed evidence shows negligence on the part of the defendant. In making this contention, they point out that several 'disinterested witnesses saw the shipment of guods when they were delivered to the plaintiff’s- store in Hot Springs, and that one of the boxes appeared to have been tampered with, that it appeared to have been opened before it was delivered to the plaintiff, and that about one-half of the contents of the box appeared to be missing and that the remaining contents of the box were Ori ental rugs.' The agent of the transfer company who handled the shipment at Hot Springs said that one of the boxes appeared to have been tampered with when the goods were delivered to the transfer company, and that it was not tampered with while in the possession of the transfer company. The transfer agent who handled the shipment at Eureka Springs testified that when the shipment of goods was delivered to him at the store of the plaintiff in Eureka Springs, the goods were securely packed in strong boxes, and that the goods were delivered to the railroad company in Eureka Springs in the same condition as when received. It will be noted, however, that the plaintiff alone testified that the goods now claimed to be missing were packed in the boxes that were shipped from E'ureka Springs to the shipper’s order at Hot Springs. Now, the gist of the action was the recovery of the value of five Oriental rugs claimed to be missing and to be worth something’ over $1,300.
In the first place, this court is committed to the rule that where a witness is a party to the suit and thereby interested .in the result of it, his testimony cannot be said to be undisputed and the case must be submitted to the jury. Skillern v. Baker, 82 Ark. 86, 100 S. W. 764, 118 Am. St. Rep. 52, 12 Ann. Cas. 243 ; Ford v. Wilson, 172 Ark. 335, 288 S. W. 712. ; and Blankenship v. Modglin, 177 Ark. 388, 6 S. W. (2d) 531. Zorub being the plaintiff in the action and being the only person who testified that the five rugs were packed in the box, under the rule above announced, the question was properly submitted to the jury on this issue. The .jury might have found that the testimony of Zorub was not true, or that he was mistaken, and that the five rugs which were the basis of this suit were never packed and shipped with the other rugs.
Again, it cannot be said that the testimony was undisputed. Of course, if the witnesses for the transfer company who handled the goods and the witnesses who saw the boxes on the platform when they were delivered to the plaintiff are telling the truth, one of the boxes appeared to have been tampered with and was only about half full of goods. As above stated, the jury might have found that the five rugs now claimed to be missing were never placed in the box or, if'they were placed there, that they were abstracted before the box was received by the defendant. According to the testimony of the witnesses for the defendant, the shipment did not appear to have been tampered with, but they might have been mistaken in this. At any rate, they testified in unequivocal terms that the boxes were not tampered with in transit while they were in. the possession of the defendant; and their testimony in this respect, if true, tended to contradict the testimony of the witnesses for the plaintiff. The jury was the judge of the credibility of the witnesses and might believe such of their testimony as it thought to be true and reject that part which it thought to be false. In the exercise of its discretion in this respect, it cannot be said that the plaintiff established his case by uncontradicted testimony. Hence, we hold this assignment of error is not well taken.
In the next place, it is contended that the court erred in refusing to give an instruction to the jury requested by the plaintiff. We do not deem it necessary to set out the instruction, for in other instructions given to the jury at the request of the plaintiff the case was fully and fairly submitted to the jury under the principles of law repeatedly decided by this court. Mo. Pac. Rd. Co. v. American Fruit Growers, Inc., 163 Ark. 318, 260 S. W. 39, and cases cited. In that case, it was held that, in the absence of proof to the contrary, damages to goods in transit is presumed to have occurred on the line of the delivering carrier. The court instructed the jury on this point as requested by the plaintiff, and the jury might have found that under the evidence adduced by the defendant that the loss, if any, to the shipment occurred on the line of the initial carrier and not on the line of the defendant as the delivering carrier.
It is next insisted that the judgment should he reversed because the circuit court found that the verdict was against the preponderance of the evidence, and that it became its duty to set it aside. This court is committed to the rule that where the trial court finds that the verdict is against the preponderance of the evidence, it must be set aside and a new trial granted. Mueller v. Coffman, 132 Ark. 45, 200 S. W. 136 ; Pettit v. Anderson, 147 Ark. 468, 227 S. W. 772 ; Bean v. Coffee, 169 Ark. 1052, 277 S. W. 522 ; Spadra Coal Co. v. Harger, 130 Ark. 374, 197 S. W. 705 ; Spadra Coal Co. v. Callahan, 129 Ark. 448, 196 S. W. 477 ; and Twist v. Mullinix, 126 Ark. 427, 190 S. W. 851.
We do not think the record sustains the contention of counsel. When a motion for a new trial was first presented to the court, certain remarks were made by the court with reference to it which are as follows:
“I really thought Mr. Zorub was entitled to recover something and was surprised at the verdict of the jury, but I don’t know whether the court should set up his judgment against the judgment of the jury, but I believe Mr. Zorub was entitled to something.”
Then the court took the motion for a new trial under advisement. Several days thereafter, when he finally overruled the motion, he made the following statement:
“I remember when the motion for a new trial was presented that we discussed it considerably, and that part of the motion that appealed to me at the time was your persistence in asking some question of Borland that I had held to- be incompetent. That was with reference, I believe, to Mr. Zorub’s reputation and standing; I had held that that was not a competent question, and, as I remember now, you asked that question a time or two afterwards and I felt really at the time, and do now, that that wasn’t just a mere oversight on your part, but the purpose of it maybe was to create a feeling against Mr. Zorub. That was the part of the motion for a new trial that appealed to me, but at the time the objection was made to that question I told the jury not to consider it, and I know I had quite a bit to say about the practice among some of the attorneys with reference to asking questions that I felt they knew to be improper, and if this had been the only time that that practice had been indulged in I would have set the verdict aside just on that ground. Now, I think I remember, too, expressing some opinion I had as to what I thought the verdict of the jury might be and I think did state that I thought the jury would find in his favor for some amount. I know 3 had that sort of an opinion about it at the time, and it is likely that I expressed such an opinion the day we had the motion for a new trial up. Of course, what I had to say at that time was just in conversation with the attorneys who were present on said occasion. I don’t remember, however, saying that I would set the verdict aside except for the fact that the Supreme Court would reverse it; I don’t remember that I had an idea of that kind about the matter. ’ ’
Mr. Scott Wood: “Just let that part of it go out then; fix it there to make it reflect the truth as you remember it, Judge; that is all we want.”
“The court then struck out the last clause of the court’s purported remarks on page 160, reading as follows: ‘and if I thought the Supreme Court would not reverse the case I would set the verdict aside.’
The court: “I took it under advisement for the purpose of determining whether I would -set it aside for your persistence in asking some question that I had held to be incompetent, but some of the attorneys have done that, and rather practiced it to some extent, and I just didn’t want to do that for the first time in this case, but that was the part of the motion that I considered the most seriously. Of course, on the merits of the case I likely had not considered the facts in the case as fully as the jury had; I may sometimes express an opinion about what a jury will likely do about a ease, when I perhaps had not followed the testimony as closely as the jury had, but I think I made the statement about as it is here, with the exception I don’t remember saying that I would set it aside if I didn’t feel the Supreme Court might reverse my order in setting it aside.”
What was said by the court has been presented thus fully in order that the trial judge’s mental attitude in passing on the motion for a new trial may be ascertained from the record. When the whole matter is considered, we do not think it can be said that the circuit court in any sense found that the verdict of the jury was against the preponderance of the evidence. As stated by the court, what was said by the trial judge when the motion was first presented was merely a conversation with attorneys in the case. It is one thing for a judge to express surprise about the verdict of a jury, because in his opinion many things might have entered into the minds of the jury in finding it. In order to find that it has erroneously overruled a motion for a new trial, it is necessary that a circuit court make a finding that the verdict of the jury is against the weight of the evidence; and a mere declaration that the court would have found the verdict differently does not amount to such finding. The court must not only differ with the jury in its conclusion upon the facts, but must find that the verdict of the jury is against the weight of the evidence, before the verdict should be set aside.
It is next insisted that the judgment should be reversed because of the improper conduct of the attorney for the railroad in -the cross-examination of the plaintiff. The record shows that the attorney for the defendant asked the plaintiff if he had not had a claim against an express company for a case uf imported nuts which turned out to be a case of Scotch whiskey. He was permitted to explain about the shipment and why he withdrew his claim against the express company. There was no error in this respect. It is true that the trial court should never permit counsel to browbeat or intimidate a witness or to ask him questions which are impertinent or insulting and which have no reasonable bearing upon the issue to be tried. It is well settled, however, that such discretion is vested in the trial court, and that, for the purpose of testing the credibility of the witness, counsel may in good faith ask him questions relating to his moral delinquencies and other things of that sort. Webb v. State, 138 Ark. 465, 212 S. W. 567 ; and Ogburn v. State, 168 Ark. 396, 270 S. W. 945. Many other cases to the same effect might be cited, but the rule is so well setlled that it is unnecessary to do so. In this connection, it may be stated that the same rule obtains in civil as in criminal cases.
It is next insisted that the court committed a like error in the cross-examination of J. Gus Bourland, a witness for the plaintiff. The court properly permitted this witness to be asked about certain contradictory statements he was claimed to have made with regard to the transaction. There is nothing to show that the examination of the witness in this respect was not made in good faith, and the trial court properly allowed it as testing the credibility of the witness, and no attempt was made to contradict his answer to the questions. Other matters alleged to be erroneous were excluded from the jury, and no answer was made by the witness to these questions. Hence, no prejudice could have resulted to the plaintiff in this respect, whether the questions in the cross-examination of the witness were proper or not.
We find no reversible error in the record, and the judgment will be affirmed.
Mr. Justice Kirby dissents. | [
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Holt, J.
Appellee sued appellant to recover damages to bis automobile which resulted when his car was struck by one of appellant’s Diesel powered passenger trains at a public street crossing in the town of Wilton, Arkansas. He alleged that appellant’s negligence consisted in its failure to keep a proper lookout, to give statutory signals (Ark. Stats. 1947, § 73-716), and in ob- . structing the view by placing a car of creosoted poles “on the side track adjacent to the side crossing.”
Appellant answered with a general denial and affirmatively pleaded the contributory negligence of ap-pellee.
A jury trial resulted in a verdict in appellee’s favor for $1,000. From the judgment is this appeal.
For reversal, appellant earnestly argues that the evidence was insufficient to support the verdict and that appellee’s own negligence was the sole proximate cause of the collision and resulting damage.
Appellant has a line of railroad, running north and south through the town of Wilton, with its depot on the east side of the track. A road or street runs east and west immediately north of the depot, crossing the railroad track at right angles. A spur, or a house track, leads off from the main line track at a point 200 feet south of this street crossing and runs southward.
At about 9 o’clock a. m., December 20, 1948, on the occasion of the collision involved here, there was a car of creosoted poles spotted on the house track at a point approximately 231 feet south of the crossing where the mishap occurred.
Appellee, together with his wife (sitting on the front seat with him), his daughter and another party sitting on the back seat, approached this crossing in his ear at a speed of about twelve or fifteen miles per hour. Ap-pellee testified that he listened, and looked both ways, alternately, as he approached the crossing. His wife was also looking and listening. He did not stop the car as he approached the crossing. The railroad track is on a slight elevation and there is a slight rise np to and over the track as they approached the crossing. They did not hear the train, a whistle or a bell. They were • about twelve feet from the crossing when appellee first saw the engine of the train coming into view from behind the car of poles which tended to obstruct his view. The train was moving about forty-five miles per hour. Wilton is a nonstop town. Appellee applied his brakes and in trying to avoid a collision, turned his car to the right. The engine passed and cleared his automobile but the side of the baggage car collided with it. There was also testimony that after the train stopped, it backed up and did some additional damage to appellee’s car.
Considering the evidence in its most favorable light in favor of appellee and the jury’s verdict, as we must, we cannot say, as a matter of law, that there was no substantial evidence on which the jury could have based its verdict. In the circumstances, whether appellee’s view as he approached the crossing was obstructed, whether proper signals were given, and a proper lookout kept, were questions that the jury might properly consider in determining the negligence of appellant. St. Louis-San Francisco Ry. Company v. Call, 197 Ark. 225, 122 S. W. 2d 178.
The question whether appellee was -guilty of contributory negligence, and also if the jury should find him negligent, whether his negligence equalled or exceeded that of appellant, were submitted to the jury.
At appellant’s request, the court instructed the jury in accordance with our socalled “Comparative Negligence Statute,” (Ark. Stats. 1947, § 73-1004, as amended by Act 140 of 1945 to cover property damage): * * Before the plaintiff (appellee) could recover anything in this case, he must prove by a preponderance of the evidence that there was negligence on the part of the operatives of the train, as alleged in the complaint, and even though you might find and believe from the evidence in the case that there was some negligence on the part of the operatives of the train, as alleged in the complaint, yet unless yon find that negligence was equal to or greater than that of the plaintiff, if any, then the plaintiff could not recover, and even though you might find and believe that the negligence on the part of the operatives of the train was equal to or greater than that of the driver of the automobile, then if you should find for the plaintiff, you should reduce his damages in proportion to the measure or degree of his negligence, as compared with that of the operatives of the train in causing and bringing about the damages resulting therefrom, if any.”
Appellant cites cases in support of his contention of the insufficiency of the evidence, but it suffices to say that all are distinguishable on the facts in each case.
Appellant next.argues that the court erred in permitting appellee to testify, on the question of damages, that prior to the collision, he had his car overhauled at a cost of $512 by putting in a new motor, new radiator, and overhauling the front, and the further testimony, over his objection: “Q. You knew the car before the accident you had? A. Yes, sir. Q. You could see the shape it was in after the accident? A. Yes, sir. Q. Based on that, did it look like it had any value ? Q. Has it any value except salvage value ? A. That is all — salvage value.”
He says: “The measure of the damage, of course, is the difference between the market value before the accident and that immediately afterwards.”
We think no error was committed in this connection. There was evidence that the car, after the mishap, had no value other than salvage of about $100, that it was worth about $1,000 before the collision, and if $898 were expended on repairs, it would have a value of $1,012. This testimony was proper in arriving at the measure of damages, which is conceded to be the difference between the fair market value before the collision and immediately thereafter. Golenternek v. Kurth, 213 Ark. 643, 212 S. W. 2d 14, 3 A. L. R. 593.
Appellant also contends that the court erred in giving certain instructions requested by appellee and in refusing a number requested by appellant. The record reflects that five instructions were given on behalf of appellee and nine for appellant. We do not discuss each of these instructions separately. It suffices to say that we have carefully examined all and find no error in any "of them. They appear to have fully and fairly covered every phase of the case.
Finally, appellant says: “The court’s so-called emergency instruction, given of his own motion to the jury after reporting that it failed to reach a verdict, contains clear reversible error, in the following language, to-wit: ‘I believe it is a case that you men are capable of going in and sitting down and thrashing the thing out, and doing what you think is right and just in this lawsuit.’ ”
The vice in the instruction, says appellant, is that, in effect, it gave the jury the power to do “what they think is right and just,” when the only power accorded them was “ to do what • the evidence and the law directs.” We are unable to find prejudicial error in this admonition of the court. We cannot agree that the jury, presumably composed of “persons of good character, of approved integrity, sound judgment and reasonable information,” (Ark. Stats. 1947, § 39-206) could have been misled, to appellant’s prejudice, by such an admonition, the effect of which, it seems to us, was to do no more than to admonish the jury to do what was right and just in the light of all the facts, and instructions "previously given. No abuse of the trial court’s power has been shown.
In McNew v. Wood, 204 Ark. 530, 163 S. W. 2d 314, we held: (Headnote 6) “The practical administration of the law requires that tria) judges shall have the power to admonish the jury as to the desirability of reaching a verdict,” citing Graham v. State, 202 Ark. 981, 154 S. W. 2d 584.
On the whole case, finding no error, the judgment is affirmed. | [
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Holt, J.
Appellees, owners of 11 acres of land with a dwelling thereon adjoining appellant’s right-of-way, brought this suit to recover damages in the amount of $1,000 for the closing, or obstructing, of a road crossing-over appellant’s railroad and right-of-way leading to ap-pellees ’ property in the town of Buckner, Arkansas. Appellant denied any liability. On a jury trial, and at the close of all the testimony, the court, on its own motion, and over appellant’s objections and exceptions, instructed the jury, as a matter of law, that from the evidence adduced, appellees had, in effect, by long continued adverse use of the crossing in question, acquired a prescriptive right in said crossing.
The Instruction (No. 1) contained this recital: “Gentlemen of the Jury, this suit is brought by the plaintiffs against the defendant, railroad company, for what the plaintiffs allege was the wrongful act of the railroad company in making unfit for use a certain crossing that had been used by the plaintiff and his tenants and others desiring to use it for a long period of years. There isn’t any evidence that it was a public crossing as the term is commonly used or that it was a private crossing as the term is used by the railroad company, but all the evidence is to the effect that this place on the railroad right-of-way was usable by the plaintiff and by his tenants and by others desiring to go across the railroad at that point for a long p'eriod of years, and that, beginning in 1922 or thereabouts, the railroad company for more than twenty years has maintained that spot as a crossing. . . . That presents an issue to the court as to whether or not this suit could be maintained by the plaintiffs. The defendant, railroad company, has defended the suit so far as that feature is concerned on the ground that such use was with its permission, and it, therefore, could withdraw that permission at any time it saw fit. The plaintiffs contend ... in view of the fact there was no other means of ingress and egress to such premises, the plaintiffs’ sole and only method of going to and from that place is across this place, the court is inclined to the view that the plaintiffs are entitled to recover in this case.”
Following this instruction, the court proceeded to submit the question of the amount of damages, only, for the jury’s determination.
The court erred in giving Instruction No. 1, above. It appears undisputed that the town of Buckner had never dedicated any street over this crossing. Appellees ’ use was not based upon any consideration. They did not claim any statutory right to its use under Ark. Stats. (1947), § 73-621, or §§ 76-110-11.
We do not detail the testimony. It suffices to say that there was evidence on the part of appellant tending to show that the use of this crossing, by appellees and the public, was permissive only, and on the other hand) evidence on the part of appellees of its adverse use for more than seven years or that they had used it as a matter of legal right and not as a matter of permission. This was a jury question.
The rule is well established that “permissive use cannot ripen into a legal right merely by lapse of time,” McGill v. Miller, 172 Ark. 390, 288 S. W. 932.
We said in Britt v. Berry, 133 Ark. 589, 202 S. W. 830: “The rule is that where the entry is permissive the statute will not begin to run against the legal owner until an adverse holding is declared, and notice of such change is brought to the knowledge of- the owner. ’ ’
On the other hand, it is also well established that “the statute of limitations operates against railroad corporations whose lands are held adversely as well as against individuals; and this applies to the right-of-way.” (St. Louis & San Francisco Railroad Company v. Ruttan, 90 Ark. 178, 118 S. W. 705.)
For the error indicated, the judgment is reversed and the cause remanded for a new trial. | [
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Butler, J.
At the November, 1929, term of the Faulkner Circuit Court in a case pending there in which appellees were plaintiffs and appellant was the defendant, a judgment was entered against the appellant by default. This appeal is from an order made at the May, 1930, term refusing to-set aside the judgment theretofore rendered.
It is the contention of the appellant that the judgment of the lower court was void and should have been set a.side because it was not served with summons in the manner prescribed (by law. The appellant is a fraternal insurance society, and the service of process in suits against it is prescribed by § 6092 of the Digest. This section requires that the service of process shall be had 'by transmitting the summons to the Insurance Commissioner, who, in turn, shall transmit the same to the secretary of the insurance society. It is admitted that the summons in this case was not served in that manner, but it is contended by the appellees that the summons was delivered directly to the secretary by the deputy sheriff, and that therefore the insurance society had actual notice of the pendency of the suit.
Appellant on its part contended in the court 'below that its secretary had no knowledge of the pendency of the suit nor did any other responsible agent of it have such knowledge. 'This issue olf fact was determined by the trial court on conflicting testimony in favor of appellees. We have examined the testimony adduced, and are of the opinion that the decision of the court below on this question of fact was not against the preponderance of the testimony. Therefore, the question we have to decide is, did actual knowledge on the part of the appellant of the pendency of the suit preclude it from having the judgment set aside af ter the lapse olf the term at which it was rendered?
In the case of State v. Hill, 50 Ark. 458, 8 S. W. 401, Mr. Chief Justice Oockrill, speaking for the court, said: “One who is aggrieved by a .-judgment rendered in his absence must show not only that he was not summoned, but also that he did not know of the proceeding in time to make defense, in order to get relief in equity.” Since that decision it has been held consistently by this court that if one has knowledge that he has1 been sued in ample time to interpose a defense, he will not be permitted to reopen the case and set aside a judgment rendered by default.
The reason for the rule was stated in the late case of Stewart v. California Grape Juice Corporation, 181 Ark. 1140, 29 S. W. (2d) 1077 : “The reason for the rule is that if one wishes to invoke the jurisdiction of the court at all, he should do so seasonably, and not wait until the court had pronounced a judgment which would not have been rendered had the showing been made that no service had in fact been obtained.”
Our decisions on this question are numerous and uniform, a number .of which are cited in Stewart v. California Grape Juice Corporation, supra.
It follows that the judgment of the lower court must be affirmed, and it is so ordered. | [
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George Rose Smith, Justice.
The appellee, Pat Row-lett, brought this suit against her parents, the appellants Tom and Mary Rainer, to obtain the custody of Pat’s four-year-old daughter, Janet Diana Rainer. The appellants, relying upon an oral contract with Pat, defended the suit upon the theory that they had “equitably adopted” the infant. The chancellor attached scant weight to the contract and awarded custody to Pat. In seeking a reversal the appellants continue to assert a contractual right to the custody of their grandchild.
The facts are so unusual as to be without precedent. In 1967 the appellee, then an unmarried fourteen-year-old high school student, became pregnant in Texas, where the Rainer family was living. A few months later the family moved to Guy, Arkansas. It was orally agreed between Pat and her parents that when the child was born it would be entered upon the birth records as the child of Mr. and Mrs. Rainer, who agreed to bring up the infant as their own. That course was followed. After the child’s birth Pat continued to live with her parents and went back to school. For some three years the infant was supported by the elder Rainers and was told that they were her parents and that Pat was her sister.
In July, 1971, Pat married Jerry Rowlett, who knew that Janet was Pat’s daughter. The Rowletts soon moved to a home of their own, taking Janet with them. The child was then told that the Rainers were her grandparents and that Pat was her mother.. Mrs. Rainer, who was apparently the dominant moving force throughout the sequence of events, testified that she allowed the Rowletts to take the child upon a trial basis only, to see if the marriage was successful. After more than a year the Rowletts experienced some rather inconsequential marital difficulties, which they attributed to their fear that Mrs. Rainer would take Janet away from them and to Mrs. Rainer’s reaction to Jerry’s proposal that he adopt Janet. In January, 1973, Mrs. Rainer obtained possession of the child by telling Pat that she would look after the child while Pat was shopping. Mrs. Rainer refused to give up the child, so that Pat was compelled to bring this suit to regain custody.
The chancellor’s decision was plainly right. We stress the fact that the oral contract did not provide that the Rainers would adopt Janet, subject to the various safeguards contained in our adoption statutes. Instead, Pat was to release her own parental rights to the Rainers, who would bring up the child as their own. Such a contract is contrary to public policy. As the Restatement of Contracts points out, “a bargain by one entitled to the custody of a minor child to transfer the custody to another person, or not to reclaim custody already transferred of such child, is illegal unless authorized by statute.” Rest., Contracts, § 58B (1932).
We expressed that view in Washaw v. Gimble, 50 Ark. 351, 7 S.W. 389 (1887), saying: “The custody of a child is not the subject of gift or barter. A father cannot, by a mere gift of his child, release himself from the obligations to support it or deprive himself of the right to its custody. Such agreements are against public policy and are not strictly enforceable.” In the case at bar there is the added circumstance that Pat was only fourteen when the agreement was made and was therefore entitled to disaffirm the contract upon reaching her majority, even if the agreement had been valid.
The true issue before the chancellor, as in any custody case, was the best interest of the child. As between a mother and grandparents, the mother is entitled to her child unless she is unfit to be entrusted with its care. Nolan v. Nolan, 240 Ark. 579, 401 S.W. 2d 13 (1966). Here there is no such intimation. To the contrary, even Mrs. Rainer testified that Pat is a good mother. Upon the proof the chancellor’s conclusion was the only proper one.
Affirmed.
Harris, C.J., not participating. | [
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Robert L. Brown, Justice.
The appellant, Barnes, Quinn, Flake, and Anderson, Inc., appeals from a verdict and judgment in favor of the appellee, Marcia Garrison Rankins, in the amount of $11,000 resulting from a broken ankle sustained at an apartment complex managed by the appellant. All three issues raised on appeal revolve around Rankins’s knowledge that there was an unsafe condition on the premises, that is, a hole in the parking lot which resulted in her injury. We hold that the issues raised are without merit, and we affirm.
Rankins was a tenant at the Red Oak Apartments in Little Rock, which were managed by the appellant, when the injury occurred on September 6, 1988. She was returning home from work at St. Vincent Infirmary at approximately 11:00 p.m. when she stepped in a hole in the parking lot and broke her ankle. The hole had been in the parking lot for as long as two to six months, according to Rankins. Jean Jackson, who worked for the appellant as the resident manager of the apartments, knew about the hole and had attempted to rectify the situation by blowing dirt, sand, and gravel into it. The hole was never filled so as to be level to the parking lot, and, according to Jackson, from time to time water caused the fill to wash away.
Rankins also knew that the hole was there, but at the time of the accident, she testified that she was tired and eager to get home. She also said that she was looking ahead and had books and a purse in her arms when she fell. The parking lot area, according to her testimony, was not well lighted, though this was contested by the resident manager.
Rankins sued the appellant for keeping the premises in an unsafe condition and for failure to warn and sought damages for medical expenses, lost wages, and pain and suffering in the amount of $25,000. At trial, Jean Jackson testified that she had asked an asphalt repair man to fill the hole, and he said that it could not be done because the hole area was too wet to accommodate asphalt. Following the trial, the jury awarded Rankins $11,000.
I. JURY INSTRUCTION
The appellant argues first that the circuit court erred in refusing to instruct the jury on Rankins’s duty to see, hear, think, and discover obvious dangers. The court gave the following instructions regarding duty and negligence:
INSTRUCTION NO. 6, AMI 206
Barnes, Quinn, Flake & Anderson and Donald J. Parks contend that Marci Rankins was negligent which was the proximate cause of her own injury. Barnes, Quinn, Flake & Anderson and Donald J. Parks have the burden of proving this contention.
INSTRUCTION NO. 9, AMI 1104A
In this case Marcia Rankins was [a tenant] upon a premises owned by Don Parks and leased to Marcia Rankins.
Don Parks and Barnes, Quinn, Flake & Anderson, Inc. owed Marcia Rankins a duty to use ordinary care to maintain the premises in a reasonably safe condition.
INSTRUCTION NO. 10, AMI 303
A failure to exercise ordinary care is negligence. When I use the words “ordinary care,” I mean the care a reasonably careful person would use under circumstances similar to those shown by the evidence in this case. It is for you to decide how a reasonably careful person would act under those circumstances.
INSTRUCTION NO. 11, AMI 305
It was the duty of all persons involved in the occurrence to use ordinary care for their own safety and the safety of others.
The court, however, refused to amend AMI instruction 1104A by adding the following clause, as requested by the appellant:
However, the Plaintiff is also required to exercise ordinary care by using her ability to see, hear, and think to discover obvious dangers to which she may be exposed.
The language for the proffered addition was drawn from a case in which the federal district court in a bench trial found the plaintiff forty-five percent at fault and described the plaintiffs duty in terms of the proffered language. Phillips v. Morton Frozen Foods, 313 F.Supp. 228 (E.D. Ark. 1970). The failure to give the amended instruction, the appellant contends, was error. We disagree.
The jury was instructed that all parties involved in the matter had the duty to exercise ordinary care, and was further instructed on what constituted ordinary care. Rankins’s duty, as a result, was relayed to the jury in terms of how a reasonably careful person would act under these circumstances. We have held that it is not error to refuse an instruction if the AMI instructions given embrace the instruction disallowed. Newman v. Crawford Construction Co., 303 Ark. 641, 799 S.W.2d 531 (1990). Nor is it error to give an instruction that defines the duty owed only in general terms. See Dena Construction Co. v. Burlington N.R.R., 297 Ark. 547, 764 S.W.2d 419 (1989).
Here, the circuit court correctly concluded that an instruction specifically alluding to Rankins’s sensory perception and memory as aspects of reasonable care was not warranted. This was so even though the court did instruct the jury that the appellant had a duty to maintain the premises in a reasonably safe manner. In the definition of ordinary care applied to both parties and in the instruction relating to the appellant’s duty to maintain the premises, reasonable care and safety were the operable watchwords. What facts constitute reasonable care is for the jury to decide. The circuit court did not abuse its discretion in refusing to give additional illustrations of what elements might comprise reasonable care.
II. DIRECTED VERDICT
The appellant next contends that Rankins failed to prove negligence on the appellant’s part in failing to repair the hole properly, and, accordingly, a directed verdict should have been given in the appellant’s favor.
Our standard of review in determining the propriety of refusing a directed verdict is whether the verdict of the jury is supported by substantial evidence, that is, evidence that is sufficient to compel a conclusion one way or the other and that goes beyond suspicion or conjecture. Young v. Johnson, 311 Ark. 551, 845 S.W.2d 509 (1993); Kinco, Inc. v. Schueck Steel, Inc., 283 Ark. 72, 671 S.W.2d 178 (1984).
The appellant, through its employee, Jean Jackson, knew about the unsafe condition in the parking lot but failed to repair it with a permanent fill such as asphalt for a period of some months. On this point, the jury could well have concluded that Jackson was not convincing when she testified that the hole could not be permanently repaired with asphalt. The efforts to repair the hole with sand, gravel, and other debris were clearly inadequate because the area where the hole was located was subject to being washed out during wet weather.
Our law in this regard is well settled that when a landlord undertakes to repair the premises, the landlord is liable for any negligence in making those repairs. Sparks v. Murray, 120 Ark. 17, 178 S.W. 909 (1915). The repair work in the present case was of doubtful competence. The incompetence of the repairs and whether this rose to the level of negligence was for the jury to decide. The jury concluded that it did and found for Rankins. We cannot say that the verdict was not supported by substantial evidence.
III. PROXIMATE CAUSE
The appellant, for its final point, contends that the hole was not the proximate cause of the accident, but that Rankins’s inattention was, and that the circuit court, as a consequence, erred in refusing to direct a verdict on proximate cause in the appellant’s favor.
The jury was instructed on proximate causation and comparative fault. Suffice it to say that there was more than sufficient evidence presented to confirm that the hole was a proximate cause of the accident. The decision on causation, accordingly, was appropriately left to the jury. Because only a general verdict was requested, we are left to speculate on whether the jury believed both parties caused the injury but that Rankins’s negligence was of a lesser degree. We do know that Rankins prayed for $25,000 in damages and received $11,000.
This is not a case such as we had in May Construction Co. v. Frick, 253 Ark. 642, 488 S.W.2d 3 (1972), where the plaintiff knew about the hoses on the sidewalk and fell as she attempted to step over them. Here, Rankins, though generally aware of the hole, was walking across a parking lot at night (the subject of effective lighting was in dispute) and testified that she was not mindful of the hole when she fell and broke her ankle. Causation was for the jury to decide, and there was no error in the circuit court’s decision to deny a directed verdict on this issue. To hold otherwise would be to absolve landlords of any responsibility for the lack of repair of defective conditions on their premises when the tenants know generally about those conditions.
Affirmed.
Glaze, J., not participating. | [
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Mehaffy, J.
This appeal is prosecuted to reverse a judgment of the circuit court against' appellant and in favor of appellee for $10,000 for the death of appellee’s husband, Frank LeClerch.
On and prior to July 13, 1928, Frank LeClerch, who was the husband of appellee, was in the employ of the Gaither Coal Company as a coal miner engaged in mining coal' at appellant’s 'mine in Logan County, Arkansas. Within the mine where deceased, Frank LeClerch, was at work for appellant, there was a line of wires charged with electricity, and appellee alleged that appellant negligently and carelessly failed to reasonably and sufficiently insulate said wires so as to prevent the discharge therefrom of such dangerous, deadly current of electricity, and negligently and carelessly failed to insulate said wires; that appellant negligently and carelessly permitted the insulation of said wires to become old, rotten, worn out and defective, insufficient, wet and insecure so that the deadly and dangerous current of electricity had passed through said insulation and negligently and care lessly failed to warn and notify its employee, Frank LeClercli, of the hazards and dangers of coming in contact with said wires; that while deceased, on July 13, 1928, was passing along and through the slope entry and along adjacent to said wires, he came in contact with said wires as a direct result of the negligence and carelessness of defendant; that, because of the negligence of the appellant, the electricity from said wires escaped from said wires and into said Frank LeClerch; that the negligence of appellant was the cause of the death of said Frank LeClerch, and that appellee was thereby damaged. .'
Appellant filed answer admitting it was a corporation and denying all the other material allegations in the complaint, and pleaded contributory negligence and assumption of risk. The evidence as to the condition of the wires and as to insulation is conflicting; some of the witnesses testifying that the insulation was poor, some places naked, fabric ruffed up and saturated with water. Other witnesses testified that the insulation was perfectly good. After deceased went into the mine to work, his body was found about seventy or eighty feet from the entry, with his head towards the mouth and feet down the slope; he died a little after 4 o’clock. There were three electric wires in the mine along the west side of the slope, the lowest five feet from the ground and two above, six or eight inches apart.
According to the testimony of Dr. Jewell, there was found on deceased a fresh burn on the left orbit, seared brown just like a piece of hot iron would burn;' looked like all other electric burns he had seen; had a deep burn on the left shoulder, like a hot iron had been laid on the shoulder, about three inches long and about an inch wide; burn on temple about three inches long and an inch or more wide, were the only marks found. - This witness, Dr. Jewell, had studied electricity for twenty-two years and understood its effect on the human system and body; made experiments and knows the effect of electricity upon the body. In his opinion, death was caused by coming in contact with these wires, saw nothing to indicate that deceased had heart trouble. Deceased was fifty-one years old and appellee was forty-seven years old. They had been married twenty-five years, and had only one child, a daughter, who was twenty-two years old and married. Deceased’s health was good, and he had no heart trouble that appellee knew of: He had no bums on head or shoulder before his death; earned fifty or sixty dollars a week and spent fifty or sixty dollars a month on appellee.
A number of witnesses for appellant, including some members of the coroner’s jury, testified that they found no naked places on the wires, and that they appeared to be in good condition; that the insulation appeared to be fairly good. Some of them stated that they did not think a man could go along and fall and get killed where deceased was found. They testified also that the wires were the same as used in other mines. Some of the appellant’s witnesses also testified in substance that there was a little scar on deceased’s head and a burned place on his shoulder. They ran their hands over the wire without any injury or shock; that they did not find any place where deceased could have been hurt on the wire. Some of' these witnesses, however, admitted that the insulation was a little frizzly around the wire. The wires were three years old. It was shown by one of appellant’s witnesses that a fuse had blown out about the time they found the body; that there was a little noise or flash. After this fuse blew out he found the body, found the man was dead.
The testimony was conflicting on all material points, and. no useful purpose could be served by setting it out at length.
The appellant contends that the court erred in not granting it a new trial and in permitting a verdict to stand against the weight of the evidence and physical facts, but a sufficient answer to this is that there was ample testimony to make the negligence of the appellant a question for the jury, whose province it is to pass upon the credibility of witnesses and the weight to be given their testimony.
It is next contended that the court erred in not permitting appellant to put on all the members of the coroner’s jury. The court said: “Don’t call any more coroner’s jury to show the same thing. You have had a number of the members of the jury. If you have anything new, I will permit it. If it is the same thing, it just takes the time of the jury.” However, appellant did not make any objection to this statement of the court at the time, and did not state what he expected to prove by any other witnesses he wished to put on. The court had already permitted six of the coroner’s jury to testify.
After the statement by the court, the appellant continued with the examination, of the witness he had just called, and did not call any other witness and did not offer any other evidence but- acquiesced, without objection, in the ruling of the court. This objection cannot be considered by this court for further reason that it was not made one of the grounds of appellant’s motion for new trial. A question not raised in appellant’s motion for new trial will not be considered on appeal. United Order of Good Samaritans v. Anderson, 171 Ark. 1033, 287 S. W. 194 ; Welch Stove $ Mercantile Co. v. Burris, 165 Ark. 556, 265 S. W. 68 ; Jones v. Fowler, 171 Ark. 594, 285 S. W. 363 ; Pierce v. Secard, 176 Ark. 511, 3 S. W. (2d) 337 ; Presley v. Actus Coal Co., 172 Ark. 498, 289 S. W. 474 ; Miller Rubber Co. v. Brewster-Stevens Service Station, 171 Ark. 1179, 287 S. W. 577 ; Myers v. Andre, 161 Ark. 393, 256 S. W. 363 ; Battle v. Draper, 149 Ark. 55, 231 S. W. 869.
Appellant’s next contention is that the case should be reversed because the court gave its preliminary instruction or statement to the jury. This simply stated the issues, and we do not think the statement was improper. It is contended that, as no one saw the death, the jury had to guess how it happened. We do not agree with appellant in this contention. A number of witnesses testified as to defective wires and poor insulation and testified that there were burns on the body. In addition to the testimony of these witnesses, Dr. Jewell, the county health officer, testified that in his judgment his death was caused by coming in contact with wires. The undisputed evidence shows that Dr. Jewell had had considerable experience and was qualified to testify as to the effect of coming in contact with the wire. The cause of death was a jury question, and there was substantial evidence to support the verdict.
It is finally insisted that the case should be reversed on the ground that the plaintiff was not the proper party. to sue, and that she had no right under the law to maintain this action. This question was not raised in the court below, and was not made one of the grounds for new trial in the motion for new trial. Appellant calls attention to and relies on the following authorities. Railway v. Hutchinson, 101 Ark. 424, 142 S. W. 527 ; Jenkins v. Midland Valley Rd. Co., 134 Ark. 1, 203 S. W. 1 ; Railway v. Henrie, 87 Ark. 443, 112 S. W. 967 ; Railway v. Sweet, 63 Ark. 563, 40 S. W. 463 ; Alko Nak Coal Co. v. Barton, 88 Okla. 212, 212 Pac. 591 ; M. K. & T. Ry. Co. v. Perino, 89 Okla. 136, 214 S. W. 907 ; and Sanders v. Ry. Co., 66 Okla. 313, 169 S. W. 891. In the first case cited the court said: “The proof shows that no personal representative had been appointed, and that all the heirs of the deceased were parties which supplied any defects in the averments of the complaint, and such' suit could be maintained by them.” In the next case relied on, the trial court sustained a demurrer to the complaint, and this court said that was right. If this question had been raised in this case in the court below it would doubtless have been properly settled by that court. In the next case, Ry. Co. v. Henrie, the evidence did not show that there was no personal representative, and the court, after stating that, while the evidence did not expressly negative the facts contended for by appellant, it did so by fair implication, and said: “Aside from a formal denial in the answer of the allegations of the complaint concerning administration and next of kin, appellant does not appear to have insisted on the question until the case reached this court.” The case of Ry. Co. v. Sweet, relied on, does hot decide the question here involved. The court said: “But they were instituted to recover different damages, and neither is a bar to the other. ’ ’ In each of the Oklahoma cases referred to the question was raised by demurrer in the trial court. In the instant case there was no demurrer, and no objection on the ground that the plaintiff did not have the legal capacity to sue. Our statute expressly provides that: “The defendant may demur to the complaint where it appears on its face that the plaintiff has not legal capacity to sue.” C. & M. Digest, § 1189.
Our statute also provides that: “When any of the matters enumerated in § 1189 do not appear upon the face of the complaint, the objections may be taken by answer. If no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court over the subject of the action, and the objection that the complaint does not state facts sufficient to constitute a cause of action.” C. & M. Digest, § 1192.
The appellant, at the close of appellee’s testimony, made the following motion: “The defendant moves the court for an instructed verdict for the reason that the plaintiff has shown no act of negligence on the part of the defendant that would have or could have caused the death of the deceased. ’ ’ At no time was it suggested that the plaintiff was not the proper party to sue. The objection that plaintiff did not have legal capacity to sue must be made in the manner provided in the statute. Murphy v. Myar, 95 Ark. 33, 128 S. W. 359 ; Love v. Cohn, 93 Ark. 215, 124 S. W. 259 ; Ry. Co. v. Watson, 97 Ark. 560, 134 S. W. 949 ; Texarkana Gas & Elec. Co. v. Orr, 59 Ark. 215, 27 S. W. 66. The evidence in the instant case shows that the daughter was made a party, that she is the only heir of the deceased, that she is married and 22 years of age. The undisputed proof shows that she was not receiving any contribution from her father, and at the close of the evidence the court directed a verdict in favor of the defendant as to the daughter. The undisputed evidence shows that appellee was the only person entitled to recover for the death of the deceased, and both parties asked and the court gave instructions to the jury, limiting her recovery to the amount of her pecuniary loss as shown by the evidence.
We find no error, and the judgment is affirmed. | [
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Steele Hays, Justice.
In this case, Bill Boren, Jr., appeals a conviction under Ark. Code Ann. §4-90-204(d) (1987), failure to disclose the alteration of an odometer on a vehicle offered for sale. He has raised two issues on appeal, neither of which has merit.
Bill Boren, Jr. was operating a used car dealership under the name Boren Motor Company. The police received an anonymous tip that there had been some odometer “rollbacks” on cars connected to that dealership. Further investigations were conducted resulting in appellant being charged with four counts of tampering with odometers, Ark. Code Ann. § 4-90-204 (1987) [Ark. Stat. Ann. § 75-2402(4) (1979)].
On May 20,1987, a jury trial was held in the Circuit Court of Crawford County, Arkansas. When the state rested its case, appellant moved for a directed verdict based on the state’s failure to prove knowledge of alteration. The motion was denied and at the close of the appellant’s case the motion was renewed and again denied. The jury returned a verdict of guilty on all four counts and imposed a fine of $1,000 on each count and additionally, a term of one year on count two.
I
On appeal, Boren first assigns error to the trial court’s denial of his motion for a directed verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence, not to the nature or character of the evidence, and is proper only when no issue of fact exists. On review, we consider the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Only testimony in support of the verdict need be considered. David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985). Our responsibility is to determine whether the verdict is supported by substantial evidence, that is, whether the jury could have reached its conclusion without having to resort to speculation or conjecture. Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). We do not judge the credibility of witnesses, but instead weigh the evidence in the light most favorable to the appellee to see if there is substantial evidence to support the verdict. Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985). Viewing the evidence in that light, we find the trial court’s denial of the directed verdict was proper.
Appellant was prosecuted under Ark. Code Ann. § 4-90-204 (1987), which reads in part:
(d) No person shall sell or offer for sale any motor vehicle with knowledge that the mileage registered on the odometer has been altered so as to reflect a lower mileage than the motor vehicle has actually been driven without disclosing such fact to prospective buyers.
We have not had occasion to interpret our odometer act, Ark. Code Ann. § 4-90-201 (1987) et seq., so we have looked for authority from cases under the federal act, 15 U.S.C.A. § 1981 (1982) et seq., which is very similar to the Arkansas act, and to acts in other states. For the state to prove its case against appellant under § 4-90-204(d) (1987), it was necessary to show that appellant had knowledge that the mileage registered on the odometers had been altered so as to reflect a lower mileage, and that he failed to disclose this fact to prospective buyers.
To prove an alteration of an odometer was done with knowledge and, therefore, intentionally it has generally been held that if it is shown that the alteration took place while the automobile was under the dominion and control of the defendant or his agents the evidence is sufficient. United States v. Hugh Chalmers Chevrolet-Toyota, Inc., 800 F.2d 737 (8th Cir. 1986); State v. Kennedy, 224 N.W.2d 223 (Iowa 1974); State v. Biter, 49 Del. 503, 119 A.2d 894 (1955); and see United States v. Studna, 713 F.2d 416 (8th Cir. 1983), where the evidence on this point was not challenged, but the court noted that on the odometer rollback charge the state had shown that the odometer had been rolled back during the time the cars had been owned by the defendant and that this evidence was overwhelming.
Evidence of alteration is often circumstantial: usually it is shown by contrasting the higher odometer reading prior to the sale to the defendant and the lower reading at the time the defendant sells the vehicle to a customer. 1 Am. Jur. 2d Proof of Facts § 6 (1974); Billings, Handling Automobile Warranty and Repossession Cases § 8.24 (1984). Proof of the earlier higher reading has come from testimony of a previous owner, applications for certificates of title on file in the motor vehicle department, testimony of a mechanic or service manager who recorded the mileage on a repair order, or any official records citing the vehicle’s odometer reading. 1 Am. Jur. 2d Proof of Fact, supra; Billings, supra; and see generally, Annotation Unlawful Tampering with Odometer, 76 A.L.R. 3d 981 (1977).
Here the state presented sufficient evidence to show the automobiles were under the dominion and control of appellant during the time the alteration took place. The state presented evidence regarding the four different cars that were purchased, which essentially related the sales transaction and the odometer reading on each car at the time of purchase. This testimony clearly established, with no dispute from appellant, what the lower reading was at the time of sale to appellant’s customers.
The state also presented sufficient evidence to show the cars were under the control of the appellant at the time the vehicles showed a higher reading on the odometer. The four vehicles in question had been purchased from the 166 Auto Auction. Mary Jo Henson, the office manager of the auction presented invoices for each of the four cars. Each invoice identified the car and indicated the mileage registered on the odometer at the time it was auctioned. In each case, there was a difference ranging from 25,000 to 45,000 miles on the readings at the time of auction and the later sale by the appellant. The name of the buyer on each invoice was Boren Motor Company. The state also introduced a privilege license purchased by appellant, showing that Bill Boren, Jr. was authorized to operate under the name Boren Motor Company.
Appellant concedes he operated as Boren Motor Company, but contends the identity of the auction buyer was inconclusive, as there was other evidence showing the cars had been purchased by Boren Wholesale Motors, a concern allegedly owned by his father, Bill Boren, Sr. Appellant refers us to a computer printout attached to each invoice, showing the buyer of each car was Boren Wholesale Motors and to testimony by Ms. Henson that both appellant and his father had been buyers at the auction in the past, and that she had no information as to the buyer on this occasion other than her records.
We are not persuaded by appellant’s argument. Ms. Henson said when questioned further about the discrepancy between the invoice and the printout, that the invoices were made out first while the printouts were made out later by different clerks. At that point she indicated there was less formality and less concern with the preciseness of the information: “Sometimes it’s just in a man’s name; it may not be in his company name, but it just may be made in his name.” From the evidence presented, it is a permissible inference that appellant had made the purchase as shown on the invoice, and because of the informality of further record keeping, a similarly named company was shown as the buyer on the printout. It is the jury’s sole prerogative to evaluate the conflicting evidence and to draw its own inferences, Williams v. State, 17 Ark. App. 53, 702 S.W.2d 825 (1986), and the jury may draw any reasonable inference from the evidence presented, Upton v. State, 257 Ark. 624, 516 S.W.2d 904 (1974). We find there was sufficient evidence to show appellant’s dominion and control over the vehicles during the time that the alteration of the odometers took place.
In addition to knowledge of the alterations, it was necessary for the state to show the vehicles were sold by appellant, without disclosing to the purchasers the alterations and tjie resultant lower mileage. The purchasers of the cars testified that while appellant had given them a completed disclosure form, there was no other attempt by him to disclose the alteration. In fact, he gave verbal reassurances to two of the customers that the odometers were correct to the best of his knowledge. The disclosure form, however, far from disclosing any alterations, indicated the opposite and there is no way we can find from th? form that appellant had disclosed the required information.
Appellant had checked two statements on the disclosure form. The first read: “I hereby certify that the odometer of said vehicle was not altered, set back, or disconnected while in my possession, and I have no knowledge of anyone else doing so.” This statement is clearly the antithesis of disclosing that there had been an alteration of the odometer.
The second statement checked by appellant stated: “I certify that to the best of my knowledge, the odometer reading as stated above is not the actual mileage of the vehicle described below and should not be relied upon.” Even considering this statement standing on its own, appellant has not given the required disclosure. This statement does not reveal that the reading is actually lower than what has been driven, but only that it is inaccurate. To merely say that the mileage is inaccurate is an ambiguous statement at best and could refer to any number of circumstances. It certainly does not equate to a disclosure that the odometer has been altered so as to reflect a lower mileage than the car has actually been driven. The statement not only misstates the facts as appellant knows them to be, but it deprives the customer of essential information and misleads him or her as to the true circumstances.
A similar situation was considered in Ryan v. Edwards, 592 F.2d 756 (4th Cir. 1979). In that case the court was reviewing the effect of a partial and misleading disclosure, analogous to those in this case. Under 15 U.S.C. § 1988 (the federal odometer disclosure statute) a disclosure must be made that “the actual mileage is unknown, if the odometer reading is known to the transferor to be different from the number of miles the vehicle actually traveled.” In Ryan it was shown that the odometer had “turned over” after 99,000 miles so that the odometer reading was not an accurate reflection of the miles actually traveled, and this fact was known by the defendant. The form used by the defendant to make the disclosure provided a blank on which to record the odometer reading and a second blank on which to record the vehicle’s total cumulative miles if over 100,000. The defendant filled in the low figure the car currently registered in the first blank, left the second blank empty and checked a box indicating that the true mileage was unknown. The defendant told the buyer that the car was a low mileage car but the odometer had been broken for a period of time and another 20,000 miles should be added to what the odometer registered to get an approximate reading of the actual mileage. The court found that the disclosure provisions had been violated and stated:
When a transferor who knows that an odometer has “turned over” merely records the numbers appearing on the odometer and certifies that the true mileage is unknown, the consumer is not simply deprived of accurate mileage information; he is actually misled by the form itself. We cannot believe that Congress intended to enact a statute requiring that consumers be given false or misleading information.
See also Suits v. Little Motor Co., 642 F.2d 1883 (5th Cir. 1981).
Similarly, the evidence in this case showed that appellant had knowledge of the former higher readings and that he had altered the odometer to a lower reading. Yet his disclosure form indicated only that the mileage was not accurate. This disclosure not only deprived his customers of the odometer readings prior to alteration but misled them as to the facts as they actually were.
When we also consider the other statement checked on the form — that there had been no alteration of the odometers — the misleading character of the disclosure document becomes overwhelmingly predominant. If appellant were attempting to neutralize or qualify the false statement as to the alterations, by the second statement of inaccuracy, he has failed. When the statement on inaccuracy is read in conjunction with the statement and there has been no alteration, it becomes even clearer that the customer is not only deprived of essential information, but is misled as to the true nature of the facts.
If we were to hold otherwise, a dealer could readily alter the odometers, warrant the opposite on the disclosure statement, and sell cars with impunity by checking a second ambiguous statement on the disclosure form. This cannot have been the intent underlying the required disclosure under state law, or the requirement of the federal disclosures. The purpose of disclosure of odometer information is to “enable the purchaser of a motor vehicle to know how many miles the vehicle has traveled, as a guide to its safety, reliability and value.” Ryan, supra. If the dealers can manipulate the disclosure forms to suit their purposes, the customers would be better off without the required disclosure.
Appellant has also taken issue with the federal disclosure form itself, claiming full compliance to the extent the form allows. His argument is not entirely clear, but we note first that appellant was not prosecuted for non-compliance with, or making false statements on, the required disclosure form, (Ark. Code Ann. § 4-90-206) (1987), and to that extent, the argument is irrelevant. However, he objects to the disclosure form because there was no provision to check if he knew the odometer had been altered. As the disclosure form is a required procedure, appellant contends he was forced to choose from the options available, none of which, he claims, would reflect the true circumstances of his case. We take the point to be that his statements on the form were not competent evidence and should not have been admitted. But no such argument was made in the trial court, in fact, appellant expressly allowed the introduction of the disclosure forms without objection. Any argument on that basis fails for lack of an objection in the trial court.
II
Appellant’s second argument claims error in the trial court’s denial of his motion for a new trial. The decision whether to grant a new trial rests with the sound discretion of the trial judge and will not be reversed in the absence of an abuse of discretion or manifest prejudice to the complaining party. Foster v. State, 294 Ark. 146, 741 S.W.2d 251 (1987); Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985).
Appellant claims first that a new trial was required on the basis of newly discovered evidence. But that is not a favored ground for a new trial, Vasquez, supra, and evidence which is merely cumulative will not suffice. Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984). Given that, we find no error here because appellant’s new evidence merely showed that Bill Boren, Sr. had purchased seventeen cars from the the 166 Auto Auction. The evidence at trial had already shown that Boren Sr. was a purchaser from the auction, and the “newly discovered evidence” only added to that fact and shed no additional light on the four cars in question at the trial.
Appellant also claims the verdict was against the evidence, Ark. Code Ann. § 16-89-130(5) (1987). We considered this point earlier and find no argument presented that alters our decision on the sufficiency of the evidence to support the verdict, and therefore find no error in the trial court’s denial of the new trial motion on this ground.
AFFIRMED.
Purtle, J., Dudley, J., and Newbern J., dissent.
While appellant does not raise this point, we note that in order to prove a defendant had knowledge of an odometer rollback, the state need not show any intent to defraud or any evil purpose. In a similar federal statute, the alteration of an odometer is a criminal offense if done “knowingly and willfully.” 15 U.S.C. 1984, 1990(C). This was interpreted to mean only an intentional violation of a known legal duty, and nothing more was required than to show the intent to do the act. United States v. Studna, 713 F.2d 416 (8th Cir. 1983) (“Alterations performed with innocent motives have the same capacity to mislead purchasers as those done with evil motives.”)
This conclusion is also reflected in general contract principles, that is, when an express warranty is negated or limited by other language, the disclaimer must fall away. See Walcott v. Steel, 246 Ark. 95, 436 S.W.2d 820 (1969); Ark. Code Ann. § 4-2-316(1) (1987). So in this case, when appellant attempted to certify that the odometer reading was accurate, and in the next breath attempted to qualify that claim by stating he had no knowledge of the actual mileage, the disclaimer was of no effect. | [
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Richard B. Adkisson, Chief Justice.
The Benton County Circuit Court refused to allow appellant, Billabong Products, Inc., to intervene in a lawsuit between appellee, Orange City Bank, and Lola and Donald Millar. On appeal, we affirm.
In April of 1980 Billabong, with Donald Millar acting as president, borrowed $10,000 from the Bank, giving the Bank a promissory note in exchange for the loan. The Millars, who own ninety percent of the Billabong stock, then personally guaranteed payment of any indebtedness of Billabong up to $25,000. Under the terms of the guaranty contract, if Billabong defaulted, the Bank could collect from the Millars without first proceeding against Billabong.
On August 12,1981, Billabong defaulted on the promissory note and the Bank filed suit against the Millars to collect under the guaranty contract. Billabong attempted to intervene, alleging that the $10,000 loan was only a part of a $25,000 line of unsecured credit to which the Bank had agreed. Billabong alleged that the Bank’s failure to loan the remaining $15,000 constituted breach of contract to loan money or, in the alternative, promissory deceit.
Appellant argues that it should have been allowed to intervene in the lawsuit between the Bank and the Millars under ARCP Rule 24 (a) (2) and (b) (2), Ark. Stat. Ann., Vol. 3A (Repl. 1979). This rule provides:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action:... (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. ... In exercising its discretion, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
To intervene as a matter of right under Rule 24 (a) (2) an applicant must show three things: (1) that he has a recognized interest in the subject matter of the primary litigation, (2) that his interest might be impaired by the disposition of the suit, and (3) that his interest is not adequately represented by existing parties. Edmondson v. State of Nebraska, 383 F.2d 123 (8th Cir. 1967). Here, Billabong has not claimed a sufficient interest relating to the transaction which is the subject of the suit between the Millars and the Bank. The transaction which is the subject of that action is a guaranty contract whereby the Millars guaranteed payment of a debt allegedly owed by Billabong. The transaction in Billabong’s motion to intervene is an alleged breach of contract to loan money or, in the alternative, an alleged promissory deceit.
Billabong is not so situated that disposition of the action between the Millars and the Bank may, as a practical matter, impair its ability to protect its claim against the Bank. Generally, if the one seeking intervention will be left with his right to pursue his own independent remedy against the parties, regardless of the outcome of the pending case, then he has no interest that needs protecting by intervention of right. Gregory v. Tench, 138 Ga. 219, 225 S.E.2d 753 (1976). No matter how the suit between the Millars and the Bank is decided, Billabong can still bring an action against the Bank for breach of contract to loan money or for promissory deceit in California. Since Billabong is not a party to the action, any judgment against the Millars would not be binding upon it under the principle of res judicata.
Billabong speculates that stare decisis will prevent it from prosecuting its claim in California and alleges that it is financially unable to bring the suit; however, those are insufficient reasons to allow intervention as a matter of right. Therefore, the trial court did not err in refusing to grant intervention under Rule 24 (a) (2).
The only remaining issue is whether or not permissive intervention should have been granted under Rule 24 (b). Permissive intervention is a matter resting within the sound discretion of the trial court and we will reverse only for abuse of that discretion. Here, the trial court denied permissive intervention after finding that there were no common questions of law or fact. We cannot say that the trial court abused its discretion in not allowing permissive intervention where the pleadings failed to establish any common questions between the guaranty and the alleged breach of contract to loan money or promissory deceit.
Affirmed.
Purtle, J., dissents. | [
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John I. Purtle, Justice.
This is an appeal from the Faulkner County Circuit Court wherein the court dismissed appellants’ counterclaim, refused to allow the pleadings to be amended, refused to allow evidence on certain elements of damages and entered a judgment in favor of the appellee. On appeal it is argued: (1) the trial court erred in denying appellants’ motion for directed verdict; (2) the trial court erred in precluding appellants from presenting evidence of formation and execution of the original contract; (3) the trial court erred in refusing to allow appellants to present evidence of consequential damges; (4) the trial court erred in awarding damages to appellee and finding the resale of the secured items was commercially reasonable; and, (5) the trial court erred in awarding attorney’s fees. We reject the first three arguments, accept a portion of the fourth and grant the fifth listed argument because attorney’s fees are not recoverable in this case.
In March of 1977 the appellants purchased a tractor, disc and grain cart from Nash Implement Company. Nash subsequently was taken over by Wheatley Implement Company. A financing statement and security agreement were executed in connection with the purchase of this equipment, the subject of this lawsuit. Nash sold the papers on this transaction to White Motor Credit Corporation. The assignment was with recourse. The appellants failed to make the annual payment due in February of 1978. In September of the same year White Motor Credit Corporation filed replevin to recover the equipment and to obtain a deficiency judgment. The appellants answered, objected to delivery of the chattels and denied that White was the proper party in interest. They alleged the implement company was the real party in interest. Appellants (then defendants) filed an amended answer and third-party complaint against Nash Implement Company (now Wheatley Implement Company). The third-party complaint alleged fraud in the inducement and execution of the contract, alteration of the contract, breach of warranty and other grounds. Wheatley filed ah answer and counterclaim against appellants. On February 12,1981, Wheatley took the deposition of appellant Stephen Harper. Some questions were not answered at that time and appellants’ attorney agreed to furnish additional information at a later date.
Wheatley propounded interrogatories to appellants on June 3,1981 and later filed an amended answer wherein they asserted waiver. White then moved to dismiss due to the fact that they were in bankruptcy. On July 20, 1981, Wheatley filed a motion to compel discovery. There was no response from the appellants. On July 27, 1981, a conference call was arranged between the trial judge and all the parties to the action. At this time the appellants mentioned that they were claiming the right to rescind the contract. July 28, 1981, before commencement of the trial, the court granted White’s motion to dismiss and specifically precluded defendants from putting on proof of consequential damages resulting from breach of warranty, fraud and from their failure to produce evidence requested in discovery. The court also precluded appellants from offering evidence on the formation of the contract. Thus the case went to trial with appellants and Wheatley being the only parties to the action. The only issue considered by the court was the commercial reasonableness of the resale of the equipment.
At trial, the proof indicated that the total balance due on the equipment was $23,543. The court allowed $568.80 attorney’s fees incurred by White at the time of the repossession, and found a deficiency, after sale of the chattels, in the amount of $7,561.80. The court allowed an additional attorney’s fee of $894.81, plus costs in the amount of $29.
The first point argued by appellants is that the court erroneously failed to grant a verdict in their favor based on the failure of proof that Wheatley was the real party in interest. Appellants’ pleadings alleged that Wheatley was the real party in interest and there were no amendments to allege that White was the real party in interest. The record contains no documentary proof that Wheatley assigned the . debt to White or that White reassigned it to Wheatley. The court allowed White to be dismissed from the proceedings without objection. The facts indicate that Wheatley took physical repossession of the collateral and subsequently sold it without advertising. In view of the fact that appellants insisted all along that Wheatley was the real party in interest, we do not think they were prejudiced by the court allowing White to be dismissed from the action.
The trial court refused to allow appellants to present evidence concerning the formation and execution of the contract. From the record it is not entirely clear why the court would not hear this evidence. The court did state that the elements of the claim against the appellee would not be allowed because the appellants failed to supply answers to questions and interrogatories. The court held that ARCP Rule 8 required the parties to clearly set forth the relief to which they believed they were entitled. The court also held that fair rental values could be claimed by the vendor in this case. It was further stated that since appellee was not prepared to go forward with the rental value witnesses, the court would dismiss the appellants’ cross-complaint. Appellants’ attorney then inquired what proof he would be allowed to put on regarding claims of defective condition of equipment, unauthorized remaking of the contract and proof of fraudulent misrepresentations. The court stated that all such claims would go out the window.
Appellants first failed to complete the answers to the questions presented on deposition of appellant Stephen Harper. Also, the appellants failed to answer the interrogatories of June 3,1981. A motion to compel discovery was filed on July 22, 1981. There was no response or request for extension of time made by appellee. The court took no action prior to the date of the trial at which time the appellants’ pleadings were struck. ARCP Rule 37 (d) states:
If a party... fails... (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories ... the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under (A), (B) and (C) of subdivision (b) (2) of this rule.
The sanctions stated in subparagraphs (B) and (C) of ARCP Rule 37 (b) (2) provide:
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
In view of the provisions of the foregoing rules the trial court had the discretion under the circumstances of this case to take the action it did in striking the appellants’ pleadings relating to the formation of the contract and consequential damages. This extraordinary remedy should be used sparingly and only when other measures fail because of the inherent danger of prejudice.
Appellants insist it was error for the trial court to preclude them from presenting evidence of consequential damages resulting from alleged breaches of warranties and fraudulent misrepresentation. This argument is addressed in the preceding section of this opinion. As to this argument the court made the following statement:
In the depositions taken in February, 1981, the Harpers failed to answer certain questions and promised to furnish information and answers to those questions and they have failed, refused, or neglected to do so until this present time.
That as a result of that, in the telephone conversation held the day before the trial, their cross-complaint has related to the answers that they failed to give and supply would not be allowed on the trial of the case set for today.
Appellants insist they did not fail to answer any question at the deposition. While this is true, they did promise to present certain requested material which was not available at the time of the depositions. This material was never furnished. Additionally, the appellants failed to answer the interrogatories which were submitted to them well in advance of the trial. Among the interrogatories were those requesting knowledge about the alleged breaches of contract and fraudulent acts. Also, the interrogatories requested the names of witnesses to be called. The interrogatories were relevant to the claim for incidental damages and the failure to furnish them or offer a reason why they were not furnished justified the court in striking this particular claim.
The fourth argument presented by the appellants is that the trial court erred in finding that the resale of the chattels was commercially reasonable. It is not seriously disputed that the appellee did not give notice of the sale of these repossessed items of property. The real issue on this point is whether the appellants were given proper credit for the proceeds of the sale. As to this particular point we must decide whether the appellants were given all the credits to which they were entitled or would have been entitled had the private sale been conducted according to law. Universal C.I.T. v. Rone, 248 Ark. 665, 453 S.W.2d 37 (1970).
The proof offered on the issue of commercial reasonableness of this sale was presented by Jerry Van, an employee of White Motor Credit Corporation; Verlon Spencer, manager of Wheatley Implement Company; and Ernest Loewer, farmer, and president of Wheatley Implement Company. It was Mr. Van’s opinion that the tractor was worth between $15,000 and $16,000. He stated that he had recieved a bid of $12,000 which he considered ridiculous. This witness professed to have no knowledge of the actual physical condition of the tractor at the time of the sale to another White dealer in Oklahoma. Mr. Spencer stated he tried to sell the Harper vehicle and talked to three different people about it. He received the bid of $12,000 from one of these people and he considered the price inadequate. He did express the opinion that the price ultimately received was the top price. He also stated that the grain cart was rusted out and was offered for sale for $300. He had no knowledge of the actual sale. The disc was still on hand, and he thought it had a value of $1,000. Witness Loewer testified that he did not know when the grain cart was sold but they had to do repair on it because it was rusted out. According to him, $300 was spent on repair and the cart sold for $700, leaving a net of $400 for the cart. Witness Loewer stated that he did not take part in the day-today operations of his company although he tried to keep up with the values of White equipment. He had no knowledge as to the value of the tractor when sold in September of 1979.
It was the duty of the creditor to prove the amount that should have been obtained had the sale been conducted according to the law. Universal C.I.T. v. Rone, supra. In the present case the ruling of the court prevented the appellants from introducing evidence of the commercially reasonable value of the chattels. The Uniform Commercial Code states that the fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. Ark. Stat. Ann. § 85-9-507 (2) (Supp. 1981). The debtor has a right under the code to recover from the secured party any loss caused by failure of the secured party to comply with the provisions of the code. Ark. Stat. Ann. § 85-9-207 (3) (Add. 1961).
In view of the fact that the debtor was prevented from presenting evidence of the commercially reasonable value of the equipment at the time of the sale, we think it was prejudicial. There is no doubt that the secured party is not absolutely required to proceed by public sale. Carter v. Ryburn Ford Sales, Inc., 248 Ark. 236, 451 S.W.2d 199 (1970). However, when the sale is conducted in a manner not in accordance with the provisions of the code, the secured party does so at his own risk. In any event, the secured party would be entitled to keep the proceeds received as a result of the sale even though they were inadequate. However, under such condition, the debtor would not owe the difference between the price received and the commercially reasonable value of the property. The only evidence of the value of the tractor was by the employee who repossessed the tractor for White. We think this is insufficient.
Finally, appellant argues that the court erred in allowing attorney’s fees. We agree with this argument and hold that the court erred in allowing attorney’s fees. In Brady v. Alken, Inc., 273 Ark. 147, 617 S.W.2d 358 (1981), we held that it was the settled law in Arkansas that attorney’s fees are allowed only by statute. The statute in question here (Ark. Stat. Ann. § 68-919 [Repl. 1979]) provides for attorney’s fees only on promissory notes.
The contract and security agreement, in fine print on the back side of the contract, allowed attorney’s fees to the “extent permitted by law.” The Uniform Commercial Code provides for payment of reasonable attorney’s fees in cases “not prohibited by law.” It is obvious that the code attempted to allow attorney’s fees in those cases where it was not prohibited by law which standard is substantially different from allowing attorney’s fees to the extent permitted by law. We have previously held that attorney’s fees are not allowed except when expressly provided for by statute. Attorney’s fees were disallowed in an action based on breach of contract in the case of Romer v. Leyner, 224 Ark. 884, 277 S.W.2d 66 (1955). In Romer, it was stated: “In a suit of this kind there is no provision.under the statutes or decisions of this state to allow attorney fees or miscellaneous expenses as an element of damages.” In Romer, we quoted with approval language from White River, Lonoke & Western Ry. Co. v. Star Ranch & Land Co., 77 Ark. 128, 91 S.W. 14 (1905), which said: “Attorney’s fees are not ordinarily held to be an element of damages which may be recovered for breaches of contract.” We further quoted from American Exchange Trust Company v. Trumann Special School District, 183 Ark. 1041, 40 S.W.2d 770 (1931), as follows: “Attorney’s fees cannot be allowed as costs in suits, except as provided by statute, the same being regarded as a provision for a penalty and not to be enforced in the State courts.” We followed the reasoning in these two cases in Brady v. Alken, Inc., supra. In Brady, we held that in the absence of a statute allowing attorney’s fees it was error to allow such fees.
Since the trial court erred in prohibiting the appellant from producing evidence as to the commercial reasonableness of the sale of the property and in awarding an attorney’s fee, we must reverse and remand for a new trial.
Reversed and remanded. | [
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Mehafey, J.
The appellant was indicted for the killing of David Hodges. He was charged with murder in the first degree; he was convicted of murder in the second degree and his punishment fixed at imprisonment in the penitentiary for fifteen years. The deceased and the appellant were competitors in the jewelry business in Gurdon, Arkansas, and were not on friendly terms. The appellant was local watch inspector for the Missouri Pacific Railway 'Company at Gurdon and had been for several years. There was apparently some dissatisfaction among the railroad men, and they wanted the deceased to inspect their watches instead of the appellant. On September 21, 1929, about 10 o’clock at night, the deceased went into the cafe of the Commercial Hotel at Gurdon with Hugh Campbell to get a cup of coif ee. While they were in the cafe, the appellant and J. D. MeGedee came in and ordered something to eat. It is claimed by the Gtate that when Hodges started out of the cafe appellant shot him. Appellant, however, claims that Hodges was coming* towards him with a chair. When the deceased was shot, he ran out of the cafe, and fell after going* a short distance. An ambulance was called and Hodges was taken to the hospital in Prescott, but died from the effects of the wound about an hour after reaching the hospital. The physicians and undertaker testified about the wound, describing* it and the physicians testified that this caused Hodges’ death.
Herschel Kitchens, a locomotive engineer testified in substance that he had known Hodges all his life, went to the cafe on the night of the killing, saw Hodges there. Rushing and some other gentleman were sitting down at the counter, and saw deceased come towards the center of the room and sit down. Appellant was at the far end of the room next to the kitchen. Witness turned to the counter, and after a. few seconds something attracted his attention, and he saw Hodges standing with his hand on the back of a chair and saw Rushing shoot. When he looked again Hodges was running; heard Rushing say:
“He got what he had been wanting for a long time.” Witness was a little hard of hearing, and they were the only words he heard- spoken. Deceased was facing towards Rushing with his left, hand on the chair, but did not see his right hand.
The undertaker testified that while deceased was lying on the sidewalk, his father came up and asked what happened. Deceased replied: ‘ ‘ He shot me; I was in the -cafe for a cup of coffee. Rushing and a tall salesman from St. Louis came in. He was cursing me. When I started out, Rushing’ said, ‘There goes the low down S. of B.’ I turned round to look, and he shot me.”
Witness 'Callaway testified in substance that he took his watch one time to appellant.to have it repaired, and that appellant kept it some time and returned it in the same condition; he then took it to deceased, who repaired it. This witness testified aibout a class meeting of the railroad men several months before the killing when they voted to change watch inspectors and give the position to Hodges. It was the duty of appellant to inspect watches for railroad men.
Herman Osborn saw deceased fall to the sidewalk after being shot, and heard him say he was going to die. Deceased said he was in there drinking a cup of coffee and Rushing turned around to the fellow who was with him and said: “There goes the Gr. D. dirty scab selling watches at $2.50 and $5 profit.” He said, “Now look here,” and Rushing shook his finger and shot him.
Lester 'Stewart testified in substance that he saw deceased run by his store hollering and was stopped and said, “Boys, you will never see me alive again. I believe I am going to die. I was in the Commercial Cafe and drank a cup of coffee or sandwich or something and started out.” Rushing said, “There goes that crooked S. of B. that sells watches at $1.50' profit.” This witness said that deceased said he turned around and said, “Look here, Rushing,” and when he'did that, Rushing shot him.
R. M. Davidson, a conductor, knew both appellant and deceased, and some months before the killing heard Rushing say ‘ ‘ That damned fellow ought to be killed. ’ ’
Dr. McLain, a witness for defendant, testified in substance that he was called to treat the deceased about ten minutes after the shooting, and deceased’s father came up and asked Hodges a question, and Hodges said he had been selling watches at $1 profit, and Rushing did not like it or something like that and he had stood that kind of talk about as long as he could. He testified that Hodges did not say he was going to die; that he made no such statement loud enough for witness to hear.
Dr. Epperson, witness for appellant, testified in substance that he was acquainted with both appellant and deceased. Deceased was a large man weighing something over two hundred pounds. He reached Hodges shortly aJfter he was shot while he was lying on the sidewalk. When deceased’s father asked who shot him and what for, he replied: “Because I was selling goods cheaper than he could.” Witness said that Rushing did not say, “There goes the G-. D. S. of B.” while he was there.
Justis Yates testified on behalf of appellant, that he was constable of the township, knew both parties, had a conversation with deceased ten days or two weeks before he was killed. Deceased said he had been advised to let Rushing go so far with his talk and then knock him to the south when he was traveling north.
J. T. Watson testified in substance that he was train-master for the Missouri Pacific Railway Company, had been with the railroad company for twenty-five years. Cfurdon was formerly his home. Had known appellant and deceased about ten years. Some thirty days- before the killing Hodges told witness that he was going to have the job if he had to kill. This was with reference to Hodges trying to get Rushing’s place as time-inspector, and he said, “I will kill him,” or “if I have to kill him.” Witness told Rushing of the threats sometime later. Hodges had been trying to get witness ’ help to get Rushing’s place.
J. W. McDaniels testified in substance that he was night clerk at the Commercial Hotel; had known Hodges all his life, knew Rushing when he saw him. They both ate at the cafe. Was present on the night of the killing. Rushing and another man went into the cafe and sat on the stools near the back end of the lunch counter. The room was about twenty-five feet long. Hodges was sitting down when Rushing came in. Rushing and the man with him gave an order, and the witness went to the kitchen and prepared the order and was returning with it when he saw Hodges advance with a chair and Rushing whirled off the stool and shot him. Hodges carried the chair about half way out of the cafe, set it down and ran; had a plain view of Hodges; he was only about six feet from me when he was shot; did not know how he was handling the chair, either at his side or over his shoulder, could not say which, he was advancing on Rushing; did not know whether he was going slow or running or whether he was in the act of striking when shot, he was facing towards-Rushing, had a chair in his hands but not directly in front of him. After the shooting was over, Rushing went back and finished his tomatoes. Witness denied that he talked to Burroughs and Rudolph the next morning, telling them first that he could not see it at all and later that he did see it and denied talking to them at all. Witness did not hear a word spoken before the shooting.
J. D. McG-edee was acquainted with Rushing but not with the deceased; walked with Rushing to the hotel; after sitting on stools near the back end of the counter, noticed the man standing in front of the counter next to the cash register. Thought the man was looking at him1, and at the same time Rushing was saying something to witness which he did not understand. The man in front put his hand in his pocket, whether it contained change or not witness did not know, but he stood there a few seconds and then ran or walked towards witness and appellant. When he- got about half way between witness and the far end of the counter, he picked up a chair and advanced on witness six or' eight feet where he was shot. He was holding the chair up in front in a striking mood; could not hear what he said. Did not hear Rushing or understand anything- he said before the shooting.
Appellant testified that he had lived at Gu-rdon for the past thirteen or fourteen years, was a jeweler and local time inspector for the Missouri Pacific Railway Company at Gordon for the past six years; had known deceased for eight or nine years; were not considered good friends, but nothing unusual but competitors in business; had heard a good many threats. Deceased was a large man weighing 225 pounds and appellant weighs 114 to' 117 pounds; carries a good line of goods and at times has to look out to keep from being robbed, and when he has to carry jewelry from his place of business to his room nearly always goes armed for his own protection; did not go to the hotel to meet'deceased nor -with any intention whatever of doing him bodily harm or to kill him; went to the hotel with McGedee, and, when'their lunch was brought in, something attracted his attention; glanced up and saw Hodges advancing with a chair, coming at a fast stride, saying; “Rushing, I have taken all I want to,” or •something like that. About that time I jumped up and shot. I was .afraid he was going to kill me. I shot to save my own life; did not shoot out of a spirit of revenge; denies that he ever told David Hodges he should be killed or that he would ldll( him; denied that he had ever made any threats. He thought Hodg*es was going to kill him, and he, started on him with a chair. Hodges was within seven or eight feet when he was shot; could not have stopped Hodges without shooting him; denies that he said anything that he remembers to the salesman; denies that he knew anything about the class meeting or wanting to change inspector.
R. E. Burroughs testified that, he knew McDaniels who testified for appellant, and the morning after - the shooting McDaniels said he did not see it. Later McDan- ' iels said that when he came out .of the kitchen Hodges was standing with his hand on the hack of a chair, and he heard some one say that Hodges said he was just trying to make an honest living, and Rushing whipped out his gun and shot him. Mr. Rudolph was present, when this was said.
Rudolph testified that witness McDaniels talked to him on the morning after the killing and said that he was in the kitchen and did not know how it occurred.
At the time that witness Oallaway testified about the class meeting and the resolutions, the prosecuting attorney stated-to the court that he would offer evidence showing that Rushing knew about this or connect Rushing with it, but when that proof was not offered and before the case was submitted to the jury, the court withdrew this testimony and told the jury they could not consider it for any purpose. The court had already stated that it could be introduced for one purpose only, and for that purpose on condition that the State showed it was communicated to Rushing.
Appellant first contends that the ease should be reversed because witness P. E. Callaway was permitted to testify about a meeting of railroad men and to state what took place at said meeting. The appellant had been watch inspector for the Missouri Pacific at Gurdon for several years, and at the meeting testified about 'it was decided to give it to Mr. Hodges, the deceased. The evidence did not show that appellant was ever informed of the meeting or what took place there and therefore was not competent to-prove motive nor for any purpose. The court stated to the State’s attorney, when the testimony was offered, that it must be shown that this information was conveyed to the defendant, and the attorney stated that he would undertake to show the connection. The court then said: “Now, gentlemen, I will say to the jury this: That that testimony will be admitted for one purpose and one purpose only. I don’t know whether it goes to show, or will go to show, that whatever happened at that meeting, the information or action of the meeting was conveyed to the defendant or not, but the only purpose is to show, if it does show, and that’s a question for the jury, whether it raised the animosity or anger of the defendant, and whether or not he was seeking revenge on account of it.” The State did not show that appellant received any information about the meeting or what took place there. After-wards the court said to the jury: “Gentlemen of the jury, on yesterday there was some testimony introduced relative to a meeting of some of the railroad men down at Gurdon in which it was claimed that a resolution was passed to take the watch inspection away from the defendant and give it to the deceased, Hodges. Now, gentlemen, I let that testimony go to the jury for the time, but the court has determined that that is not proper for your consideration. So you will not consider anything — in considering your verdict you will not consider anything with reference to that meeting where that matter was discussed, or anything about it. I am withdrawing that from the jury, and you have no right to> consider that at all because it is not proper for your consideration.” It was a matter of discretion for the court to permit the prosecuting attorney to proceed with the testimony above mentioned on condition that proof would be subsequently introduced to show that appellant had received information as to the meeting and what took place there. Housley v. State, 143 Ark. 425, 220 S. W. 460 ; Easter v. State, 96 Ark. 629, 132 S. W. 924.
The instruction of the court that the testimony was not proper and that it should not be considered by them cured the error and removed any possible prejudice against the appellant that may have been created in the minds of the jury by such testimony. Wells v. State, 151 Ark. 221, 235 S. W. 798 ; Johnson v. State, 60 Ark. 45, 28 S. W. 792 ; Carr v. State, 43 Ark. 99 ; Holt v. State, 91 Ark. 576, 121 S. W. 1072 ; Pitman v. State, 51 Fla. 94, 41 So. 385, 8 L. R. A. (N. S.) 509 ; Wickham v. People, 41 Colo. 345, 93 Pac. 478.
If the connection had been made as the prosecuting attorney told the court it would, the testimony would have been competent. The trial court necessarily has large discretion in the manner and order of admitting testimony, and when it appeared that the meeting and statements there made had not been communicated to appellant, the court withdrew the evidence from the consideration of the jury and instructed them not to consider it. The jury is assumed to be composed of men of intelligence, and they could not have misunderstood the instruction of the court.
The appellant next contends that the court erred in giving' instruction No. 14. The objection urged to .this instruction is that it 'does not tell the jury that a reasonable doubt may arise out of the lack of evidence. This instruction, however, is followed by No. 23, which the court gave, and it contains the statement that the doubt may arise out of the lack of evidence. The appellant contends that the court erred in refusing to give certain instructions requested by him, but they were all covered by instructions given by the court. After a careful examination of all the instructions we are of opinion that the court fully and correctly instructed the jury, and the evidence is sufficient to sustain the verdict. The judgment is affirmed. | [
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George Rose Smith, Justice.
Williams was convicted of having committed capital felony murder on February 23, 1981, in that he fatally stabbed Sidney Riley after raping her. In appealing from the ensuing sentence to life imprisonment without parole Williams contends primarily (1) that the trial judge erred in finding his confession to have been voluntary without first requiring the State to produce all witnesses material to the issue of voluntariness and (2) that the confession and certain clothing and other articles seized by the police should have been excluded as the fruits of a warrantless arrest made without probable cause.
Testimony taken at the hearing on the motions to suppress is pertinent to both contentions. The murder occurred on February 23 in the living room of the victim’s home near Antoine, but was not discovered until two days later. Williams was living with his sister and her husband in the next house down the road, some 300 yards away. Because of that proximity Sheriff Baker, State Police Office Ursery, and Prosecuting Attorney Arnold went out to interview Williams at about 4:00 p.m. on February 26, the day after the victim’s body had been found at her home.
When the three men walked up to the house, Williams came across the yard to meet them. He recognized Arnold, who had represented him when he was convicted of manslaughter in 1967. Out of Williams’s hearing the officers commented on the resemblance between Williams’s toboggan cap and certain red fuzz found on a blanket under the victim’s body when the crime was discovered. Arnold told them to warn Williams of his rights and to check with the police laboratory at Little Rock about the red fuzz.
Officer Ursery warned Williams before he was questioned. Williams first said he had not known the victim, but he then said he had seen her working in her yard a few days earlier. The four men walked to the victim’s house, where the officers’ vehicle was parked. While the sheriff began checking with the laboratory, Officer Ursery again warned Williams of his rights. Williams said that on the earlier day he had walked up the road, had seen Ms. Riley working in her garden, and had carried to her some mail that he took from her mail box. He tried to explain that he was the brother of her neighbor, but she became frightened, ran into the house, and threatened to call the police. He followed her into the kitchen, but did not go beyond that point into the living room.
Officer Ursery then asked Williams if he would go to Hope and take a polygraph examination to show that he only went into the kitchen area. Williams said he would. Sheriff Baker and Officer Ursery then drove Williams to the state police office at Hope. There Ursery used a printed waiver to again warn Williams of his rights while they waited a few minutes for the polygraph examiner to arrive. When he got there Williams refused to take the test. Another state police officer, Finis Duvall, then told Williams they needed to take his clothes for examination. Williams said he would tell the officers what they wanted to know. After interrogation he signed a highly damaging statement in which he admitted having had intercourse with the victim and having caused her death. At the trial Officer Ursery testified that Williams had been in custody since they left the scene of the crime, but he was not told that he was under arrest until after he gave the statement.
Probable cause for an arrest existed when Sheriff Baker, Officer Ursery, and Williams left the scene to drive to Hope. Williams had first denied knowing the victim, but changed his story. His account of having removed mail from her mail box to take it to her was suspect, for such actions would hardly be performed with an innocent motive by a stranger. Williams admitted that the woman was frightened, that she ran to the house with a threat to call the police, and that he followed her into the house. His assertion that he stopped short of going into the living room could indicate guilty knowledge of where the crime occurred. Both officers attached significance to the red fuzz. The proof supplied the recognized elements of probable cause. See Sanders v. State, 259 Ark. 329, 334, 532 S.W.2d 752 (1976).
It was not essential, as the appellant argues, for the trial court to pinpoint the moment of arrest. The officers were not required to make an arrest when they first had probable cause to do so. State v. Coleman, 412 So.2d 532 (La., 1982). Although A.R.Cr.P. Rule 4.4 requires that the officer inform the arrested person that he is under arrest, such formal words are not essential to an arrest. Ark. Stat. Ann. § 43-412 (Repl. 1977); Logan v. State, 264 Ark. 920, 576 S.W.2d 203 (1979); McDonald v. State, 253 Ark. 812, 491 S.W.2d 36 (1973). Sheriff Baker testified that Williams was arrested at the scene. Officer Ursery testified that Williams was under restraint continuously after they left the scene to go to Hope. The trial court could reasonably conclude that the officers, having probable cause, deferred the arrest to permit Williams to clear himself by a polygraph examination. When he refused to do so, the arrest existed in fact without a formal statement. Hence the seizure of the clothing and the taking of the statement followed a lawful arrest and were not tainted.
The court was wrong, however, in not requiring the State to produce all material witnesses to the confession or account for its failure to do so. At the suppression hearing it was shown by the State that Officers Ursery and Duvall were present when Williams gave his statement. They said that Williams had not asked for an attorney. Williams, however, then denied their assertions and testified that he also told Officer Reed, and perhaps Sheriff Baker as well, that he would not make a statement without a lawyer. Defense counsel, in asking that Reed and Baker be produced, cited our holding in Earl v. State, 272 Ark. 5, 612 S.W.2d 98(1981), where we said that the State fails to sustain its burden of proving voluntariness when it does not produce all the material witnesses or account for their absence. Under that decision and the prior cases that were cited, the error was prejudicial and requires a new trial. It is immaterial that Baker and Reed later testified at the trial that Williams did not ask for an attorney, for the statute requires the trial judge to determine voluntariness by hearing evidence out of the presence of the jury. Ark. Stat. Ann. § 43-2105.
The court properly refused to disqualify Arnold as the prosecutor merely because he had represented Williams when he was convicted in 1967. The motion to disqualify asserted that if the manslaughter conviction were used as an aggravating circumstance, Arnold might be in a position to use confidential information to the detriment of his former client. That possibility, however, was eliminated by Arnold’s assurance that he would only use the proof of the conviction. That was done; so there is no indication of prejudice.
Since the jury was apparently selected at random, there is no proof of a systematic exclusion of blacks. We need not speculate about the possible proof upon a retrial. The court properly refused to quash the jury panel merely because a clerical employee who assisted in preparing the jury list had not taken the oath required by Ark. Stat. Ann. § 39-205.1 (Supp. 1981). The statute is not mandatory, and no question about the integrity of the list has been shown. See Huckaby v. State, 262 Ark. 413,557 S.W.2d 875 (1977). Finally, we have repeatedly rejected the argument that a “death-qualified” jury gives rise to prejudicial error. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982).
Reversed and remanded.
Hickman, J., not participating.
Supplemental Opinion on Denial of Rehearing delivered January 10, 1983 | [
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'Smith, J.
Appellant alleged that he was the owner of certain lands forming an island in the Arkansas River near the city of Van Bnren, which had been damaged by the operations of appellee company in removing sand and gravel from the river bed just above appellant’s lands, thereby changing the course of the river and causing appellant’s lands to cave into the river and to be washed away, and at the trial from which this appeal comes offered testimony to that effect.
It was admitted at the trial that the lands involved in this suit are the same lands which were involved in the case of Jones v. Hunter, 126 Ark. 300, 189 S. W. 1068. In that case, as appears from the opinion, the appellant there, who' is also the appellant here, had sought to recover possession of the island. The suit was 'brought .under the authority of act of April 26,1901 (acts of 1901, page 197), which appears as § 6783, G. & M. Digest. This act provides that “all land which has formed or may hereafter form in the navigable waters in this State and within the original boundaries of a former owner of land upon such stream, shall belong to and the title thereto shall vest in such former owner, his heirs or^assigns, or in whoever may have lawfully succeeded to the right of such former owner therein.” The appellant—the plaintiff in that case—was unsuccessful in his attempt to show that the land—the island—there sued for had formed within his original boundaries. Thereafter he bought the title of his adversaries, Hunter et al., and at the trial from which this appeal comes he exhibited their, deeds to him as the source of his title to the lands which he alleged had 'been damaged. He had no other title. It was shown that he and his predecessors in title had been in possession of the island for more than seven years, and had paid taxes continuously for more than that period.
The trial court held that this was not a sufficient showing of title to enable appellant to maintain this suit for damages, and this appeal questions the correctness of that holding.
We think the trial court correctly held that plaintiff —appellant—had not shown a right to recover damages to the island.
Act '282 of the Acts of 1917 (Acts 1917, vol. 2, page 1468),• which appears as §§ 6796-6802, O. & M. Digest, was an act to provide for the sale and disposition of islands which had formed or which may hereafter form in the navigable rivers and streams of this State.
•Section 1 of this act, which appears as § 6796, C. & M. Digest, provides that all such islands formed subsequent to the admission of the State into the Union shall be the property of the State, hut be subject to sale in the manner provided by the act. The act provided the manner of sale, and gave bona fide claimants a preferential right to purchase at any time within one year from the date of the passage of the act. It was not contended that this right had been exercised. Underdown v. Desha, 142 Ark. 258, 219 S. W. 19 ; Ferguson v. Hudson, 143 Ark. 187, 220 S. W. 306 ; Lewis v. Owen, 146 Ark. 469, 225 S. W. 648 ; Wilson v. Guthrie, 155 Ark. 315, 244 S. W. 338 ; Reed v. Wilson, 163 Ark. 520, 260 S. W. 438 ; Kissell v. Stephens, 164 Ark. 195, 261 S. W. 299 ; Mills v. Protho, 143 Ark. 117, 219 S. W. 1017 ; State v. Cissna, 168 Ark. 565, 270 S. W. 963.
The title to the lands alleged to have been damaged was therefore in the State of Arkansas, and appellant has not, through his own possession and that of his grantors, acquired the title to the island, because they have not pursued the method of acquiring the title of the State which the act of 1917 provides. The State’s title cannot be acquired by adverse possession. Brinneman v. Scholem, 95 Ark. 65, 128 S. W. 584 ; § 443, vol. 2 C. J., chapter, Adverse Possession, page 213.
As there is no showing of title, except such as might arise out of actual possession, the judgment of the court below was correct, and must be affirmed, and it is so ordered. | [
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David Newbern, Justice.
This is an attorney malpractice case. The trial court granted a judgment on the pleadings in favor of attorney Jerry Ryan after concluding the pleadings showed the three-year statute of limitations, Ark. Code Ann. § 16-56-105 (1987), had run. The appellant, Richard A. Stroud, contends the pleadings did not show that the statute of limitations had run. We agree with the appellant’s argument, and therefore the case is reversed and remanded.
The complaint, as amended, alleged the following: Ryan negligently failed to make Stroud’s response to a writ of garnishment served on Stroud on September 27, 1982, and given by Stroud to Ryan that same day. Stroud was held liable on the garnishment by default judgment for $22,674.01 on November 3, 1982. Upon Ryan’s motion on behalf of Stroud, the default judgment was set aside “nunc pro tunc” by an order of December 4, 1984. The order setting aside the default judgment was reversed by the court of appeals on February 19, 1986. The judgment creditor thereafter sought execution of the judgment against Stroud in the amount of $31,988.45 which included the principal judgment plus interest. Ryan represented Stroud on this as well as other matters until March, 1986. Ryan repeatedly assured Stroud that he need not worry about the judgment because, even if they did not succeed in overcoming it legally, Ryan’s malpractice insurance would pay it. Ryan did not disclose that the statute of limitations might pose a bar to Stroud’s attempted recovery from Ryan.
Ryan’s answer asserted the statute of limitations as a defense. The court’s order granting judgment on the pleadings found the statute of limitations barred the complaint, citing decisions of this court and one federal court decision holding that, according to Arkansas law, the statute begins to run when the negligent act occurs. Rhoades v. Simms, 286 Ark. 349, 692 S.W.2d 750 (1985); Riggs v. Thomas, 283 Ark. 148, 671 S.W.2d 756 (1984); Cotton v. Mosele, 738 F.2d 338 (8th Cir. 1984). The court concluded that, because the period does not begin to run from the time the act of negligence is discovered and, in any event, there was no concealment of the negligence in this case, the three-year period had elapsed no later than November 3, 1985. The complaint in this case was filed December 18, 1986.
While we have held, in the Rhodes and Riggs cases cited above, that the statute of limitations begins to run when the act of malpractice occurs, we have not previously considered a claim that the running of the statute is suspended during a period when the party alleging malpractice could not have brought his claim because, in essence, the injury ceased for a time to exist.
As a general rule, the running of a statute of limitations is tolled during the time a putative plaintiff is prevented from bringing the action to which the statute of limitations applies. Fidelity Union Cas. Co. v. Texas Power & Light Co., 35 S.W.2d 782 (Tex. Civ. App. 1931); Broadfoot v. City of Fayetteville, 124 N.C. 478, 32 S.E. 804 (1899). See also Guaranty Trust v. United States, 304 U.S. 126 (1938); Amy v. Watertown, 130 U.S. 320 (1899).
We have no hesitation in holding that the running of the statute of limitations was tolled while the default judgment was set aside. During that time, although the alleged negligent act had occurred, Stroud had no claim against Ryan, as he could have shown no injury. Stroud could not have brought his action against Ryan between December 4,1984, and February 19,1986. Stroud lost his right to respond on the merits to the garnishment writ when Ryan allegedly failed to answer, no later than 20 days after service on September 27,1982. Stroud’s complaint against Ryan was filed December 18,1986, or approximately four years and 62 days from the earliest point at which Stroud’s claim could have arisen. Subtracting the period during which the statute was tolled, which was one year and 77 days, less than three years had passed.
Reversed and remanded. | [
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Mehaffy, J.
This suit was begun by appellee against appellant to recover damages for killing a bird dog. The dog was killed in the nighttime, and no one saw it killed. The evidence, however, shows that the dog was found on the track between the rails, mutilated, one foot cut off and its head and body injured. One witness said it looked as if the head of the dog was partly cut off and the body had been dragged five or six feet in an easterly direction. There was blood on the ties, the track was straight for half a mile or more on each side of the place where the dog was killed. There was blood and gravel on the track which showed where the dog had been dragged. Several witnesses testified as to the value of the dog, but there is no claim that the verdict is excessive, and it is not necessary to set out the evidence on the question of value.
The following stipulation was introduced in evidence: “It is hereby stipulated and agreed by and between Giles Dearing, attorney for the plaintiff herein, and 'O. E. Daggett, attorney for the defendant herein, that on the night of December 15, 19i29, the defendant company operated ten trains through the town of Wynne, Arkansas; that, if called to testify herein, the firemen and engineers on each of said trains so operated through the town of Wynne, Arkansas, on said date, would testify that at all times between a point east of the coal chute on the' right-of-way of the defendant company in the town of Wynne and a street crossing thereon known locally as Killough iCrossing, in the town off Wynne, each and all of said firemen and engineers were maintaining a lookout, as required by the statute of Arkansas, for persons and property on or adjacent to the track of said company; that neither of said firemen or engineers discovered a dog on the track at the place hereinbefore indicated, and have no knowledge of the train so operated by them, and each of them, having struck a dog.’’
Several instructions were given over the objection of appellant, and instructions requested by appellant were refused. It is not necessary to set out these instructions. The main objection to the court’s action in giving’ and refusing instructions was based on appellant’s contention that, in order to find for appellee, the jury had to presume in the first place that the dog was' killed by the operation of the train, and on that presumption base the presumption of negligence. The jury did not have to presume that the animal was killed by the operation of a train. This however was proved by circumstantial evidence. Before the jury would have been justified in finding for the appellee, it must have found as a fact that the dog was killed by a train. The evidence must have shown this. It was not necessary to show by direct evidence, but the fact might be shown by circumstantial evidence. A fact may be as thoroughly established by circumstances as by direct evidence.
“A well connected train of circumstances is as cogent of the existence of a fact as any array of direct evidence, and frequently outweighs opposite direct testimony.” 23 C. J., p. 48.
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. & 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.
Of course the circumstances must agree with and support the hypothesis which they are adduced to prove, ■and, where circumstantial evidence is* relied upon, the circumstances themselves must be proved. Under the evidence in this case the jury were justified in finding that the dog was killed in the operation of a train. It is argued that the circumstances merely give rise to a presumption or inference that the dog was killed by the operation of a train, and that the jury, in order to find for the appellee, had to base another presumption on this presumption, that is the presumption that the appellant was guilty of negligence. We do not agree with appellant in this contention. In the first place, we think the proof showed that the dog was killed by the operation of the train, and the jury necessarily so found. When the jury found that, it did not have to indulge in any presumption at all. The laws presumes that, if the animal was killed by the operation of a train, it was negligently killed. This is not a presumption of the .jury, but it is a presumption created by statute. Appellant cites and relies on the case of Mo. Pac. Rd. Co. v. Forsee, 181 Ark. 471, 26 S. W. (2d) 108. In that case the proof of the killing was practically the same as in the instant case, and we said: “If the dog was killed by the operation of the train as the jury found, this made a prima facie case, and was sufficient to take the case to the jury unless the railroad company offered some evidence that it was at the time in the exercise of care, and did not negligently kill the dog.” In the1- instant case, the only evidence offered by the appellant was the stipulation set out above, and this only shows that the engineer and firemen of ten trains were keeping a lookout and did not see any dog. There is no claim that there was any lookout kept on the switch engines which operated over this portion of the track, any one of which might have killed the dog, and there is no evidence tending to show that the appellant was in the exercise of care or performing* its statutory duty of sounding the alarm before reaching a crossing. The facts do not bring this case within the rule discussed in the case of Mo. Pac. Rd. Co. v. Forsee, supra, nor within the rule announced by the Supreme Court in Western & A. R. Co. v. Henderson, 279 U. S. 369, 49 S. Ct. 445. There was ample evidence to justify the jury in reaching the conclusion that the dog* was killed by the operation of a train, and no evidence on the part of appellant that it was in the exercise of care at the time.
The judgment is affirmed. | [
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Griffin Smith, Chief Justice.
Jess J. Long, while serving as a police officer at Batesville, shot and killed Tom Williamson. His plea of self-defense was rejected by a jury that found him guilty of voluntary manslaughter. A penitentiary term of three years was assessed and the defendant has appealed.
The motion for a new trial, in addition to formal assignments and a contention that there should have been an instructed verdict of not guilty, urges error by the Court in not declaring a mistrial when the Prosecuting Attorney asked Long on cross-examination if the county officers took him from Batesville to Newport “for protective reasons.” Other matters are urged as error, but they were not brought forward in the motion for a new trial.
A little after six o’clock the evening of June 21st, 1949, Alvis P. Ball and his wife, Neva Cook Ball, drove five miles into the country to attend a barbecue given at Glenn Edgar’s farm. They were accompanied by George (Budge) Evans and his wife, and by Tom Williamson and his wife, Grace. Brinks and food in abundance were served, including four kinds of meat. Williamson ate ravenously and became nauseated. There is testimony that intoxicants were generously consumed by the men, but friendly witnesses said that Williamson drank nothing but beer, and that in consequence of overeating illness occurred. When Williamson’s condition became apparent the Ball party left for Batesville. They stopped on Main Street and left Mr.'and Mrs. Evans, then went to the Ball residence where Williamson’s car had been parked, and where Alvis Ball temporarily left them. Mrs. Williamson did not drive, so Mrs. Ball took the wheel, with Williamson on her right. Mrs. Williamson was between them. The arrangement placed Tom Williamson next to the door, spoken of by the witnesses as the “outside.” Mrs. Ball testified that the car speed was 20 miles and that she crossed Main Street when the traffic light was green. Two blocks beyond the bridge at Chestnut Street they turned right. At that time Mrs. Ball observed the light from behind them. It proved to be a police car driven by Ernest Brookerson, who was accompanied by Long. Brookerson was Long’s senior in point of time served on the police force.
The Brookerson-Long car sounded its siren and Mrs. Ball drew up to the curb. Long got out of the police car when it stopped in front of Mrs. Ball and her companions; whereupon, according to Mrs. Ball’s testimony, Long came to the left side of the detained car. After using his flashlight, Long said, “I believe we have the wrong car,” and Mrs. Ball replied, “I believe you [do have the wrong car]. ’ ’ Mr's. Ball then told Long who she was and identified other members of the party. She explained that they had been to the Edgar Farm barbecue, that they were on their way to Williamson’s home— “about a block and a half around the next corner,” — and that Williamson was sick. Williamson had not said anything. Long remarked, “Wait a minute and we will see.” Just then Brookerson got out of the police car and went to the right side of the car Mrs. Ball had been driving; then, said Mrs. Ball (and before either of the officers had said anything more) Mrs. Williamson told them who she was, who the sick man was, mentioned Mrs. Ball’s name, and told where they had been and where they were going. Tom Williamson, who had been reclining with his head against the car seat, or partially through the right front window, “raised up” and said, “You know me: I am Tom Williamson.” He told where they had been and said that he was going home.
While the explanation Mrs. Ball testified that Williamson made was taking’ place, Alvis Ball drove up and parked his car behind Williamson’s, then got out and asked what the trouble was. The door of the Ball car at that instant was opened “from the outside — presum- ' ably by one of the policemen” — and Ball shut it. The act seemingly provoked Long, who struck a vicious blow with his blackjack. Ball was knocked down. The next thing this witness remembered was Mrs. Williamson’s pleadings with Long: — “Don’t knock me down, I am pregnant.” Brookerson and Williamson were “scuffling” not far from the car. Mrs. Ball — who was “trying to get Alvis up” — heard two shots — “saw them.” Brookerson was standing behind Williamson: — “they were all in a huddle” — when Long fired. He then aimed the pistol [in Williamson’s face] and snapped it, but there was no shot.
On cross-examination Mrs. Ball testified that while she was attempting to aid her husband after Long had struck him with the blackjack, [Long in the meantime had gone to aid Brookerson] Williamson pleaded with Long, “Don’t shoot me with that old pistol, Jess.” The three men were then in a chicken yard adjoining the side walk, and were about twelve feet from the Williamson car.
Mrs. Tom Williamson testified to substantially the same proceedings as those mentioned by Mrs. Ball as to how the car was stopped and what was initially said, adding that her husband “roused up,” when one of the officers used his flashlight, and said, “ You know who I am! I am Tom Williamson and they are taking me home. I have been to a barbecue and got sick.” Responding, one of the policemen commented that he “didn’t know whether they were [going home] or not.” Long turned and hit Ball with the blackjack, knocking him into a ditch near the paving. Williamson got out of the car and began scuffling with Brookerson, who weighed 260 pounds. The conflict carried them through a wire fence and into a chicken yard. Brookerson was wielding a flashlight. Mrs. Williamson says she attempted to hold Long, but that he broke loose.
While Brookerson held Williamson from behind, Long got in front of him: — “Tom had asked Long not to shoot, and all the time I was screaming for somebody to help. I begged [Long] to let Tom alone — not to shoot, to let him alone.” Brookerson and Williamson were “coming out of a crouch” when Long fired the first shot. Williamson had just asked Long not to shoot him.
Mrs. Williamson, on cross-examination, admitted that her husband had taken ‘ ‘ a little beer. ’ ’ The witness “believed” that Brookerson struck the first lick when Tom got out of the car. The shots fired by Long were at intervals of “just a second or two” and at the time Long fired he was standing within two or two and a half feet of Williamson. When Brookerson came over to where Williamson fell and Mrs. Williamson asked what should be done, he replied, “I don’t know, lady — he shot me too. ’ ’
Alvis Ball testified that when he drove up to the two cars he left his own lights burning. After getting out of the car lie asked wliat tlie trouble was, “but they didn’t give me any answer.” He didn’t know who hit him. A final statement, given in response to a question asked on cross-examination, was that Brookerson held Williamson “and Jesse Long shot him in cold blood.”
Abbott Shoemaker, who lived “right around the corner in the middle of the block, ” approximately two-thirds of a block from where the killing occurred, was in bed the night of June 21st when his attention was attracted by the noise of cars, but he couldn’t tell how many: — “A short time after that I heard screaming — some woman screaming. Then I heard a man pleading, ‘Don’t shoot me, don’t shoot me.’ I had gotten up and was standing in the front door after the woman screamed the first time. . . . Then I heard two shots that sounded like shooting in a rain barrel of water.” On cross-examination Shoemaker repeated that while standing in the door he distinctly heard a man’s voice “begging someone not to shoot.” The man’s exact words were, “Don’t shoot me with that gun, don’t shoot me with that gun. Then two shots were fired right together, ‘bang! bang!’ like that. ’ ’
Other witnesses testified tllat they lived in the immediate neighborhood, and heard pleadings. Sidney Wilson awoke when a woman screamed; then a woman cried, ‘ ‘Don’t shoot-him, ’ ’ Then followed two shots. He heard somone say, “Don’t shoot him.any more — you’ve already shot him.” It was a woman’s voice. Then someone in the group suggested that an ambulance and the coroner should be called. When Wilson reached the scene Mrs. Williamson had her husband’s head in her lap, with Brookerson standing nearby. The distance from Wilson’s bedroom to the chicken yard was half a block.
Medical testimony was that the two bullets struck Williamson in the chest: one an inch and a half from the left nipple, the other four inches from the nipple, below the median line. Each passed entirely through the body. The exit of one bullet was nine inches below the shoulder-blade, while the other emerged about twelve inches from the tip of the left shoulder. The course of each was slightly downward. Other post-mortem examinations showed a slight injury below the right knee — an eighth of an inch wide and directly across the shin bone. Another abrasion was under the left kneecap. The skin was broken and blood had oozed from it. A “pump knot” protruded near the right eye, and near the right ear something like briar scratches were to be seen.
The accused claimed self-defense, coupled with the assertion that Williamson was resisting arrest and that no more force than necessary was used. Long, whose statements in the main were substantiated by Brookerson, testified that he and Brookerson were sitting in a police car the night of June 21, across the street from Chief Henry Varnell. Brookerson was in the driver’s seat. The chief motioned to them to pull over to his side of the street, then pointed to an automobile that had just passed and said, “There’s a drunk in that car yonder.” The patrolling officers.had not seen the vehicle until then. Believing that the chief’s comment was a direction to investigate, they trailed the car until near enough to sound the siren, then stopped at the point described by Mrs. Ball and others.
Long says that when Brookerson stopped he (Long) walked to the driver’s side and saw a woman "whom he did not then know. A woman asked why the car was being stopped and Long replied that he was looking for a drunk. Then one of the women said there was no drunk person in the car. Long’s reply was, “If you’ve not got any drunk, maybe I got the wrong car. ’ ’ The officer testified that he then looked across the seat and saw a man lying in a suspicious attitude. One of the women told him the man was Tom Williamson: — “She said, ‘you know Tom — let us take him home: you know what Tom will do.’ ”
Long insisted that he didn’t say anything more, but walked around the car, preceded by Brookerson. Both of Williamson’s arms were up and his head was resting on them. Long stopped near Brookerson, who, addressing the person they thought was drunk, said, “Where are you going, fellow?” With that Williamson is alleged 'to have replied, “You g. d. fellows go ahead and let me alone”; whereupon Brookerson informed Williamson he was under arrest. Brookerson grabbed the door, but as he did so Williamson “shoved it open and came out onto him.” Long said that in a quick glance he saw that “Brookerson was on top of Tom.” Then, according to the defendant’s versiqn, Alvis Ball came up behind them and “made toward [Williamson and Brookerson] and when he did that I hit him with a blackjack and knocked him down.” Mrs. Ball went over to where her husband was, and Mrs. Williamson grabbed Long “and began yelling, ‘Don’t hit him any-more.’ She also said, ‘I am pregnant: don’t knock me down, don’t hurt me.’ She was just holding my arms. ’ ’
Long further testified that at this juncture he went across the sidewalk “to help Brookerson with Tom.” The two were on the ground fighting, but got up together. Then, said Long, “Tom turned right around to me, and [with an path] said, ‘I’ll get you, too, . . . beg.’ I threw up my right arm to knock the lick off and Tom grabbed me by the tie and jerked me right up against his side. When he grabbed me and shoved me he cut off my wind, [so] I grabbed my gun and bit bim. I was putting out all tbe force I bad, but was gradually going back, and my wind was- getting short. I saw I was going to bave to do something, and do it quick, for I was nearly chocked out. I shot tbe first shot and Tom grabbed me tighter, [then] I pulled the trigger again and Tom let me loose.”
Near tbe close of his direct examination tbe defendant, talking to tbe jury, said: “After I got my breath I raised up and was standing, gasping for breath. You gentlemen excuse me, it’s not funny, — excuse me for laughing — that’s just a nervous habit of mine.”
On cross-examination Long was asked if Williamson was on his way home when Chief Yarnell identified the car, the purpose of the question being to determine-whether the arrest was made for public drunkenness. Long replied: “He was on the street when we were ordered to take after him.” Q. “On his way home?” A. “I don’t know whether he was on his way home or not.” Q. “They told you so, didn’t they?” A. “They did afterwards.” When asked what Mrs. Williamson meant when she said, “Don’t hit him again,” Long replied: “I don’t suppose she wanted me beating [Alvis Ball] up.”
A day after the killing Long went to Newport for a physical examination. In testifying as to the reason, Long explained that he thought he ought to have “those scratches” seen about. Dr. T. E. Williams testified that they were not scratches, but lacerations.
Brookerson was admitted to a hospital June 24th and discharged on the 27th. He had lost a thumb nail, and had received other injuries and was suffering from muscular spasms, indicating a severe strain. Dr. Williams did not think that certain parallel wounds found on Brookerson had been inflicted by finger nails.
In telling of happenings immediately preceding the shooting by Long, Brookerson testified that Williamson’s emphatic assertion was, “I aha not going anywhere with you Gr, d, s. o. b.’s,” Brookerson repeatedly spoke of liis encounter with Williamson as a “scuffle”; or, “we were clutched together wrestling.”
Carl Thomason, a deputy sheriff, testified that he saw Brookerson in a Batesville hospital June 22nd. When asked whether Brookerson held up his left hand and said, “That is all I got,” the witness replied (after an objection had been overruled): “He raised up in bed and smiled when I asked'how bad he was hurt, and said, ‘ This is all that happened to me: I don’t know whether I was cut or shot.’ ”
The information charged murder in the first degree, involving malice, premeditation, and deliberation. When asked on cross-examination what offense Williamson had committed and why the so-called “arrest” was being made, Long replied: “From the language he used to us officers, I suppose; and probably for drunkenness — I don’t know.” Q. “You mean he had offended you?” A. “If a man called you a G-. d. s. o. b. . . . wouldn’t that make you mad?” And again (question) : “With all you did, you were at no time trying to make an arrest?” A. “No.” Explaining further, Long said that he was only “trying to protect Brookerson — we always try to help each other.”
Other than the insistence that a verdict should have been directed for the defendant, the instructions are not complained of. We do not think prejudice resulted from the Prosecuting Attorney’s comment that Long was taken from Batesville for safekeeping, and there was substantial testimony to show inexcusable homicide, hence the Court properly rendered judgment on the verdict of voluntary manslaughter,
Affirmed.
An objection — not mentioned in the motion for a new trial — was to the Court’s refusal to declare a mistrial when the Prosecuting Attorney, in cross-examining Long on a point as to which the witness indicated that his memory was vague, said, “That part (referring to one of Long’s statements) was a lie to the Court?” Judge Bone’s admonition was: “That remark will be withdrawn from the jury as being improper. The jury is instructed not to consider it.”
Testimony relating- to the distance was given by Mrs. Williamson.
On cross-examination Mrs. Ball admitted that at the preliminary hearing she had testified that Williamson said, “you know me: I am Tom Williamson. We have been out there. I drank some and ate some and got sick.” She also conceded that this was a correct quotation.
Mrs. Ball’s exact statement was: “When I heard Tom [Williamson] ask [Long-] not to shoot him, I looked up. At that time Tom was standing up and Jesse Long just pulled the gun and shot twice. Brookerson was standing right behind them.”
Ball testified in part: “When I asked what the trouble was they didn’t give me any answer. I was between them and the car, and leaned down in the car and asked what was wrong. . . . About that time I looked into the car — leaned down — they started to open the door. I was standing against the car and pushed [the door] back. About that time somebody hit me from behind, and, more or less, I went down in the gutter. It was the hardest lick I ever had. When I came to they were in the chicken yard. Long got loose from Mrs. Williamson [who was trying to hold him] and got over into the fight. The best I could tell they scuffled up and down. From all appearances Tom was on the ground [with] Brookerson more or less on his back. I heard Brookerson say ‘turn me loose’ and Tom answered, ‘let me up and I will turn you loose.’ The next thing I heard was a shot. When I heard the shot [Tom] stood straighter. They [then] shifted positions and there was another shot. After the second shot they all changed positions. . . . [Long] then aimed the gun, but it failed to fire the third time. He aimed it the third time at [Tom’s] face and it just snapped. Before that I heard Tom say, ‘Don’t shoot me with that damned old pistol,’ and Grace [Williamson] had screamed (I don’t know how many times) ‘don’t shoot’. . . . [Williamson] was never loose from [Long] to the extent that he could gain his balance. . . . Tom was [nearly] up when the first shot was fired — half up and half down. After the second shot he straightened up altogether, because he was free of both of them. . . . [Long] then said, ‘don’t bother me,' and covered them with his pistol in one hand and a blackjack in the other. . . No statement was [ever] made to the effect that we [or any of us] were under arrest.” | [
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Griffin Smith, Chief Justice.
S. L. Atkinson as a property-owner of Flat Bayou Drainage District sought to enjoin the Commissioners from petitioning County Court to levy additional taxes against predetermined bet-terments of $208,490.15 that were ascertained when the District was created under general laws in 1917. It was alleged that a new bond issue of $91,000 for use in reconditioning, reconstructing, and repairing proposed by the District (a) could not be sustained from residual tax sources because levies made from time to time had, in the aggregate, exceeded the benefits by 25.8%, and (b) there was no intent to comply with the provisions of Act 203 of 1927 by procuring’ landowner petitions. The District demurred to the complaint, resulting in a ruling by the Court that insofar as the suggested bond issue was concerned betterments had been exhausted, but that the nature of the improvement did not require petitions.
The Act of March 28, 1919, as amended by Act 285 of 1941, is relied on by the petitioning taxpayer. Ark. Stat’s, § 21-541. The enactment of 1919 permitted property-owners to pay assessments in full within sixty days after passage of the Act. If this were not done the betterments would bear interest at six per cent, payable in installments as levied. The Act of 1941 substituted “the formation of the District” for “the passage of this Act”, and added a proviso that it should not apply “to Districts heretofore organized in which interest on bonds or other borrowed money was calculated as a part of the cost of construction and included in the assessment of benefits”.
It is quite clear that the Amending Act was intended to extend the sixty-day period from the time the District was formed by allowing payment without interest if the privilege should be exercised within sixty days from the [effective] date of the later Act; but as to Districts wherein interest on borrowed money “had been calculated as part of the construction and included in the assessment of benefits”, Act 285 has no application. This exception was essential because as to Districts wherein interest on benefits had been included, such interest became a part of the assets pledged, hence a statute authorizing a remission would impair the obligation of contract.
It is necessary to examine successive transactions of the appealing District to determine whether interest on benefits was calculated or included when- money was borrowed. It is not contended that property-owners took advantage of either Act by voluntarily paying the full assessment in advance without interest.
A County Court order of March 23, 1918, deals with a bond issue of $98,000. The judgment recites aggregate assessments of $208,490.15, “which bears interest at six percent per annum”. Bonds drawing interest at 5%% were payable $2,500 February 1, 1919, and. then in varying amounts to and including 1939 — a period of 21 years; but interest of $2,695 was payable in 1918. It was found that $187,266.75 would be required to discharge the principal and interest. The benefits were assessed at 4.3% to produce an annual yield of $8,965.07. The assessing order [subdivision B] mentions “a tax sufficient to produce the sum of $187,266.75, being the estimated cost of the improvement, including the interest on the bonds plus 10% for contingencies, and also a small additional sum annually for current expenses”.
On May 7, 1921, there was an additional judgment authorizing a $30,000 bond issue “to hasten the work for which the District was organized”. The order assessed [subdivision B] “a tax amounting to the sum of $140,800, with interest thereon at the rate of six percent per an-num”. This “tax” was divided into installments, payable 5.3% during 1922, 1923, and - 1924, producing $11,049.97 annually; and for 1925 and succeeding years to and including 1939, 6% of the face of the assessed benefits, producing $12,509.40.
Slight percentage changes in tax levies were subsequently made, but these do not affect the issue because it is conceded'that the total shows 125.8% of the benefits when interest is not considered. This would be $53,790.46 more than the primary sum of $208,480.15.
Atkinson argues that interest on the borrowed money was included in the first tax order because of the mention of improvement costs, including interest on the bonds. But the order must be read in the light of what it did, and what it was intended to do. The bonds drew interest at 5%%, or $5,390 for the first year. The first annual payment on principal was $2,500 in 1919. A half year’s interest payment was made in 1918 — $2,695. The total payment during 1919 was $7,890, so there was a treasury balance of $1,075.07 if we assume that the levy of 4.3% yielded the full return of $8,965.07. Interest at six percent on the assessed benefits would have amounted to $12,509.41. It will thus be seen that if interest at 6% on the assessments and a tax of 4.3 had been collected. the return on a 100% collection basis would have been $21,474.48. No one contends that this was done.
Our conclusion is that interest on the benefits has not been collected, but that the various levies were paid without landowner protests that the $208,490.15 had been exceeded. Result is that the interest may still be computed and used for maintenance purposes. The formula for determining the present unused benefits is as set out in Richey v. Long, Prairie Levee District, 203 Ark. 1, 155 S. W. 2d 582. Whether the assessment of interest will produce sufficient revenue to finance the proposed bond issue after landowners have been credited with sums previously paid is a matter not addressed to us in this appeal.
The complaint alleges, and the demurrer admits, that the additional levy will be used to “reconstruct, recondition, and repair” the levee under authority of Ark. Stat’s, § 21-533, etc. We agree that if the Commissioners were proposing to proceed under Act 203 of 1927, Ark. Stat’s, § 21-518, petitions would be essential. But, while wording of the complaint is not taken verbatim from Act 279 of 1909, the plan appears to be more in keeping with its authority to keep the ditches “clear from obstructions, widening and deepening them”. A very clear comparison of the two Acts with a discussion of their purposes is to be found in the opinion of Mr. Justice Robins, Cox v. Drainage District No. 27 of Craighead County, 208 Ark. 755, 187 S. W. 2d 887. See, also, Owens et al. v. Central Clay Drainage District, 216 Ark. 159, 224 S. W. 2d 529.
Reversed on the Drainage District’s appeal; affirmed on Atkinson’s appeal. | [
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Hart, C. J.,
(after stating the facts). It is well settled in this State that a vendor of land who has parted with the legal title has in equity a lien for the purchase money against the vendee and his privies, including subsequent purchasers with notice. The deed of plaintiff to S. W. Hearn which retains the reservation of the lien was not placed on record, but the bank and subsequent purchasers from S. W. Hearn were charged with notice of all recitals in the title deeds of their vendor whether they were of record or not. No principle of law is better established in this State than this, that one is bound by whatever, affecting his title, is contained in any instrument through which he must claim title, even though it be not recorded and he have no actual notice of its provisions/ Stephens v. Shannon, 43 Ark. 464 ; Green v. Maddox, 97 Ark. 397, 134 S. W. 931 ; Graysonia-Nashville Lumber Co. v. Saline Development Co., 118 Ark. 192, 176 S. W. 129 ; Union & Planters’ Bank & Trust Co. v. Simmons, 166 Ark. 285, 265 S. W. 953 ; Ponder v. Gibson-Homans Co., 166 Ark. 591, 266 S. W. 682 ; and Robertson v. American Investment Co., 170 Ark. 413, 279 S. W. 1008.
This rule is conceded, but it is insisted that the rule has been changed by § 7382 of the Digest, when construed in connection with § 7408 of the Digest. The latter section was passed first. It was enacted by the Legislature of 1911 to provide a period of limitation in the enforcement of mortgages. In Morgan v. Kendrick, 91 Ark. 394, 121 S. W. 278, 134 Am. St. Rep. 78, the court said that the effect of the statute as to third parties is that when the debt secured by a mortgage is apparently barred by limitation, and no payments which would extend the limitation are indorsed on the margin of the record of the mortgage, it becomes as to third parties an unrecorded mortgage; and, like an unrecorded mortgage, it constitutes no lien upon the mortgaged property, as against such third persons, notwithstanding' they have actual knowledge of the execution of such mortgage. Numerous other cases to the same effect are cited in the footnote to the section of the statute. This section does not mention vendor’s liens, and consequently the holders of such lien are not affected by the provisions of the statute.
Section 7382 of the Digest was enacted by the Legislature of 1917 to regulate the manner of renewing or extending the time of maturity of debts .secured by mortgages or vendors ’ liens. The section provides in effect that no agreement for the extension of the date of maturity of any debt or note secured by a mortgage or vendor’s lien or for the renewal thereof, whether made in writing or otherwise, and no written or oral acknowledgment of indebtedness thereon, shall so far as the same affects the rights of third parties, operate to revive said debt or extend the operation of the statute of limitations with reference thereto unless a memorandum showing such extension or renewal is indorsed on the margin of the record where such instrument is recorded.
It will be noticed that § 7408 deals with the subject of partial payments on a mortgage, and that § 7382 deals with the question of the extension of the date of maturity or the renewals of notes secured by mortgages or vendors’ liens. Payment is the discharge of a debt in whole or in part, and is not a contract. Pettus v. Rawls, 131 Ark. 125, 198 S. W. 874 ; and Porter v. Title Guaranty & Trust Co., 17 Idaho 364, 106 Pac. 299, 27 L. R, A. (N. S.) 111.
On the other hand, an extension or renewal of a note rests in contract, and means that which takes place when the debtor and creditor make an agreement upon a valuable consideration for the maturity of the debt on a day subsequent to that provided in the original contract. National Bank of Commerce v. Kennedy, 98 Texas 293, 83 S. W. 368 ; Rossville State Bank v. Heslet, 84 Kan. 315, 113 Pac. 1052, 33 L. R. A. (N. S.) 738.
The record in this case does not show any extension or renewal of the debt or note of S. W. Hearn to Mrs. Spraggins, secured by the vendor’s lien. Hence we are of the opinion that § 7382 has no application under the facts of the present case. Payments on the note or indebtedness of S. W. Hearn to Mrs. Spraggins were made from time to time, and proof of that fact was established by the testimony of Mrs. Spraggins, which is uncontradicted. Hence her debt was established by the uncontradicted evidence, and, under the principles of law above stated she had a vendor’s lien on the lots in controversy which could be enforced in a suit in equity. In short, the effect of a renewal or an extension as provided in § 7382 is merely to extend the time of payment of the note or deed, and does not discharge the obligation. On the other hand, the payment as provided in § 7408 extinguishes the debt to the extent of the payment.
The court also correctly allowed the bank judgment against Thomas A. Hearn, Jr., for $18.64 which it had paid to remove the materialman’s lien on the lot of said Hearn.
We find no reversible error in the record, and the decree will therefore in all thing’s be affirmed. | [
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(Butler, J.
The appellee, a negro man, purchased a ticket at Blytheville, Arkansas, entitling him to transportation over the appellant’s line of railway to Hermondale, Missouri. Hermondale was a flag stop at which point the train was not expected to stop except for the purpose of receiving or discharging passengers. The appellee testified that, when he boarded the train of the appellant at Blytheville, he exhibited his ticket to the train porter who was standing at the door of the colored coach. It was on an evening in January, 1926, and the weather was very inclement. The train did not stop at Hermondale, but continued on to a station called Holland, three and a half miles further, at which point the appellee debarked and walked back to Hermondale and from there to his home in the country, a distance of one and a half or two and a half miles. He testified that there was no accommodation for colored people at Holland; that it was dark and cold, misting and sleeting, and that he contracted a cold from which he suffered ten or twelve days.
The train porter was called as a witness for the appellant and did not directly dispute 'the statement made by the appellee that the ticket was shown him when the appellee boarded the train, and the conductor stated that it was the rule of the railway company for passengers to show their tickets when boarding a train, but that this was sometimes not enforced when the weather was inclement as it was on this occasion. The conductor stated that he did not know that any one was to be discharged at Hermondale, and that he never saw appellee’s ticket until after the train had passed that-point. From the testimony of the conductor and that of the porter it might have been inferred that the appellee got upon the train without notifying any of the train crew as to his destination, and thus an issue of fact arose for the jury’s determination.
At the conclusion of the testimony the court instructed the jury that if, when the appellee boarded the train, he showed his ticket to an employee of the appellant stationed at the entrance of the car for the purpose of determining whether passengers getting on the train had tickets or not, the railroad company would be put on notice' of the fact that it had a passenger for Hermondale, and it was its duty to stop the train at Hermondale so that the appellee might have an opportunity to disembark, and that, if with this knowledge it failed to stop the train and carried the appellee beyond his destination, it was liable in damages to- the appellee. The converse of this instruction was given, and it is conceded that the instructions were substantially correct. The jury found for the appellee, and we are of the opinion that the testimony set out above is sufficient to sustain that finding.
The amount of damages awarded, however, appears to us to be unwarranted by any substantial evidence. There was some testimony to the effect that, when the appellee discovered he was being carried beyond Hermondale and requested that the train be stopped so that he could get off, the conductor cursed and threatened to strike him, and that the conductor was drinking. All of this testimony was denied by the conductor whose testimony was corroborated by that of the train porter. But there was no claim or verdict for punitive damages, so that the verdict must rest upon the evidence tending to establish the amount of compensatory damages. The only testimony tending to establish any injury or loss of time to the appellee was his own, and that testimony, viewed in its most favorable light, is not sufficient to support the verdict of $250, the amount assessed by the jury. It tended to show that the appellee was frightened by having to walk down the track in the darkness and that he contracted a severe cold which made him sick for ten or twelve days during which he was unable to work. He had been laid off of his regular jpb and was without employment except helping his father in a new ground for which work he received $2 per day. "We think the appellee is entitled to some compensation for his mental distress and for the ill effects occasioned by his having to walk five or six miles in the wet and cold and for the loss of his time. The damage for loss of time, however, could not have amounted to more than $25 according to appellee’s own testimony. Therefore, we are of the opinion that $75 is ample to cover the other elements of damage. The judgment of the court will be reduced here to the sum of $100, and as modified will be affirmed. It is so ordered. | [
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Kirby, J.,
(after stating the facts). It is insisted for appellant that the court erred in refusing to direct a verdict in its favor for the amount of the notes: sued on, and this contention must be sustained.
Appellee admitted the execution of the notes sued on, that appellant was the holder or owner thereof, and that they had not been paid by him. He alleged that the notes had been satisfied in accordance with an agreement made with the agent of appellant to return the machine and equipment purchased, that he had performed this agreement in accordance with its terms by setting aside the machine for the company, which was to send for it and return the notes to him. The burden of establishing this defense was upon appellee to prove, not only such- agreement, the performance on his part of the agreement of settlement made with the alleged agent of appellant, but also that the agent had authority to make such settlement, his authority having been denied. The general rule in cases of this kind was declared in J. F. Fargason Co. v. Dudley, 173 Ark. 1159, 294 S. W. 6, as follows:
“A person dealing with an agent is at once put upon notioe of the limitations of his authority, and must ascertain what that authority is. Such person cannot presume that such authority exists; he cannot rely upon the representations of the agent as to what his authority is; he must make inquiry and use due diligence to learn the nature and extent of such authority. If he does not, he deals with the agent at his own risk; and if the authority of such agent is disputed, it devolves upon him to prove it.” See also U. S. Bedding Co. v. Andre, 105 Ark. 113, 150 S. W. 413, 11 L. R. A. (N. S.) 1019, Ann. Cas. 1914D, 800.
. Appellee stated that he made a trade with the collector of appellant company, who agreed to take the tractor back and surrender the purchase money notes, and that -Cooper, who had sold him the machine, was with the collector at the time; said he settled without asking what authority the agent had. “I did not do anything to find out whether he had the authority to take this machine back; I didn’t care whether he had authority or not. I just presumed he had the authority. I knew Cooper had the authority, because I bought the tractor from him.”
Mr. Lusk, the collector of appellant company, who was introduced as a witness by appellee, stated he-was collector for appellant company. “I was the agent to collect notes that were past due. I have no other authority without further instructions from my superior. If I fail to collect a note, it is my duty to report to the company. I reported to the company in this ease. They declined to accept the tractor in settlement of the notes. I notified Mr. McLaughlin of this fact.”
W. 'S. Matthews stated he was “collecting manager” for appellant company with full control and jurisdiction over other territory including Arkansas; appointed Lusk traveling collector with authority limited to making collections, “and he has no further authority.” When he failed to make collection of notes, he reported to Matthew’s office. He reported when he went-to see McLaughlin that McLaughlin couldn’t pay the notes, and, if the company wouldn’t grant him an extension, he wanted to return the machine in settlement of the notes outstanding. Witness took the matter under advisement, decided they couldn’t take the machine back, and had Lusk to notify McLaughlin, which was done. “He had no authority to make any other arrangement other than collect the note. ’ ’
Thus it appears that there was no substantial evidence showing -any authority upon the part of the collector, Lusk, to make a settlement of tie notes by accepting the return of the machine; the testimony that he had no such authority being virtually undisputed. Nor does the testimony show any implied authority to receive or take the property or anything but money in. collection or payment of the notes, nor any.conduct indicating apparent authority to do so. U. S. Bedding Co. v. Andre, supra ; Rodgers v. Peckham, 120 Cal. 238, 52 Pac. 483 ; Wales Riggs Plantations v. Graves, 132 Ark. 155, 200 S. W. 804 ; Pierce v. Fioretti, 140 Ark. 306, 215 S. W. 646.
The transaction therefore could not have amounted to more than an offer on the part of McLaughlin to settle the notes by the return of the machinery, which appellant declined to accept, and notified appellee it had done so.
It follows that the court erred in not directing a verdict in favor of appellant, and the judgment is therefore reversed, and judgment will be entered here as should have been rendered in the lower court. It is so ordered. | [
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David Newbern, Justice.
Susan Gale Short was killed when her car left the highway and overturned. Her mother, the appellant Cecil Jean Short, brought an action on her own behalf and as administratrix of Susan’s estate against the appellees, Little Rock Dodge, Inc., and Chrysler Corporation, alleging negligence as well as strict liability for manufacture and sale of a defective product. A summary judgment was entered in favor of the defendants because, in response to the summary judgment motion, Mrs. Short was unable to produce evidence that a defect in the car or Little Rock Dodge’s negligence in failing to repair it caused the accident. The ruling was correct and is affirmed.
When the summary judgment motion was made, the judge had before him depositions and responses to requests for admissions and interrogatories. Susan’s father stated the car had been purchased used from Little Rock Dodge and had been returned for repair of an engine stalling problem. Other witnesses said the car had stalled while they were riding with Susan, and one said the car had stalled while she was riding with Susan just a few hours before the accident.
There were no eyewitnesses to the crash. Susan was driving alone. The car was traveling on a hilly and winding highway. It apparently went off on the right shoulder, crossed over the road, and turned over on the left side of the highway. A state policeman who was following Susan’s car at a distance and who came upon the scene shortly after the crash stated he could not determine the cause. He had noticed Susan’s car ahead of him going 40 to 60 miles per hour.
The statement of an experienced mechanic was that Chrysler Corporation had recalled cars of the same year and model as Susan’s for replacement of a carburetor part to remedy the stalling problem. However, no affidavit or other statement by any expert or other person to the effect that the stalling problem caused the accident was presented. Nor was proof offered which would have negated other possible causes of the accident. If there is proof of a defect, as there was here, the case might be allowed to go to a jury despite a failure to show by direct evidence that the injury was proximately caused by the defect. That would be so if there were evidence that other possible causes could not have been the cause of the injury. In Higgins v. General Motors Corp., 287 Ark. 390, 699 S.W.2d 741 (1985), we affirmed the granting of a directed verdict because there was no such other evidence.
It is proper to grant a summary judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ark. R. Civ. P. 56(c). In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the Supreme Court interpreted F.R.C.P. 56, which is identical to our rule in every material respect, as permitting a summary judgment when a plaintiff cannot offer proof of a material element of the claim. We agree with the Supreme Court’s rationale that when a party cannot present proof on an essential element of her claim there is no remaining genuine issue of material fact, and the party moving for a summary judgment is entitled to judgment as a matter of law.
Affirmed.
Glaze, J., dissents. | [
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Richard B. Adkisson, Chief Justice.
The only issue in this case is whether Act 77 of 1979, Ark. Stat. Ann. § 80-502.10 (Repl. 1980), is unconstitutional as special or local legislation. The Pulaski County Chancery Court held that the act was constitutional, and on appeal we affirm.
The act provides:
Certain school boards to be elected by zone. — The County Board of Education of each county encompassing a school district which may now or hereafter having [have] an average daily attendance in excess of 24,000 shall divide such school district into zones for the purpose of electing members to such school district’s Board of Directors and such zones shall be of equal population to the extent possible. Beginning with the 1983 school board elections, members of the Board of Directors of school districts with an average daily attendance in excess of 24,000 shall be elected by zone; and shall be qualified electors of the zones from which elected; and shall have actually resided in such zone for at least six [6] months prior to their election.
Amendment 14 of the Arkansas Constitution provides that “The General Assembly shall not pass any local or special act.” In Webb v. Adams, 180 Ark. 713, 23 S.W.2d 617 (1929) we defined special and local:
A local law is one that applies to any subdivision or subdivisions of the State less than the whole. ... A law is special in a constitutional sense when, by force of an inherent limitation, it arbitrarily separates some person, place or thing from those upon which, but for such separation, it would operate.
Although the terms are sometimes used synonymously, “special” relates to persons or things and “local” relates to political or geographic units. Anderson, Special and Local Acts in Arkansas, 3 Ark. L. Rev. 113 (1949).
Acts of the legislature are accorded presumptive validity with all doubt concerning the constitutionality of an act resolved in favor of constitutionality. If it is possible for the courts to so construe an act that it will meet the test of constitutionality, they not only may, but should and will do so. Heber Springs Sch. Dist. v. West Side Sch. Dist., 269 Ark. 151, 599 S.W.2d 371 (1980). Therefore, the burden of proof is on appellant to prove the act is arbitrary, that is, that the classification does not bear a reasonable relation to the purpose of the act. Here, there was no evidence tending to show arbitrariness or unreasonableness except that the act currently applies only to one school district, a contention which we answered in Thomas v. Foust, 245 Ark. 948, 435 S.W.2d 793 (1969):
The fact that a law is limited in effect to only one or a few classifications does not necessarily condemn it as special or local legislation if the classification is not arbitrary and bears a reasonable relation to the purpose of the act.
We are unable to say that the chancellor was clearly erroneous in finding that the classification in Act 77 of 1979 bears a reasonable relation to the purpose of the act, that purpose being to ensure a broad based representation on the school board in school districts with a large daily attendance. The legislature may have concluded that zoning was necessary in order to achieve that purpose in a large and diverse district.
The case of Special Sch. Dist. of Fort Smith #100 v. Sebastian Co., Ark., 277 Ark. 326, 641 S.W.2d 702 (1982), upon which appellant relies, is distinguishable. In that case the challenged legislation applied only to counties with a population between 78,000 and 84,000. Although we found that there was a legitimate purpose for the legislation, the classification was so narrowly drawn that we concluded the act was special legislation. However, under Act 77 of 1979 the classification is open, with no upward limit on the daily attendance. Prospectively, a substantial number or all of the state’s districts could fall within this classification.
Affirmed.
Hickman, Purtle, and Hays, JJ., dissent. | [
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Tom Glaze, Justice.
This criminal appeal involves a battery charge brought against the appellant after he beat his wife. The incident occurred on August 10,1983, when appellant threatened his wife by brandishing a pistol in her face, and later that night beat her unmercifully. After the beating, appellant first was arrested for public intoxication and then a second degree battery charge was apparently added. That battery charge was apparently reduced since the record shows a third degree battery charge was nolle pressed on January 4,1984, when appellant was charged in circuit court with first degree battery. After numerous delays and trial settings, appellant was tried and convicted on March 5, 1987, and sentenced to twenty years imprisonment. Appellant argues on appeal that the state violated his right to a speedy trial. We do not agree, and therefore affirm.
In their arguments, the appellant and the state disagree on when the time should commence in calculating the eighteen-month period within which the appellant was required to be tried. See A.R.Cr.P. 28.1(c). Appellant cites A.R.Cr.P. 28.2(a) and contends the time commenced on August 10, 1983, the date of arrest. The state claims the time commenced on January 4,1984, the date the first degree battery charge was filed. In support of its claim, the state argues there is no proof the appellant’s arrest on August 10, 1983, was for the battery charge with which he was finally charged and convicted. From our review of the record, we conclude the parties’ disagreement over these dates has no legal significance because the state still tried the appellant within the time prescribed by law even when we employ the earlier date of August 10, 1983.
The appellant was tried on March 5,1987, nearly forty-three months after his arrest on August 10,1983, and well outside the required eighteen-month period in effect at the time. That being so, the state has the burden of showing that any delay was the result of appellant’s conduct or was otherwise justified. Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988). The periods that must be excluded when computing appellant’s trial under Arkansas’s speedy trial rules are set out in A.R.Cr.P. 28.3(a) and (e). Those relevant, excludable periods involve delays that resulted from the appellant’s pretrial motion to dismiss, his request for a competency evaluation and his unauthorized absence from both the state and various trial dates. The chronology of significant events is as follows:
As we previously noted, appellant’s trial was held approximately forty-three months — specifically 1,301 days — after his arrest. During this time, appellant received six different trial settings, and he left the state twice without notifying the court. In analyzing the foregoing list of events, the first excludable period of 340 days resulted because appellant’s whereabouts were unknown. Sergeant Ike Wei ton testified that the appellant, after his arrest on August 10, 1983, had the duty to notify his bondsman and the court of any address changes. Nevertheless, after the first degree battery charge was filed on January 4, 1984, Welton said his department mailed an arrest warrant to the address given them by appellant. The officer received no reply. On March 20, 1984, an officer was sent to arrest appellant at his residence, but the officer learned the appellant had left three months earlier and had not returned. In fact, appellant was later located and arrested in Louisville, Kentucky on November 3, 1984, and extradited to Arkansas on December 12, 1984. In sum, the state showed that on March 20, 1984, the officers discovered that appellant had left his residence three months earlier and did not find him until he was arrested in and extradited from Kentucky. Under these circumstances, appellant’s whereabouts were unknown to the state and the delay resulting during this period was caused by his own action and excludable under Rule 28.3(e).
Another period excludable under Rule 28.3(e) occurred when the appellant failed to appear for trial, which had been set for July 26, 1985. Again, appellant was located and arrested in Kentucky on January 30, 1986, a 188-day period of delay. That period, we conclude, is excludable because he absented himself from the court without notifying the court or requesting its permission to do so.
The next excludable period resulted from the appellant’s pretrial motions in which he requested the case be dismissed because the state violated the speedy trial laws. After fourteen days, the court denied the appellant’s motion. This period was excludable under Rule 28.3(a).
Finally, a 223-day period of delay resulted from proceedings concerning the examination and evaluation of the appellant’s competency to stand trial and to determine if he lacked the capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law when the crime was committed. Again, this period of time is specifically excludable under Rule 28.3(a).
In adding the excludable periods noted above, they total 765 days, leaving only 536 days — less than eighteen months — of the original 1,301 days (or nearly forty-three-month period) between the appellant’s initial arrest (8-10-83) and when he was tried (3-5-87). Because the record and proof reflect the appellant was tried within the legally required eighteen-month period, we uphold the trial court’s decision denying the appellant’s request to dismiss this cause for violation of the speedy trial laws.
Purtle, J., dissents. Dudley, J., concurs.
Appellant cited A.R.Cr.P. 28.2 and argued that the first degree battery charge was based on the same conduct as the earlier charges, so the time would still commence when he was first arrested.
The appellant does not mention Glover v. Stale, 287 Ark. 19, 695 S.W.2d 829 (1985), wherein the state showed it had mailed the defendant a notice of a trial setting to his last known address, but it received no reply. We held the state failed to prove the defendant was not at the address; also the defendant and his mother testified he lived at that address and never received a trial notice. The present case is clearly distinguishable because the unrebutted testimony reflects the defendant had removed himself from the residence (address) given the court months before the officers tried to locate and arrest him.
Appellant also argues the trial court failed, as required under A.R.Cr.P. 28.3(i), to set forth the number of excludable days in a written order or docket entry, but since that issue was not presented below, we do not consider it on appeal. See Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988). | [
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John I. Purtle, Justice.
This is an appeal from a verdict and judgment in the Saline County Circuit Court against the appellants and Roger Sample on a claim for negligently retaining an employee who allegedly was disposed to molest adolescent males by force or threat. The defendant, Roger Sample, did not appear at the trial and defend the action nor does he appeal from the judgments for compensatory damages entered jointly and severally against all three defendants in the sum of $400,000, nor from the judgments against Sample only for $250,000 each to the appellees for punitive damages. For their appeal the appellants argue that there is no substantial evidence to support the verdict and that the verdict against them is excessive. We agree that the appellees failed to present substantial evidence to meet their burden of proof as set out in instructions 8 and 9 given to the jury. Therefore, the judgment against the appellants is reversed and dismissed.
The complaint against St. Paul Fire and Marine Insurance Company (insurance carrier for the Arkansas Children’s Hospital), Comprehensive Care Corporation and Roger Sample, alleged a joint venture between Arkansas Children’s Hospital and Comprehensive Care Corporation in the project known as the Adolescent Stress Center. A direct action was allowed against St. Paul because ACH is a charitable institution. The complaint alleged that Sample committed two separate sexual assaults on Keith Knight while acting within the scope of his employment and that the appellants were negligent in hiring, supervising, and retaining Mr. Sample as an employee and in failing to warn the appellees of Sample’s dangerous propensities. The only theory that went to the jury was that ACH was negligent in not terminating Sample and that Comprehensive Care was negligent in failing to take steps to secure his termination.
At the heart of the issues to be decided on this appeal are instructions number 8 and 9. Number 8 (not based on any model instruction) instructed the jury that the appellants could only be found liable for negligently retaining Robert Sample as an employee if they found: that pursuant to his employment Roger Sample had a right to be where he was when the wrongful act allegedly occurred; that the meeting between Keith Knight and Sample was a direct result of the employment; and that the appellants would have received some benefit from the meeting between Sample and Knight had the wrongful act not occurred.
Instruction number 9 (roughly based on AMI 203) included some overlapping of instruction number 8 among its five essential propositions. The first and second elements required a finding that Sample was disposed to molest adolescent males by force or threat and that the appellant knew or should have known of his disposition to do so. The third element of instruction number 9 required a finding that ACH was negligent in not terminating Roger Sample and that Comprehensive Care was negligent in failing to take steps to secure the termination. The fifth element was a charge that required a decision that the harm to Keith Knight was proximately caused by the negligence of the appellants. The instruction had the usual concluding paragraph requiring that each of these five propositions must be proven before a verdict could be returned in favor of the appellee. No objection was made to these instructions.
At the time Keith Knight was admitted to the Stress Center in June, 1986, Roger Sample was employed as a psychiatric technician by ACH and was assigned to the Stress Center. Upon the admission of Keith, Roger Sample was assigned as his co-case worker. Sample worked the 3:00 p.m. until 11:00 p.m. shift at the center. Basically, Sample served as a supervisor and tutor for Knight while he was in the Stress Center. Although the schools where the students were enrolled continued to make assignments, the Stress Center followed through to see that those assigned to the center kept up with their regular school studies. Occasionally the case workers and other personnel from the Stress Center went with the residents of the Stress Center to the Arkansas Arts Center, to movies, and sometimes to a bowling alley.
During the time Knight and Sample were associated at the center they did a considerable amount of wrestling. According to Knight they usually wrestled every day. Most of the other boys wrestled with Sample or other case workers. The only complaint Knight ever made was that Sample was getting a little rough in the wrestling. It was admitted that during the wrestling Sample sometimes placed his hand or arm on the genitals of the young boys and sometimes slapped them on the buttocks. Keith Knight stated he did not feel that he was being sexually molested by Sample, even though they were sometimes in Knight’s room together at night.
The young man was at the institution for about five and a half weeks. He was discharged because he would not follow the program. In his words, “I would not cooperate.” He stated he supposed he was just hardheaded at the time, and that “[b]y the time I had completed my stay, I thought Roger was one of my real friends.” Sometime after Knight had been discharged from the center, it was revealed that some persons had observed what they thought to be improper conduct by Sample, such as placing his hands on the genitals of the boys when they wrestled, or patting them on the buttocks. Some also stated that he sometimes sang dirty songs and on at least one occasion remarked that Keith had a “big one.”
At the time Knight was discharged and he and his mother started to the door of the Children’s Hospital, Sample approached and talked to them. No other employee of ACH, Comprehensive Care or the Stress Center was present at that time. Sample walked them to the door and commenced explaining the “big brother program” to Keith and his mother. The net result was that Sample gave Knight his home telephone number on a card and said, “Call me when you get home.” (He specifically requested the call be made after work.) Sample called the young man that night at home to see how he was getting along. He told Keith Knight that he was going on a two week vacation but, that when he returned, he would call him and they would go on an outing. It was the young man’s understanding that the “big brother” care Sample was offering him was a part of the “after care program” at the Stress Center. However, Keith stated that he understood that one could not attend this program unless he had completed the institutionalized program at the Stress Center, and that he had not completed the program.
On July 22, after Sample returned from his vacation, he arranged to take Keith shopping and to go to Wild River Country, a water theme amusement park. Admittedly Keith was anxious to go because he trusted Sample and thought he was one of his best friends. They first went to a store where Sample offered to buy Knight a bathing suit, but Knight refused. Sample then bought one for himself and invited Knight into the dressing booth to watch him try it on. The invitation was declined. After the visit to the store they returned to Sample’s home, where he pulled a gun on Knight and forced him to undress. Sample then performed oral sex on the adolescent. They subsequently went to Wild River Country and, after a fairly short visit, returned to Sample’s home where a similar incident occurred. Knight, sometime later, stated that Sample had threatened to kill his mother and brothers if he ever told what Sample had done.
After the incident was reported to SCAN, the young man was placed in Rivendale, a residential psychiatric treatment center, because he was a threat to his mother and to his brothers. He had become violent, beating his brother and his mother and punching holes in the wall. He said he did this because he was frustrated. He thought that he might be a homosexual because of what Sample had done to him. At any rate, his life was generally miserable, as was that of his mother and brothers, and he was forced to obtain further treatment at Rivendale. He was progressing well at the time of the trial and was hopeful that he was on his way to a complete recovery from the trauma of the incident.
The fact that Keith Knight and his mother thought he was in the “after care” program at the Stress Center is the basis upon which the suit was filed. However, he was not actually enrolled in the program. Keith himself stated: “I knew that the after care program was for those who graduated. I did not know I did not qualify for it. I knew I had to graduate to be in.” There is no evidence that the Stress Center, ACH or CCC had any knowledge or reason to know that the young man believed he was enrolled in their after care program at the time of the assault.
The appellants presented testimony to the effect that it was against the policy of the institutions and the program to allow contact with patients after the patient had been discharged. Testimony reveals that the institutions had no prior knowledge of the subsequent contact in this case.
The appellants make several arguments for reversal, but for the purposes of this opinion we treat only the matters of the sufficiency of the evidence and instructions 8 and 9. The complaint alleged that Sample had committed the assault on Knight while acting within the scope of his employment, and that the appellants had been negligent in hiring, supervising and retaining Sample as an employee and by failing to warn the appellees of Sample’s dangerous propensities. The instructions given to the jury presented only the issue of negligent failure to terminate.
Instruction number 8, given without objection, reads as follows:
You are advised that Arkansas Children’s Hospital and Comprehensive Care Corporation can only be found liable for negligently retaining Roger Sample as an employee if you find the following to be true.
First, that pursuant to his employment, Roger Sample had a right to be where he was when the wrongful act allegedly occurred;
Second, that the meeting between Keith Knight and Roger Sample, at which time the wrongful act allegedly occurred, was a direct result of the employment; and
Third, that Arkansas Children’s Hospital and Comprehensive Care Corporation would have received some benefit from the meeting between Roger Sample and Keith Knight had the wrongful act not occurred.
Instruction number 9, also given without objection, reads as follows:
Marie Knight, individually and as parent of Keith Knight, a minor, claims damages from St. Paul Fire and Marine Insurance Company and Comprehensive Care Corporation, and has the burden of proving each of five essential propositions.
First, that Roger Sample was disposed to molest adolescent males by force or threat;
Second, that Arkansas Children’s Hospital and Comprehensive Care Corporation knew or should have known of Roger Sample’s disposition to do so;
Third, that Arkansas Children’s Hospital was negligent in not terminating Roger Sample and that Comprehensive Care Corporation was negligent in failing to take steps to secure the termination of Roger Sample as an employee of Arkansas Children’s Hospital before Keith Knight was discharged;
Fourth, that Roger Sample caused harm to Keith Knight;
And Fifth, that the harm to Keith Knight was proximately caused by the negligence of Arkansas Children’s Hospital and/or Comprehensive Care Corporation.
If you find from the evidence in this case that each of these propositions has been proved, then your verdict should be for the plaintiffs against the party or parties found to be negligent; but if on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for the defendants.
The appellees’ case is premised upon the theory that Sample had a propensity to molest adolescent males and that the appellants knew or should have known that the employee was a danger to adolescents enrolled in the Stress Center. We do not find evidence in the record which would put the appellants on notice that the act which occurred was foreseeable.
We have not previously considered the negligent retention of an employee theory of liability. We therefore look to the treatment of this question in other jurisdictions.
In Abernathy v. United States, 773 F.2d 184 (8th Cir. 1985), the court held that actual threats of violence by a person with a history of violence were not sufficient in and of themselves to impose liability on an employer for future violence. The history of a person having committed crimes against property does not make a rape foreseeable. Kane v. Hartford Accident and Indemnity Company, 159 Cal. Rptr. 446 (1979). Physical aggression and obnoxious behavior by an employee does not require the employer to discern a propensity for violence. Dempsey v. Walso Bureau, Inc., 246 A.2d 418 (Penn. 1968). Even if every statement of fact by the appellees were conceded, there would still be no rational basis for requiring employers to foresee the threat of violence which occurred in this case. Employers cannot be required to possess clairvoyant powers to discern whether an employee should be retained.
Instruction number 8 advised the jury that before it could find the appellants liable for negligently retaining Sample as an employee it must find that Sample had a right, arising from his employment, to be where he was at the time the wrongful act occurred. Nothing in the record indicates that Sample’s employment required him to have this young man in his home. The second requirement of this instruction was that the meeting must have been a direct result of the employment. An example of an incident arising as the result of employment can be found in Boykin v. District of Columbia, 484 A.2d 560 (D.C. App. 1984), where a teacher assaulted a student during a private conference required by the school curriculum. The meeting in the present case was the result of the employment only in the minds of the appellee and his mother. Not only was Sample not authorized to meet with Knight at his home, he was specifically prohibited from doing so by his employment by ACH. Although the appellees may not have been aware of this, it was nevertheless a condition of his employment. The third required element was that the appellants would have received some benefit from the meeting between Sample and Knight. Obviously, no benefit resulted to the employer, and none would have resulted had the violent act not occurred.
The ninth instruction primarily charged the jury that, in order to find the appellants liable for negligently failing to terminate Sample or failing to take steps to secure his termination, they must find that Roger Sample was disposed to molest adolescent males and that the employer should have known of this propensity. The appellees argue that the hospital’s background check on Sample was very inadequate and that a proper investigation would have shown that he was not qualified for the position of psychiatric technician. There is no evidence that the hospital gained any information which would have led them to conclude that this employee might be predisposed to commit violent acts against anyone. See Williams v. Feather Sound, Inc., 386 So. 2d 1238 (Fla. App. 1980). The investigation conducted by the hospital revealed that Sample had received apprentice counselor’s credentials in the area of substance abuse from a community college in Michigan, that he had supervised a staff at the Pontiac Recreation Summer Playground Program, and that he also had received an honorable discharge from the Air Force. The investigation further revealed that, after he moved to Arkansas, he had completed a 500 hour work-study program at the McClellan Memorial Veterans Hospital and was enrolled as a student at the University of Arkansas at Little Rock when he applied for the position with ACH. He had no criminal record and no history of violent acts or sexual misconduct. It would take a vivid imagination to glean from this evidence any predisposition of appellant to molest adolescent males or commit sexual assault. See Strauss v. Hotel Continental Co., Inc., 610 S.W.2d 109 (Mo. App. 1980).
After the occurrence of the criminal episode upon which this action is founded, the hospital learned that Sample had been discharged from Rivendale for “physical violence.” The investí gation revealed that as part of his duties he was attempting to put restraints on a teenager when the youth bit him. His violent act consisted of slapping the patient for biting him, in violation of Rivendale’s policy prohibiting the use of physical force on patients.
We have diligently searched the record and do not discern substantial evidence to support the verdict against the Arkansas Children’s Hospital and Comprehensive Care Corporation. The case is reversed and dismissed.
Reversed and dismissed.
Hickman, J., concurs.
Glaze, J., dissents. | [
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George Rose Smith, Justice.
On June 23, 1972, the appellant killed her husband, David Murphy, by shooting him with a .22 caliber rifle. To a charge of first degree murder she pleaded insanity. The jury, rejecting that defense, found the accused guilty of second degree murder and fixed her punishment at seven years imprisonment. Two asserted errors are argued as grounds for reversal.
At the beginning of the trial it was stipulated that Mrs. Murphy fired the fatal shot. Later on the State was allowed to introduce not only the rifle that was used in the homicide but also some .22 cartridges, two wooden clubs, a meat cleaver, and a butcher knife, most of which were found by the police in the bedroom where Murphy was shot. It is now insisted that the exhibits, other than the rifle, had no bearing upon the case and should not have been shown to the jury. Counsel cite Rush v. State, 238 Ark. 149, 379 S.W. 2d 29 (1964), where we held that the trial court erred in allowing the State to introduce in evidence a pistol that had no connection with the homicide for which the accused was being tried.
Here, however, the articles in question were relevant as bearing upon the matter of premeditation and deliberation, which the State was required to prove. Simmons v. State, 227 Ark. 1109, 305 S.W. 2d 119 (1957). Mrs. Murphy shot her husband in a bedroom in the couple’s home. According to her statement to the police, which was admitted in evidence without objection, Mrs. Murphy discovered on the morning of the shooting that her husband had cashed certain bonds that were kept in a lockbox. She telephoned him at work and asked him to come home, which he did. The two quickly got into a scuffle, and David was shot. In her statement to the police Mrs. Murphy mentioned the two clubs that were in the room and went on to say: “I was going to knock the devil out of him with that stick. That’s what I had in mind. And he didn’t come close enough to me.” The rifle had been between the mattress and springs of one of the beds, but the other weapons were somewhat more accessible. Hence the articles now in question were pertinent as tending to indicate to the jury that Mrs. Murphy had planned the homicide when she persuaded her husband to come home during the morning.
Appellant’s second objection is to Dr. Kozberg’s testimony that in his opinion Mrs. Murphy was mentally competent at the time of the killing. The witness, a psychiatrist employed by the State Hospital, had participated with other doctors in the examination of Mrs. Mur- , phy at that institution. That examination was conducted pursuant to the statute. Ark. Stat. Ann. § 43-1301 (Supp. 1971). The appellant’s present complaint goes not to Dr. Kozberg’s professional qualifications but to the fact that the joint staff examination of the accused took only about thirty minutes and that Dr. Kozberg was not sure that he himself asked her any questions. Even so, the witness’s expert opinion was admissible, for the reasons stated in Ark. State Highway Commn. v. Johns, 236 Ark. 585, 367 S.W. 2d 436 (1963). The brevity of the examination was doubtless considered by the jury in weighing Dr. Kozberg’s opinion, but the testimony was nevertheless admissible.
Affirmed.
Harris, C.J., not participating. | [
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Lyle Brown, Justice.
Appellant is the widow of S. W. Woods, who died intestate. Appellee is the duly qualified administrator of the estate of the deceased. The administrator filed his petition for final distribution and discharge. Among the listed disbursements was the payment of $7569.57 to the Mercantile Bank of Jonesboro. The widow filed an objection to the payment on the ground that no claim had been filed thereon, nor was any effort to foreclose any lien filed. The widow asked that the administrator be required to reimburse the estate in the amount of the payment to the bank. A hearing was conducted thereon and the probate court approved the payment “as payment of a proper debt against the estate to the bank secured by a lien on crops and equipment”. On appeal it is contended that the debt should not have been paid in the absence of the filing of a claim or any effort to foreclose the lien held by the bank. It should be noted that the bank is not a party to this case.
The record shows that the administrator was authorized to continue the decedent’s farming operation. In connection therewith he borrowed from the bank under a security agreement, and with the approval of the probate court, an additional sum of $6480 (in addition to what Woods owed at the time of his death) to continue the farming business. Of course in the sale of the crops the bank’s security interest became liquidated. The only thing left for the bank to do under those circumstances was to apply the proceeds, so far as necessary, to the satisfaction of its security interest and to release the balance thereof to the personal representative pursuant to Ark. Stat. Ann. § 62-2609 (b) (Repl. 1967). Under the circumstances the filing of a claim by the bank or any other legal proceeding was unnecessary.
While the witnesses spoke of payment of the debt, the practical effect was the same as if the bank had liquidated the security interest pursuant to § 62-2609 (b) and turned over the excess of the proceeds to the personal representative. Consequently the trial court correctly absolved the administrator of any liability.
Affirmed.
Harris, C.J., not participating. | [
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Darrell Hickman, Justice.
The question in this case is whether certain testimony admitted at trial was relevant. We reverse the trial court’s ruling admitting the evidence.
This case is a result of an automobile accident at an intersection in Newport, Arkansas. Traffic lights controlled the actions of both drivers. The appellant, owner of a vehicle driven by his daughter, claimed the appellee ran a red light, and the driver of his vehicle had a green light. The appellee also said she had a green light and claimed that the traffic light had malfunctioned. On cross-examination by the appellee, the officer investigating the accident agreed that repeated complaints had been received that this particular light had malfunctioned. The officer told the appellee that it was possible that the light gave conflicting signals.
The question to us arises from appellee’s offer of an officer’s testimony that a similar traffic light in the city, on the same road about a quarter to a half mile away, had malfunctioned exactly the same way — green lights both ways — six months after this accident. Initially, the trial judge ruled the evidence was not admissible; then he reversed himself and decided to allow the testimony. But he would not allow testimony that the light in question malfunctioned 15 months later.
We have held repeatedly that the relevancy of evidence is within the trial court’s discretion, subject to reversal only if an abuse of discretion is demonstrated. Dalton v. City of Russellville, 290 Ark. 603, 720 S.W.2d 918 (1986); Arkansas Power & Light Co. v. Johnson, 260 Ark. 237, 538 S.W.2d 541 (1976). However, in this case the trial judge abused his discretion in admitting evidence not shown to be relevant.
A.R.E. Rule 401 defines relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. The definition of relevant evidence is broad, yet in order to be relevant the evidence must be probative of the proposition toward which it is directed.
The testimony the trial judge admitted concerned an accident occurring six months later at a different intersection. Presumably, the appellee introduced the evidence to show that the traffic light in question malfunctioned. Yet a proper foundation demonstrating the factual relevance of this evidence was not established. There was no testimony that the traffic lights were identical or that they operated in sequence or from the same central electrical system. All we have is the officer’s statement that the lights were “similar.” Thus, whether a malfunction at one intersection had any relevance to an alleged malfunction at a different intersection was totally conjectural.
In Arkansas Power & Light Co. v. Johnson, supra, we said the following:
Admission of evidence of subsequent incidents, like that of prior incidents poses the question of relevancy, even though the admission of the former must be approached with greater caution than the latter.
Before evidence of subsequent incidents may be received into evidence a proper foundation demonstrating the probative relevancy of this information must be presented. Factors to consider are the remoteness in time and the similarity of circumstances.
No foundation for the relevance was established nor was any factual similarity of circumstances proven. The trial judge’s first instinct was correct. The appellee had not demonstrated the relevance of an incident far removed in time and which occurred at an entirely different intersection.
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Tom Glaze, Justice.
Appellants, B.A.R. Enterprises, Inc. and R.A.P. Sales, Inc., bring this appeal from a default judgment entered in behalf of appellee, Palin Manufacturing, Inc. Palin is an Arkansas company which manufactures and sells sludge consolidation filters, and these filters were comprised of goods Palin purchased from B.A.R.’, another domestic company. Sometime in February of 1986, R.A.P., a Wisconsin company, agreed to market Palin’s filters. R. A. Phipps, who has an interest in B.A.R. and R.A.P., was to use his best efforts on R.A.P.’s behalf and in furtherance of its agreement with Palin.
The parties performed their agreement until September of 1988, when Phipps went to work for Texo Corporation, which was both a customer of Palin’s but was also a competitor of other customers of Palin. Palin then initiated this suit, alleging R.A.P. could no longer perform under the parties’ agreement because of Phipps’ employment with Texo. Among other things, Palin sought to prohibit the wrongful use of Palin’s customer lists and to enforce noncompetition restrictions to which the parties had agreed. Palin also sought damages from R.A.P. for certain “start-up” monies that Palin incurred and asked the court to determine any indebtedness existing between Palin and B.A.R.
Apparently, the parties’ counsel made some attempt to resolve their differences immediately after Palin filed suit, but those negotiations quickly faded. James Ward, a Wisconsin attorney representing both R.A.P. and B.A.R., asked Palin’s attorney to agree to extend the time to answer Palin’s complaint, but when Palin’s counsel said that he would check with his client, Ward responded saying he would answer immediately. Ward prepared an answer which was filed timely on R.A.P.’s behalf, but his answer for B.A.R. was one day late.
Palin moved to strike B.A.R.’s answer as untimely and requested both answers be struck because Ward was not licensed to practice law in Arkansas and Ward had not complied with the state’s “Practice by Comity” requirements found in Rule XIV. Ward opposed Palin’s motion merely by filing an affidavit that related (1) his prior talks with Palin’s counsel, (2) his decision to file answers for R.A.P. and B.A.R. immediately after negotiations failed, (3) when he mailed the respective answers and (4) his willingness to secure local counsel and to comply with Rule XIV.
Nothing further occurred in this lawsuit until two years later when the trial court granted Palin’s motion to strike R.A.P.’s and B.A.R.’s answers. The court then entered a default judgment finding R.A.P. owed Palin $11,308.80 in damages, declaring the non competition and customer list issues as moot and further holding all remaining disputes between the parties had been adjudicated. R.A.P. and B.A.R. filed no motion to set aside the default judgment under ARCP 55(c), but merely filed a notice of appeal instead.
In this appeal, R.A.P. and B.A.R. generally argue the trial court’s enforcement of the Rule XIV requirements is too harsh and that the goals and policies of ARCP 55 would be furthered by remanding this cause for trial on the merits. In this connection, they claim a meritorious defense exists and that hiring of out-of-state counsel in these circumstances constituted excusable neglect. Finally, B.A.R. argues R.A.P.’s timely answer should inure to B.A.R.’s benefit because both the defendants had a timely common answer. None of these arguments were raised below, and as Palin points out, this court has repeatedly held that it will not countenance arguments raised for the first time on appeal. Lytle v. Wal-Mart, 309 Ark. 139, 827 S.W.2d 652 (1992). Because R.A.P. and B.A.R. failed to present these issues below, we affirm. | [
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GkifKIN Smiti-i, Chief Justice.
November 23, 1946, Angelo and Alice Zini contracted with Holloway and Carrie Gantt to sell- them Lot Five of Block Two, Callo-way Addition to Little Rock, for which the Gantts were to pay $750, plus special improvement district taxes. A cash payment of $200 was acknowledged, the balance to be paid $12 per month including interest at six percent. Twenty payments were made, leaving $351.90 due Sept. 21, 1948, if the contract acceleration clause could have been invoked.
On May 24th, 1949, the purchasers sued for cancellation of note and contract, and for reimbursement of sums they had paid, with interest. The Chancellor sustained a demurrer to the complaint, resulting in this appeal.
The plaintiffs alleged that title to the property — the lot presumptively includes a residence — -was “presently” vested in Street Improvement District No. 376 by reason of tax forfeitures, sales, and confirmation after the time for redemption had expired. Ark. Stat’s, § 20-1144. Assessments for subsequent years were said to be unpaid.
A further allegation was that the property was subject to liens in favor of District 376 Annex for the years 1933 to 1942; that foreclosure decrees for 1933 to 1938 taxes were on record, and that the District’s title as purchaser was confirmed January 27, 1947. A commissioner’s deed had been issued to the District, although the period of redemption had not expired. The plaintiffs contended that delinquencies in District 376 were $447.35 and in the Annex $582.50, — a total of $1,029.85. TJnfore-closed liens in favor of Sewer District 102 were mentioned.
The Zinis, in procuring the contract, [the complaint asserts] “willfully, intentionally, and fraudulently failed and refused to divulge to the plaintiffs the fact that interests of the sellers, if any, had been divested; but on the contrary [the Zinis] willfully represented that they were capable of conveying title by deed upon payment of the item, of $750 representing the purchase price,”
Wliile the Purchasers ’ Agreement recites that the buyers were to pay to the sellers $750, “plus special improvement district taxes,” payable $200 cash and the balance by note, clearly it was not intended by buyer or seller that the taxes should be included in the note — as, standing alone, the language would indicate. The contract does not expressly say that appellees were placing the Gantts in possession, although there is the statement that upon default in payment the purchasers will surrender possession. After dealing with Zini and his wife the appellants agreed with the improvement districts to discharge the delinquent taxes through payments of $60 per month.
We deal with allegations of .the complaint that ap-pellees, when the contract was made, “knew that they had been divested of all interest or equity [including the equity of redemption], and willfully and fraudulently represented to appellants that they were in a position to convey title.” As evidence of this there was a contractual paragraph pledging execution of a quitclaim deed when the obligations were discharged.
In Dunnivan v. Hughes, 86 Ark. 44-3, 111 S. W. 271, Judge Battle said that where, at the time a vendor of lands executed his bond for title, he was without title to or interest in the property, and the vendee did not acquire possession of it, the vendor would be liable in damages for a breach of such bond.
The rule of law charging a purchaser of real property with knowledge of facts disclosed by the chain of his title where a deed has been executed and delivered, or tendered, is less rigid where contracts or bonds for title are involved; and where fraud has been practiced in the procurement of a contract the buyer may, when convinced that the misconduct will not be rectified, sue for rescission. This is true in particular where there are to be express covenants of title in a deed not yet ready for delivery, or where from the language of a bond for title the implication of ownership in respect of the subject-matter attaches. See Granison v. Morets, 211 Ark. 32, 198 S. W. 2d 999; Sutton v. Ford, 215 Ark. 269, 220 S. W. 2d 125.
It is difficult for members of a Court to lay aside personal knowledge of general practices in improvement districts allowing owners of property preferential consideration to the exclusion of strangers when forfeitures have resulted in foreclosure and confirmation; and yet, in a particular case, we do not know that the Commissioners would withhold the sale of a lot. So here we cannot say that the Zinis would have been preferred. Wilson v. Curb & Gutter Improvement District No. 406, 213 Ark. 662, 212 S. W. 2d 351. The complaint alleges that the defendants had lost title, both legal and equitable, and the demurrer must be tested by its assertions.
In dismissing the action for want of equity and affirmatively sustaining the demurrer, the trial Court observed that the allegations did not entitle the plaintiffs <£to the relief prayed for.” This expression includes an inferential finding that appellants’ contract was to assume payment of the improvement district taxes, or to take the property subject to these obligations. We agree with this determination. This does not, however, dispose of the contention that the Zinis fraudulently represented that they were title-holders and that they concealed from plaintiffs the true status of the property. For this reason the decree must be reversed, with an order remanding the cause for trial.
Justice McFaddin concurs. | [
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Conley Byrd, Justice.
This is a case of slip and fall on ice and snow by a business invitee. From a judgment upon a jury verdict in favor of appellees Harrol L. Newgent and wife the appellants Ralph M. Kuykendall, Crestón B. Fendley and J. D. Ashley, d/b/a Razorback Drive Inn No. 2 bring this appeal. For reversal they contend that the trial court should have directed a verdict in their favor because (1) Newgent assumed the risk; (2) there was no proof that appellants were guilty of any negligence; and (3) a landowner is not liable for open and obvious hazards due to natural accumulations of ice and snow. We find no merit in any contention.
The record shows that appellants keep their restaurant open 24 hours a day. There is a front entrance for the appellant’s customers and a delivery entrance for supplies received. The delivery entrance has a slope of seven and three-quarters inches in a distance of four feet. The parking area adjacent to the delivery entrance is fairly level.
U. S. Climatological Data reflects snow and ice conditions on January 6th and 7th, 1973 with .4 inches of precipitation. The last measurable trace of precipitation of ice and snow was between 12:00 and 1:00 p.m. on January 6th.
Newgent testified that he was working for Brown Packing Company on January 7th. His duties as such employee required him to deliver meat to appellants which he did around' 8:30 a.m. on January 7th. He drove the truck near the delivery entrance and carried in one box. The next box contained a hind quarter of beef weighing from 80 to 100 lbs. He placed this box on his shoulder and as he started in his feet slipped forward and the box fell on top of him. With reference to Newgent’s knowledge of the conditions, the record shows:
“A. [Mr. Newgent] I started walking to the door, approaching the door, on the ice being as careful as possible knowing the bad conditions and also ice on the steps and stepped onto the ice and snow and the box came down on top of me.
,Q. [Mr. Davis] The part we’re particularly interested in is that you said ‘being as careful as possible knowing the bad conditions’ and there’s no question you say the conditions were bad?
A. Yes, sir, they were.
Q. You later told me that you felt there was approximately one inch of ice and snow all over the parking area in every part you could see in the — a picture similar to the ones we’ve introduced.
A. Yes, sir, it was covered with ice.”
When asked on cross-examination if it was his decision to walk across the icy spot, he replied: ‘‘the only decision I had to make was to keep my job.” On redirect he testified that when he fell, he did not know the delivery entrance had that much slope.
Newgent’s lack of knowledge of the slope would certainly make a fact issue on the assumption of risk. That doctrine depends upon actual knowledge of the risk. See McDonald v. Hickman, 252 Ark. 300, 478 S.W. 2d 753 (1972). While Newgent may have been guilty of some negligence, we cannot say as a matter of law that such negligence exceeded that of appellants. Such issues are ordinarily a question of fact for the jury. See McDonald v. Hickman, supra.
The duties of owners and occupiers of land to business invitees usually end when the danger is either known or obvious to the invitee. However, most authorities; see Prosser on Torts, Invitee § 61 (4th ed. 1971); 2 Harper and James, The Law of Torts § 27.13 (1956), and Restatement of Torts 2d § 343A (1965); recognize that under some circumstances a possessor of land may owe a duty to the business invitee despite the knowledge of the latter. To the contrary see Sidle v. Humphrey, 13 Ohio St. 2d 45, 42 Ohio Ops. 2d 96, 233 N.E. 2d 589, 32 A.L.R. 3d 1 (1968). Prosser on Torts, supra, explains the landowner’s duties under those exceptional circumstances in this language:
. .In any case where the occupier, as a reasonable man, should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required. This is true, for example, where there is reason to expect that the invitee’s attention will be distracted, as by goods on display, or after lapse of time he may forget the existence of the condition, even though he has discovered it or been warned; or where the condition is one which would not reasonably be expected, and for some reason, such as an arm full of bundles, it may be anticipated that the visitor will not be looking for it It is also true where the condition is one such as icy steps, which cannot be negotiated with reasonable safety even though the invitee is fully aware of it, and, because the premises are held open to him for his use, it is to be expected that he will nevertheless proceed to encounter it . . . ”
Appellants here argue that since ice and snow in Arkansas are of an unexpected nature and short but hazardous duration we should not hold them liable as landowners for open and obvious hazards due to natural accumulations of ice and snow. We need not here determine whether a landowner would owe a duty to an invitee because of the accumulation of ice and snow on a parking lot nor whether the landowner would owe a duty to an invitee using an entrance way during such a storm or immediately thereafter, for the proof here shows that during the operation of a 24 hour business the accumulated ice and snow was permitted to remain upon a sloping entrance way for a period of some 18 to 20 hours. It would appear under those circumstances that the landowner should have anticipated that the dangerous condition would cause physical harm to one required to use the entrance way notwithstanding the known or obvious danger.
Affirmed.
Harris, C.J., and Holt, J., not participating. | [
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George Rose Smith, J.
This is a proceeding brought by the appellee Malcolm McFadden to obtain the dissolution of an insolvent partnership in which he and the appellant A. 0. Sims were partners. The questions presented by this appeal are whether the chancellor sufficiently protected Sims’ homestead and whether the decree correctly adjudicated the priorities of the firm’s various creditors.
On April 1,1948, McFadden and Sims formed a partnership to operate an automobile agency in Searcy. At that time Sims and his wife jointly owned a parcel of urban property on which were situated their dwelling and also a business building in which Sims had been conducting a garage business. About a year earlier the couple had mortgaged this property to Mrs. Sims’ brother, M. M. Garrison, to secure a debt of $5,500. In the court below Garrison asked that his mortgage be foreclosed, and the court granted that relief. No one now disputes the priority of Garrison’s mortgage over the claims of other creditors.
McFadden testified that when the partnership was formed Sims agreed to contribute this real estate to the venture. Sims denies this, saying that the firm was merely to occupy the premises rent free. Every one agrees that the partnership did occupy the business building on the parcel of land and that the Sims family continued to make their home in the dwelling house. We think the clear preponderance of the testimony supports the chancellor’s finding that Sims agreed to contribute to the business all the real estate except his dwelling house. On two occasions the firm gave financial statements listing the parcel of land as a partnership asset. In November of 1948 the partners signed a memorandum assuming the Garrison mortgage and reciting that title would vest in tlie partnership when the mortgage was paid. Thereafter a payment of $250 upon the mortgage was made with partnership funds. These facts leave us with no doubt that the commercial part of the real estate was contributed by Sims to the firm when it began business.
In spite of this evidence Sims insists that he could not validly turn his homestead over to the firm, since our statute provides that any conveyance of a homestead is void if the wife does not join in the deed. Ark. Stats. 3 947, § 50-415. Sims ’ theory is that since the area of this entire parcel is less than the constitutional minimum of a quarter of an acre for a homestead, he could not devote a part of it to commercial purposes without his wife’s joinder. But the answer is that we are not dealing with a conveyance of a homestead. Instead, Sims’ conduct amounted to an abandonment of his homestead right in the area devoted to commercial use, and we have often held that a husband may abandon his homestead without his wife’s consent. Sidway v. Lawson, 58 Ark. 117, 23 S. W. 648; Stewart v. Pritchard, 101 Ark. 101, 141 S. W. 505, 37 L. R. A. (N. S.) 807.
Thus Sims could and did contribute to the partnership all the tract of land except his dwelling and its curtilage. The entire tract was mortgaged to Garrison, who asks that his mortgage be foreclosed. It seems likely that the proceeds of sale will materially exceed the amount of the mortgage debt. The most serious question in the case concerns the proper disposition of the surplus after the mortgage debt has been paid.
It is shown by uncontradicted testimony that the dwelling house and its surrounding yard comprise 26.5% of the total value of the tract. The chancellor, taking the view that Garrison should be required to proceed first against the security which he alone could reach, directed that the first 26.5% of the proceeds of sale should be applied upon the mortgage debt. The decree provides that the remaining 73.5% of the proceeds shall be applied first to satisfy the rest of the mortgage debt, and any remaining balance shall be divided equally between Mrs. Sims (whose interest as a tenant by the entirety is not subject to lier husband’s debts) and the common creditors of the partnership.
This decree would ordinarily be a proper marshaling of tlie assets, since the general rule is to require a secured creditor to proceed first against that part of his security that the common creditors cannot reach. But when a homestead is involved there is a well recognized exception to this rule. One whose homestead is mortgaged along with other property is entitled to demand that the mortgagee proceed first against the other property. Bank of Hoxie v. Graham, 184 Ark. 1065, 44 S. W. 2d 1099. In this situation a common creditor cannot invoke the ordinary rule that requires the secured creditor to look first to that part of his security that the other creditors cannot reach. Bank of Luverne v. Turk, 222 Ala. 549, 133 So. 52; Mounce v. Wightman, 29 Ariz., 567, 243 P. 415. The law is so solicitous of the homestead right that the secured creditor will be required to exhaust his non-exempt security first, even though this procedure entails a loss to the common creditors. Nolan v. Nolan, 155 Calif. 476, 101 P. 520; Kerens Nat. Bk. v. Stockton, 120 Tex. 546, 40 S. W. 2d 7.
In view of these principles we must reverse that part of the decree that makes the homestead itself primarily liable for the mortgage debt. The proceeds of sale will be applied first to the satisfaction of the mortgage. Next, 26.5% of the original proceeds of sale (or whatever lesser amount is all that remains) will be paid to the Simses as their homestead interest. This 26.5% is in its entirety exempt from the claims of common creditors. Mrs. Sims’ share is of course not subject to the claims of her husband’s creditors. Sims’ own share is also exempt, for we have held that when a homestead is sold at a forced sale, as distinguished from a voluntary sale, the debtor’s share of the proceeds is exempt if he intends to use it to acquire another homestead. Simpson v. Biffle, 63 Ark. 289, 38 S. W. 345; see also, Franklin Fire Ins. Co. v. Butts, 184 Ark. 263, 42 S. W. 2d 559. Sims has insisted upon his homestead rights from the inception of this suit, and we think he should be allowed a reasonable time in which to invest liis sliare of tlie proceeds in another homestead.
After the payment of the 26.5% to the Simses any remaining balance will be divided equally between Mrs. Sims as co-owner of the property and the creditors of the partnership. We think it necessary to add that since the tenancy by the entirety attaches to the proceeds of sale it is perhaps true that either Mrs. Sims or the creditors might have demanded that this remaining part of the purchase price be held by the court until the tenancy by the entirety is terminated by the death of either the husband or the wife. But neither the creditors nor Mrs. Sims has made, this suggestion, and we treat their silence as an acquiescence in the chancellor’s decision to divide the sum equally.
The other provisions of the decree are correct. Here the controversies arise from an unrecorded chattel mortgage given by Sims to his father-in-law, 0. M. Garrison, in 1946 — long before the partnership was organized. This mortgage covered certain garage equipment that Sims later contributed to the original capital of the firm. In August of 1949 the firm gave a chattel mortgage to the Security Bank, conveying “all garage equipment contained in an automobile garage, show room and paint shop located at 1512 East Race Street, Searcy, Arkansas . . . ” Under our decisions this is a valid description. Hughes, Arkansas Mortgages, § 63. The bank recorded its mortgage promptly, while Garrison’s was not recorded until after this suit was filed. The chancellor correctly gave priority to the instrument first placed of record. Ark. Stats., § 51-1002.
The remaining issue is that of priority between Garrison’s chattel mortgage and McFadden’s claim for capital advanced in addition to his original contribution. The partners at first made capital contributions of equal value, but when the firm began to encounter financial problems McFadden from time to time advanced an additional $5,300, Sims agreeing that the firm would repajo these advances. The decree gives McFadden judgment for $5,300 and makes it subordinate to all other claims except Garrison’s judgment under Ms chattel mortgage, over wliicli McFadden is awarded priority.
An unrecorded mortgage is good in Arkansas against the mortgagor, his heirs, general creditors having no specific lien, and others who merely stand in the mortgagor’s shoes. But it is not good against strangers. Hughes, supra, % 136. The question is therefore whether a stranger acquired rights in the property before the mortgage was recorded. The answer must be in the affirmative. Sims contributed the mortgaged property to the partnership, and McFadden contributed a like amount of capital upon the assumption that the property was unencumbered. Under the Uniform Partnership Act the partners became tenants in partnership as to this property. Ark. Stats., § 65-125. As such a tenant Sims no longer had any individual property in any specific asset of the partnership, his interest being limited to his share of the profits and surplus. § 65-126. The firm itself acquired title to the property, and by the terms of the Act a partnership can receive and convey property in its partnership name. § 65-108. In view of this provision it is generally held that at least as to conveyances the Act treats a partnership as an entity rather than as an aggregate of its members. 7 U. L. A. § 6, note 8. Hence the partnership took the property free of the unrecorded mortgage, and a partnership creditor stands in the same position. McFadden’s claim for capital contributions is a partnership debt, § 65-140 (b, III), and as to partnership assets it is entitled to priority over Garrison’s claim against Sims as an individual. § 65-140 (h).
As to the distribution of the real estate proceeds the decree is reversed and the cause remanded. In other respects the decree is affirmed. | [
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George Rose Smith, Justice.
The appellant, in a single point for reversal, contends that the trial judge erred in admitting into evidence certain oral testimony in violation of the parol evidence rule.
In 1971 the two parties entered into a written contract by which Peevy sold to Bell, for $5,000, "the Tandy Homes Franchise” for Springdale and the surrounding area. Some five months later Bell brought this action for breach of contract. Bell asserts that under the agreement Peevv was to assign to Bell three existing contracts for the construction of Tandy homes, upon which (according to Peevy’s representations) Bell would make a profit of about $2,500 each. Bell alleges a breach of contract, in that he did not receive the three contracts. The case was submitted to a jury, which awarded Bell $3,500 damages.
Opposing counsel are not really in disagreement about the law. The parol evidence rule excludes oral testimony that would contradict or vary the terms of a written contract, but the rule does not preclude an oral explanation of an ambiguity in the agreement. Kerby v. Feild, 183 Ark. 714, 38 S.W. 2d 308 (1931). The question here is whether the parties’ written contract is so ambiguous as to be open to explanation under the rule.
We have no doubt that it is. The effective language in the agreement simply recites that Peevy sells to Bell “the Tandy Homes Franchise” in the Springdale area. There is not one additional syllable in the instrument explaining either what a Tandy home is or what the franchise consists of. It was therefore necessary for the litigants to explain to the jury (without objection) that Tandy Homes are prefabricated or pre-cut structures built with materials that are sold exclusively by a Tulsa, Oklahoma, company. It was also necessary for the jury to be told that the “franchise” vests in its holder the sole right to purchase Tandy components and erect Tandy homes in the franchised area.
According to the testimony, the Tandy franchise carried with it the three existing contracts held by Peevy. Bell, the purchaser, testified that Peevy said “the franchise consisted of [the] sole right to purchase from Tandy Homes for the area and to use their advertising, and it also included all existing contracts which he had, to build Tandy Homes, and since I would be franchise dealer, there is no way anyone else could build those homes.”
Peevy’s testimony is actually to the same effect, as will be seen from this excerpt from his direct examination:
Q. Did you make any agreement to let Mr. Bell have these contracts?
A. Yes, I told Mr. Bell he could have them, because I couldn’t use them.
Q. Would you explain that?
A. Well, they were no earthly good to me, really, if I couldn’t buy the material from Southern Mills, which is like I say, a subsidiary of Tandy. . . .
Later in his direct examination Peevy said, in response to a leading question, that he did not offer the three contracts as an inducement to the sale. “I only sold the franchise to him. I didn’t sell him any contracts.”
In substance Peevy contends that the parol evidence rule allows the parties to show what a Tandy home is and to show that the holder of the franchise has the exclusive right to buy Tandy materials, but the rule does not allow oral proof of the additional and related fact that the transfer of the franchise carries with it outstanding contracts that were concededly of no further value to the transferor. The trial judge was right in rejecting that contention. In view of the testimony the meaning of the contract was a jury question. Triska v. Savage, 219 Ark. 80, 239 S.W. 2d 1018 (1951).
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Lyle Brown, Justice.
Appellant’s petition for a Rule I hearing was denied under Rule I (C), the court holding that the records of the case conclusively showed petitioner was entitled to no relief. Appellant’s points for reversal are that (1) he was arrested without a warrant, that (2) he was not given the Miranda warnings prior to interrogation, that (3) he was threatened by the prosecuting attorney, and that (4) the State failed to set bond.
In disposing of the petition under Rule I (C) the court considered several items of record: information, criminal docket sheet, amendment to information, petition for dismissal of charge, testimony of appellant on motion to dismiss, testimony of officers Richardson and Causey on motion to dismiss, testimony of officer Richardson at trial, and the testimony of appellant at an in camera hearing. We shall refer to a number of those items in disposing of the points for reversal.
Appellant was accused of fraudulently obtaining lodging and services at a Blytheville motel. He was also charged with being a fourth offender. He was returned to Blythe-ville from West Memphis, tried, and given two years.
Point I. Appellant was arrested without a warrant. At the hearing on his motion to dismiss the charges, appellant conceded that he was acquainted with the charges filed against him and that he knew that fact at the time he was arrested. Officer Richardson testified that when he arrested appellant at West Memphis (the appellant there using the name of Harris R. Reed), the officer had a warrant, that he read the instrument to appellant, and told him the nature of the charges. That warrant was issued by the Blytheville Municipal Court. Officer Caus- ey testified that when the charges were filed in circuit court, another warrant was issued and served on appellant.
Point II. Appellant was not given the Miranda warnings prior to interrogation. Officer Richardson testified that when appellant was arrested, appellant started talking without being questioned. “I personally advised him of his constitutional rights before he started saying anything that might incriminate him.” Furthermore, no incriminating statements charged to the appellant were ever introduced.
Point III. Appellant was threatened by the prosecuting attorney. Appellant said he was taken to the office of the deputy prosecuting attorney and was there threatened. “[He] told me what he was going to do to me at the trial.” There is not one scintilla of evidence that any such threat caused appellant to make an admission against interest, nor is there any evidence to show that any such threat caused appellant to take any other action adverse to his interest.
Point IV. The State failed to set bail for appellant's release pending trial. Nowhere in the record is it shown that appellant or his attorney ever mentioned bail until the pre-trial hearing, which was shortly before the trial. Appellant did not offer to show that he was able to make bail; in fact he qualified as a pauper. Additionally, the failure to set bail is no ground for reversal of the conviction. Small v. City of Little Rock, 253 Ark. 7, 484 S.W. 2d 81 (1972).
Affirmed.
Fogleman, J., not participating. | [
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Ed. F. McFaddin, Justice.
Appellee, Mildes, recovered judgment against Kern-Limerick, Inc. for $6,000, being $2,000 damages for defective repair of a WK? tractor, and $4,000 damages for fraudulent misrepresentation regarding an HD tractor. To reverse that judgment there is this appeal.
FACTS
Mildes — a resident of Booneville, Arkansas — purchased a secondhand WK tractor for $700 in July, .1947; and at his order Kern-Limerick, Inc. — a large road implement firm, maintaining repair departments, etc. in Little Bock, Arkansas — undertook to repair and re condition the tractor and add a “dozer attachment” thereto. Kern-Limerick’s hill was $4,403.13, of-which Mikles paid $2,000 in cash, and the balance was charged to him on open account.
While in the course of having the WK tractor repaired, Mikles saw that Kern-Limerick had for sale a secondhand HD tractor; and Mikles agreed to purchase this for $5,300, being $1,000 in cash and $4,300 on deferred payments. The contract of sale, signed by Mikles, described the tractor as being secondhand, and stated the deferred payments to be due: $500 on November 10, 1947, $500 on December 10, 1947, $660 on January 10, 1948, and a like sum each month thereafter until the full indebtedness and interest be paid. The contract also contained these provisions:
“The undersigned hereby acknowledges receipt of a full and true copy of this order and that no statements or representations have been made either verbally or written which are not expressed herein.
“It is expressly understood and agreed that the title to the above described goods shall be retained in Kern-Limerick, Inc., until the entire purchase price as above set out has been fully paid in cash.”
Mikles used the two tractors in constructing water ponds for farmers who were cooperating with the Government “Triple A” program; and also he used the tractors for pulling trees, building roads and other purposes. Both tractors gave Mikles considerable trouble by breakdowns, which began the first week of use and continued at frequent intervals. Mikles regularly notified Kern-Limerick of the breakdown of each tractor, and that company regularly sent a mechanic with parts to make the necessary repairs. The breakdowns and repairs continued; and in January or February, 1948, Mikles, after returning the WK tractor for further repairs, had a telephone conversation with Kern-Limerick, in which he asked for an adjustment on the amount charged him for repairs. On February 4, 1948, Kern-Limerick wrote Mikles a letter containing, inter alia, the following- paragraph:
“your open account on our books as of January 31, 1948, totals $4,029.75 which includes the balance of $2,403.13 on the WK Tractor and Dozer, and repair and supply invoices of $1,626.62. In addition, you owe on the HD-7 Tractor notes totaling $4,300.00.”
In the letter, Kern-Limerick offered to cancel $1,146.40 of the repair account of $1,626.62 and then stated:
“Since you sent your WK into us, we have taken the engine down and it is very apparent that you either have not used the right oil or have neglected keeping it properly oiled. We are having a new crank shaft installed and believe the best sale that can be made will be about $3,000.
“If you want us to do so, we will try to sell it for $3,000 and apply it to your account which stands as follows with the adjustments made above:
“Balance on WK Tractor.$2,403.13
“Repairs and supply account. 480.22
$2,883.35
“Allowance for Tractor.$3,000.00
“Your balance.$ 116.65
“Balance due on your HD-7.$4,300.00”
Mikles wrote Kern-Limerick on February 6, 1948, and had a telephone conversation; and then on February 18, 1948, Mikles again wrote Kern-Limerick:
“The WK tractor should be worth as much as it cost to have it repaired as the tractor is not figured in at all, so try to get $4,000 for it and that will let me get along a little better on the LID-7 and will say to you just as soon as my tractor can go to work I will mail you a payment and will clean up as soon as I can. Thanking you for past favors and service.”
Kern-Limerick repaired the WK tractor at a cost of $200 and sold it for $3,100; and allowed Mikles a credit of $3,000 for the sale. Mikles never complained in writing of the sale price; and in his pleadings stated that the sale price was $3,000. At the trial he sought to claim that he should have received $4,000; bnt it was stipulated (as hereinafter quoted) that the entire balance of $4,300 was due and unpaid on the HD tractor.
Mikles continued to use the HD tractor, but made no payments. Kern-Limerick insisted on payment; and on July 8, 1948, Mikles wrote Kern-Limerick a letter which we copy in full:
“As per your request, this letter will explain the tractor condition and the way I can finish paying for the tractor as outlined over the telephone.
“I bought the tractor last summer and promised to pay for it by the month as I had all the work I could do. I have had too much trouble with this tractor and have been down so much with it, I could not make the payments. I have got the tractor in good condition now. Your man thinks it should go on*and work which I think it will. I have all the work I can do this summer if this tractor will just stay running. The last few days I have been out about one thousand dollars on this tractor. I had an agreement with Mr. Limerick by telephone to pay cash for the work I would have done on the tractor, and as soon as I could make a payday with it I would start my payments and get it paid out. I have had the service man here twice before this time and am just now getting-started. I am on a job which consists of three parts, and as I complete each part I can draw my money. I lack about three working days having the first part done. As soon as this is done I will mail you some money, and as fast as I can I will pay this tractor out. I have hit it pretty hard with this tractor not working any better than it has. This was the way I was going to pay for it and every time your man came to work on the tractor I had my operator help him, so you can see I have had a costly thing and haven’t had anything coming in to speak of.
“Mr. Kern, I want to pay for this tractor and will do so just as fast as I can.
“Thanking you for" your past services and being lenient with me.”
After receiving that letter, Kern-Limerick delayed until July 22nd; and receiving no payment, filed replevin suit and repossessed the HD tractor under the title retaining contract. Mikles then filed counterclaim, alleging (a) that the repair job on the WK tractor was defective, and (b) that Kern-Limerick had defrauded him in his purchase of the HD tractor by falsely representing it to be in good condition, etc. Mikles claimed damages of the (a) amount paid workmen when tractors were broken, (b) cost of repairs, and (c) profits he would have made from the use of the tractors if they had not broken. Kern-Limerick denied the allegations of the counterclaim and pleaded, inter alia:
“. . . That the defendant' has waived any claim, action or cause of action which he had or might have- had against the plaintiff.”
At the trial it was stipulated (1) that the entire series of notes — totaling $4,300 — for the HD tractor was past due and unpaid and also (2)
“It is further stipulated that under the above statement of facts the plaintiff at this time is entitled to a judgment against the defendant for possession of the tractor and equipment and that the only matter in issue is the question of damages set up by Mikles in his cross complaint. ’ ’
As previously stated, the judgment — based on the jury verdict — was for Mikles for $6,000 on his counterclaim ; and this appeal ensued.
OPINION
Many questions are presented in the excellent briefs; but we find it unnecessary to consider any of them except Kern-Limerick’s request for an instructed verdict, because an answer to that question is determinative of the case and requires a reversal and dismissal. We have stated the facts in detail and copied from the correspondence at length, because Mikles’ letter of July 8th- — copied above in full — and the three-day extension which Kern-Limerick granted, constituted a waiver of the damages attempted to be claimed by Mikles.
The cross complaint of Mikles was on two counts: (a) failure to properly repair the WK tractor, and (b) fraudulent misrepresentations as to condition of the HD tractor. But Mikles waived any cause of action he might have had for damages on either of these counts: by his letter of February 18, he consented to the sale of the WK tractor and the crediting of the proceeds to his account ; and by his letter of July 8, he agreed to pay for the HD tractor if given three days (which was granted). The case at bar is ruled by our cases of Schichtl v. Bowser, 175 Ark. 1141, 1 S. W. 2d 816, and Pate v. Mc-Williams, 193 Ark. 620, 101 S. W. 2d 794.
In SchicMl v. Bowser, supra, the buyer claimed damages for breach of warranty of pumping equipment. The evidence showed that the buyer used the equipment for a year, discovered all of the claimed defects, and when pressed for payment, requested additional time and promised payment. In that case the trial court instructed a verdict for the seller for the balance due on the pumping equipment and we affirmed, saying:
“The court instructed a verdict for appellee, and properly so, because appellant waived his right, to rely upon the defects in the outfit under his guaranty, by writing the letter to appellee’s attorney of date April 26, 1926, in which he made an absolute promise to pay the balance of the purchase money, irrespective of any defects he had complained of prior to that time.”
In Pate v. McWilliams, supra, the seller brought suit on a title retaining contract involving automobiles; and the buyers cross complained for damages, because of alleged fraudulent misrepresentations inducing the sale. The evidence showed that the buyers used the cars from May until December; and after having received full knowledge that the alleged representations were not true, the buyers continued to make payments on the automobiles. On such evidence the trial court instructed a verdict for the seller in his action for the balance of the contract price; and this Court affirmed, saying: .
. . . appellants waived the right to defend on the ground of a fraudulent procurement of the contract, by making no complaint and by using the trucks and making monthly payments thereon long after they claimed to have discovered that the Dodge truck consumed more gas and oil than the Chevrolet trucks had consumed.”
See, also, McDonough v. Williams, 77 Ark. 261, 92 S. W. 783, 8 L. L. R., N. S. 452, 7 Ann. Cas. 276, as a case involving waiver; and also 24 Am. Jur. 34, et seq.; 56 Am. Jur. 122, et seq.; and 67 C. J. 289, et seq. Other cases on waiver involving* sales are collected in West’s Arkansas Digest, “Sales,” key number 50.
Even if we assume (a) that the repair job on the WK tractor was defective, so as to give Mikles a cause of action; (b) that the condition of the HD tractor was fraudulently misrepresented to Mikles, so as to give him a cause of action for fraud; and (c) that he had not received the amount of credit he wanted for the WK tractor, nevertheless, Mikles knew all these matters when he wrote Kern-Limerick the letter of July 8th, in which he asked for a three-day extension for payment, which request was granted. When he wrote that letter with full knowledge of all the things now alleged, and asked for further indulgence for payment, such conduct constituted a waiver of what he sought to assert in his cross complaint, lie testified at the trial that he wrote that letter and “meant it too.” The evidence as to waiver— being based on Mildes own letters — is undisputed; and therefore an instruction should have been given in favor of Kern-Limerick on Mildes’ cross complaint.
The judgment of the Circuit Court in favor of Mildes is reversed and his alleged cause of action is dismissed.
These were the initials used by the witnesses in describing the tractors; and we use the same initials for convenient identification. To describe the tractors in detail as to make, etc., would be of no benefit to this opinion.
For clarity we will refer to the parties by name, rather than by status in the litigation.
Brunswick v. Culberson, 178 Ark. 957, 12 S. W. 2d 903, and Galloway v. Puryear, 179 Ark. 524, 16 S. W. 2d 1000, are cases holding that a counter-claim may he filed in a replevin action.
The said representations were claimed to be that the Dodge trucks would consume less gasoline and oil than the Chevrolet trucks.
The fact that it was stipulated by Mikles at the trial that the notes totaling $4,300 were past due and unpaid on the HD tractor shows that he was then making no claim for credit on the notes for any overplus from the sale of the WK tractor.
The letter, as previously copied in full, says: “ . . . I lack about three working days having the first part done, and as soon as this is done I will mail you. some money.” | [
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Leflar, J.
This is a second appeal, the case having been previously before us in Alexander v. Mason, 216 Ark. 367, 225 S. W. 2d 680. In that decision we reversed the decree originally entered, concluding that there was error in so much of it as cancelled appellees ’ contract to sell the land to appellants and quieted title in appellees. We held that appellants had the rights of purchasers under a bond for title, and our mandate directed the Chancery Court to determine the amount of appellants’ indebtedness, same to be a lien on the lands to be foreclosed if the debt be not paid within a reasonable time to be fixed by that Coiirt.
At the new trial the Chancellor found, on the appellants ’ own evidence, that the contract price of $1,775.48, owed under the 1932 contract for purchase of the land, remained altogether unpaid, and that the 10% contract rate of interest likewise remained altogether unpaid. The amount due was calculated at straight interest, not compounded, and after deducting certain costs payable by appellees was made a lien on the land to be foreclosed if not paid within 90 days. This appeal is on the grounds that the debt was barred by (1) the statute of limitations and (2) laches.
At the first trial the statute of limitations was expressly pleaded and was an issue in the case. The Chancellor found against appellants on the limitations plea, and on appeal we affirmed his decree except as to the specific points of reversal. These did not inclu.de the statute of limitations issue. On it, we said: “Appellants admit that they are indebted to appellees, and that appellees are entitled to a judgment for the amount of the indebtedness and interest now owing and to foreclosure of the lien therefor if the debt is not paid within a reasonable time to be fixed by the Court.” Our reexamination of the record and briefs filed in the first appeal shows that the quoted conclusion of this Court was entirely justified and correct.
It is not now possible for appellants to rely anew on their old plea of limitations. It is barred by our decision on the first appeal.
As to the plea of laches, the only evidence to sustain it is that appellants for seventeen years, from 1932 until this suit was initiated in 1949, occupied the land without paying rent or any portion of the purchase price or the interest thereon. “It is wfell settled that laches is not mere delay, but is delay that works disadvantage to another. So long as parties are in the same condition, the party claiming the right to the land may press his right at any time within the limits of the law. It is only when he takes no steps to enforce his right' until the condition of the other party has in good faith become so changed that he cannot be restored to his former state, if the right be then enforced, that delay becomes inequitable and operates as estoppel against the assertion of the right.” Jones v. Temple, 126 Ark. 86, 93, 189 S. W. 847, 850. The only disadvantage asserted by appellants, by reason of the delay, is that they will be required to pay the interest which they contracted to pay, on the unpaid purchase price. That is not the kind of disadvantage that will sustain a finding of laches. There is no improper hardship in requiring appellants to pay the agreed price for the land, with the rate of interest which they contracted to pay, even though they have grown accustomed to an easier system by reason of paying nothing while they lived on the land for seventeen years.
The decree is affirmed. | [
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Smith, J.
This suit was brought by Appellee to recover damages for the breach of a contract evidenced by the following writing:
“December 14, 1928.
“To — Mr. Joe Hocott.
‘ ‘ To whom it may concern:
“This is to certify, that I, Ted Dougan, agree to furnish my (8) piece orchestra in Helena, Ark., for (5) nights, Dec. 24, 25, 27, 29, 31 resp., for the sum of $515 and furnish all transportation and expenses.
“Money to be received by me when above party receives same from employer.
“Ted Dougan
“Orchestra.
“Joe Hocott,
‘ ‘ Manager.
‘ ‘ Slick Hurt
“Witness.”
The contentions of the parties to this contract in regard to this purpose and interpretation is stated in the instruction under which the case was submitted to the jury, which reads as follows:
“1. Gentlemen of the jury, this is a suit by Ted Dougan, as plaintiff, against Joe Hocott, as defendant. The plaintiff claims ¡that he made a contract with the defendant in writing by the terms of which he, the plaintiff, was to furnish his band to perform services at Helena and that after the contract was made the defendant called him and canceled the contract without his assent. The defendant claims that he did not make a contract but that the instrument they signed was a mere negotiation which would lead to a contract if he secured the employment at Helena.
“Now, gentlemen, if you find from a preponderance of the testimony that the instrument the parties signed was in fact a completed contract, and further that it was not canceled by mutual consent, then you will find for the plaintiff. If you find, on the other hand, that the instrument they signed was not a contract but a negotiation which would ultimately lead to a contract if the employment was secured, in that event you will find for the defendant ; or if you find that it was a completed contract but that when defendant, notified plaintiff that the employment had not been secured in Helena and the plaintiff assented to that, then in that event you will find for the defendant. Now, if you find for the plaintiff, you will find for him in such sum as you find to be due him less the expenses to Helena and less the amount you find he earned with his band, during the period which he would have earned in Helena had he gone there. ’ ’
As appears from this instruction, appellee is the leader of an orchestra. It consists of eight instruments, including the one which he played himself. He testified that the above writing evidenced a contract which he made with appellant, and that in order to fill the engagement he canceled another which he had to play at the banquet of the Arkansas Sheriffs’ Association on the night of December 26, for which service he would have received $125. Appellee also testified that appellant did not notify him that the engagement at Helena could not be filled until December 22d, and he was thereafter able to secure only one other engagement for his orchestra during ¡the holidays, although he did earn $20 by. playing in another orchestra.
Appellant’s testimony was to the effect that he did not employ appellee to play at Helena, but that he was acting, in the capacity of a booking agent to secure engagements for appellee’s orchestra. That he endeavored to secure the contemplated engagement at Helena, but was unsuccessful in doing so, and that in: this attempt he was acting as appellant’s agent, and the writing.set out above was intended only to evidence the terms upon which he might accept an engagement for appellee’s orchestra to play at Helena on the dates named in the writing.
The instruction set out above correctly submitted this issue of fact to the jury, and the finding for appellee is conclusive of that question.
The instruction also correctly submitted to the jury the proper measure of damages. There is a conflict in the testimony as to the’expenses which would have been incurred in the performance of the contract, but we think the testimony on appellee’s-behalf was sufficient to support a finding'that the net loss sustained was as much as $336.20, for which amount a verdict was returned and judgment rendered.
It is insisted that the contract, if there was one, is void as being- without consideration. But this is not true if appellee’s version of ¡the transaction is accepted, as the jury evidently must have done. Appellee agreed to furnish an eight-piece orchestra for five nights for $515, out of which he was to pay all transportation and expenses, and he testified that he was ready, willing and able to perform the contract.
There appears to be no error, and the judgment must be affirmed, and it is so ordered. | [
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Conley Byrd, Justice.
The trial court granted a divorce to appellee Roy Reagan on the grounds of personal indignities and awarded alimony to the appellant Wanda J. Reagan in the amount of $250 per month until remarriage or until further order of the court. For reversal the appellant contends:
“1. There was condonation of the conduct alleged;
2. Roy Reagan came into Court with unclean hands; and
3. The grounds of divorce were not established by a preponderance of the evidence.”
The record shows that appellee asked for a divorce on the ground of personal indignities alleged to have occurred prior to March 15, 1971. Appellant filed a general denial and by way of cross complaint alleged non-support and desertion and requested a divorce from bed and board — i.e., separate maintenance.
The proof shows that the parties were married April 1, 1944! They had two sons both of whom were born deaf. The older child died in 1967, and the other would be 21 on his birthday in October, 1972. The parties first separated in December, 1969. In January, 1970, appellee filed an action for divorce and appellant filed an answer and cross-complaint for a divorce. The complaint and cross-complaint were dismissed without prejudice in September 1971. Thereafter, the present action was in stituted in October 1971, alleging a separation in March 1971.
Appellee testified that most of their marital problems revolved around their son Dean, the son’s desire to attend the Church of Christ, appellee’s mother and appellant’s extravagant spending. He stated that if a meal was cooked in his house, he did both the cooking and the cleaning-up afterwards.
Appellee stated that over the years appellant had developed an intolerance for his mother to such an extent that she had prohibited his mother from visiting in his home. As a result his mother went by his office to bring him a Christmas present, he and Dean and appellant having been somewhere together went by the office for just a minute. Appellant started a verbal barrage against his mother and wound up hitting his mother over the head with her purse. This incident was corroborated by Beverly Stubblefield, appellee’s secretary at the time.
Both appellee and Joe Madey, a lawyer, had offices in the Donaghey Building. One evening while appellee was visiting in Mr. Madey’s office near the end of the work day, appellant barged into Mr. Madey’s office and unleashed a verbal barrage on appellee. Mr. Madey was reluctant to repeat the exact language used by appellant but explained to the court if his wife had used the same language against him in the privacy of his bedroom, he would have slapped her.
Witness Gilbert Leigh corroborated still another occasion and time when appellant unleased a verbal barrage and backed her car up and made a run at appellee as if she intended to run over him.
Appellee testified that his mother was deaf and that she attended the Church of Christ where the services were repeated in sign language. Dean had attended church there with his grandmother and this upset appellant. In fact appellant forbade Dean to attend church there. As a result of the conflict, Dean had asked the minister to visit and talk with his parents. At 7:30 p.m. one evening he and Dean arrived home in time to find appellant using a pistol to run off the minister and another visiting minister from Ohio.
There was other testimony by appellee to the effect that he had been hit on the head with a candlestick and a shoe. On one other occasion appellant had attacked him with a knife with the stated purpose of cutting out his “black heart”.
Appellee also testified that appellant did her shopping all over the United States without consulting him. He had received bills from Neiman Marcus in Dallas, Marshall Field’s Company in Chicago and New York, Macy’s in New York and other places in Chicago and Atlanta. Appellant had charged as much as $150 for a pair of shoes, $15 for a pair of hose and $5 for a bar of soap. Appellee says that he would not be aware of the charges until he was threatened with a suit.
Appellee also testified that the hostility between Dean and appellant had grown to such an extent that Dean had lived with his grandmother for the last two years.
Appellee readily admits that after the December, 1969, separation a reconciliation was attempted. However, he says that it was on condition that appellant would improve her attitude toward their son Dean and his mother and that she would stop her extravagant spending. Admittedly, during the period from April, 1970, to March, 1971, the appellee maintained the home place, and appellant lived in a rented apartment. Appellee sometimes spent the night with appellant at the apartment and took her to Memphis with him on some occasions. Appellee says that all efforts toward reconciliation broke off when the appellant surreptitiously forged his name to the title of a 1966 Cadillac and a 1967 Grand Prix and traded them in on a 1971 Grand Prix for herself.
Appellant’s explanation of the cooking was that their son, during his last illness, could not stand the smell of cooking. At that time they started eating out and they continued to eat out with the appellee’s acquiescence. Her explanation of the incident at the office-when she hit appellee’s mother was that she was acting in self-defense. The incident in Joe Madey’s office occurred because she was talking to appellee on the telephone and he hung up on her. As a result she went looking for him and found him in Mr. Madey’s office. She says the incident with Gilbert Leigh occurred because appellee was wining and dining his friends while she was hungry. She does not deny getting the pistol after the ministers but says it was late at night. Her testimony was that she was no more extravagant than appellee — i.e., “He earns a good, great deal of money, and we spend a great deal of money.”
We find no merit in the appellant’s argument that the evidence is insufficient to sustain the chancellor’s award of a divorce nor in the contention that such conduct was condoned.
It is settled law that condonation of past matrimonial offenses is impliedly conditioned upon the future good behavior of the offending spouse, Longinotti v. Longinotti, 169 Ark. 1001, 277 S.W. 41 (1925). Moreover, the forging of titles to two automobiles on a trade for a new one without consent of the other spouse would cause some disharmony in most marriages.
Appellant’s contention that appellee came into court with unclean hands has reference to a proffer of proof made with reference to appellee’s conduct with one June Laney following the March, 1971, separation. The trial court sustained objections to all such testimony on the basis that appellant had not alleged adultery. Appellant does not here argue that the court erred in sustaining the objection to such testimony but merely argues her case as if the testimony had been admitted and considered by the court. The record also shows that the trial commenced March 16, 1972, and was recessed to April 18th. Some testimony was heard and trial was recessed to July 27th. Another recess was granted until August 9th, when the trial was concluded. During all of that time the appellant did not make a request to amend her pleadings. Consequently, in view of the arguments made here, we must consider that the testimony is not before the court and that any error the trial court may have committed in sustaining objections to the testimony is waived.
In the alternative appellant has asked that we increase the $250 per month alimony and that we order a division of the property held by an estate of the entirety. There is a dispute in the testimony as to ,the appellee’s earnings. He and his accountant fixed his last year’s earnings at $10,118.31. Appellant claims that appellee’s income was $42,620.96 at one place and from another formula and at another place in her brief she fixes his income at $24,-968.31. The chancellor in fixing alimony at $250 per month may have accepted the $10,118.31 which would place the alimony at about 30% of appellee’s earnings. Then too the chancellor in fixing the amount of alimony had the benefit of the long drawn out trial. At the time of the temporary order appellant’s earnings were $300 per month, but shortly after the entry of the temporary order allowing $530 per month support appellant lost her employment and thereafter stated that she did not look for work. Thereafter, appellant violated the trial court’s temporary order by making additional charges to appellee and invading appellee’s home and selling the air-conditioners therefrom. Under the circumstances we cannot say that the chancellor abused his discretion in making an award of $250.
Admittedly appellant did not ask in the trial court for a division of the property held by an estate of the entirety. In affirming the decree of the trial court, however, we do so without prejudice to appellant’s right to apply to the trial court for a division.
Affirmed with all costs of the record and briefs being charged to appellee and appellant being responsible for her own counsel fees.
Affirmed.
Fogleman and Holt, JJ., dissent in part. | [
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George Rose Smith, J.
This will contest presents a single question of law. In 1933 the testator, B. B. Mosely, and the appellant, Alva Mosely, were married. In 1940 B. B. Mosely executed a will by which all his property was left to Alva. In 1945 the couple were divorced, and it may be assumed that Alva received a property settlement. Mosely married the appellee Yer-lon Mosely in January of 1949 and died the following June without having revoked the 1940 will. The other appellees, Mosely’s two brothers and heirs at law, are the real contestants of the will, as of course Verlon Mosely is entitled to her (lower whether or not the will is valid. The probate judge refused to probate the will, holding that it was revoked by the divorce and property settlement.
The Probate Code provides that if a testator is divorced after making his will, all provisions in favor of the divorced spouse are revoked. Ark. Stats. 1947, § 60-407. But here the testator died on June 28, 1949, which was three days before the effective date of the Code. § 62-2002. We must therefore follow the law as it existed before the Code took effect.
Our earlier statute provided that no will should he revoked otherwise than by another written instrument executed with the same formalities, or by burning, tearing, cancellation, obliteration, or destruction, either by the testator himself or by some other person in his presence and by his direction and consent. § 60-113. In construing this statute we have uniformly held that the only methods of revoking a will are those enumerated in the statute. Por instance, a testator’s direction that his son destroy a will was held ineffective where the testator did not specify, as the statute requires, that the destruction be in his presence. Reiter v. Carroll, 210 Ark. 841, 198 S. W. 2d 163.
The appellees insist, however, that Mosely’s divorce and property settlement revoked the will by operation of law. This doctrine of implied revocation was developed in the English ecclesiastical courts and later adopted at common law. It was originally confined to cases in which the testator had married or had a child after the execution of the will, and to that extent the doctrine has been widely adopted by statute in this country. But whether the doctrine extends also to revocation by divorce and property settlement depends upon the statute in the particular jurisdiction. These statutes are of two types, which lead to opposite results.
In some states the statute enumerates the methods of revocation just as our earlier act did and then contains this proviso: ‘ ‘ excepting only that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the conditions or circumstances of the testator.” This is the wording of the Michigan law, and in the leading case of Lansing v. Haynes, 95 Mich. 16, 54 N. W. 699, 35 Am. St. Rep. 545, the court held that in view of this proviso the testator’s later divorce and property settlement operated as a revocation. In other states having similar statutes the same result has been reached. In re Hall’s Estate, 106 Minn. 502, 119 N. W. 219, 20 L. R. A. (N. S.) 1073, 130 Am. St. Rep. 621, 16 Ann. Cas. 541; Pardee v. Grubiss, 34 Ohio App. 474, 171 N. E. 375; In re Bartlett’s Estate, 108 Neb. 681, 189 N. W. 390, 190 N. W. 869, 25 A. L. R. 39.
But where the statute does not contain such a proviso the courts have consistently held that the principle of implied revocation extends only to those changed circumstances that are expressly set forth, such as marriage or birth of issue. Consequently it is the rule in those jurisdictions that a will is not revoked by a later divorce and property settlement. Robertson v. Jones, 345 Mo. 828, 136 S. W. 2d 278; Pacetti v. Rowlinski, 169 Ga. 602, 150 S. E. 910; In re Nenaber’s Estate, 55 S. D. 257, 225 N. W. 719. The statute we are now considering is of the latter type, and these decisions follow our own rule that the statutory methods of revocation are exclusive. We accordingly hold that Mosely’s will was not impliedly revoked by the' divorce proceedings.
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Per Curiam.
Mary Bigstaff prosecutes this appeal to reverse a judgment of manslaughter against her in which the jury fixed her punishment at two years in the State penitentiary. According to the evidence adduced by the State, Mary Bigstaff killed Homer Parker on October 6, 1929, in Pike County, Arkansas, by shooting him with a pistol. Mary Bigstaff and Homer Parker had lived together for some time but were not living together at the time of the killing. According to a witness who was present, the defendant commenced shooting the deceased and fired two shots in his body without any cause whatever. Witness stated that Homer Parker was his uncle and that he was not drinking on the evening that he was killed.
A physician who examined the body of the deceased testified that he found two wounds on the body, either one of which would have caused death.
According to the testimony of the defendant, Homer Parker and his nephew came to her house drunk and threatened to break into the house and stomp her to death. Witness had an automatic pistol and fired through the screen to scare Parker and to keep him from killing her with a rock. In short, she testified to a state of case which showed that she shot the deceased in self-defense. She stated that Parker and his companion were both drunk.
Both the State and the defendant introduced evidence tending to show that the defendant and the deceased had, on different occasions prior to the night of the killing, each made threats against the life of the other. The evidence for the .State was sufficient to warrant a verdict of guilty.
The next assignment for a reversal of the judgment is that the court erred in permitting the introduction of a steel jacket bullet with which the deceased was killed because this varied from the indictment which alleged that the deceased was killed by a leaden bullet. There was no merit in this contention. Vaden v. State, 174 Ark. 950, 298 S. W. 323.
The appellant has not filed any brief, but the record shows that the case was tried upon competent evidence and that -the instructions given by the court fully and fairly covered the theory of the defendant as to the killing. We have carefully examined the record and find no prejudicial error in it. The judgment is therefore affirmed. | [
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George Rose Smith, Justice.
For some 30 years the plaintiff-appellee, Arkansas Irrigation Company, has maintained a 6,000 acre reservoir in Prairie county, known as Peckerwood Lake. The company uses water from the reservoir in its own farming operations and sells water to neighboring rice farmers. The company does not own the entire bed of the lake in fee simple, but it does have flowage rights upon lands lying below 207 feet mean sea level.
The appellants, Philip and Joseph Petrus, are brothers whose farm lands are partly subject to the irrigation company’s flowage easements. In the fall of 1961 the Petrus brothers constructed levees to enclose about 20 acres of their land that was subject to the appellee’s flowage rights. The Petruses also installed a pump with an intake below the 207-foot line, enabling them to withdraw water from the reservoir. Whether the Petruses had a valid contract authorizing them to enclose the 20 acres and install the pump is the principal question in this case.
In 1964, the appellee brought this suit to require the Petrus brothers to remove the levees and the pump, to recover compensation for the Petruses’ use of the land within the levees for the growing of crops, and to recover compensation for water pumped by the Petruses from the reservoir. The taking of testimony was not completed until 1969; the Petruses’ attorney, J. B. Reed, died after the case had been submitted to the chancellor for decision. This appeal is from a decree in favor of the plaintiff upon all three causes of action asserted in the complaint. The appellants’ present attorneys did not participate in the trial proceedings.
According to the Petrus brothers’ testimony, they installed the levees and the pump under an oral contract with Dale Wiley; who was the appellee’s general manager for 18 years before his death in 1962. The precise terms of the asserted oral agreement are not in the record, because the chancellor sustained the appellee’s objection to that testimony. Although the appellants contend that the terms of the contract were admissible, there was no proffer of proof when the appellee’s objection was sustained. We are left to assume that the agreement simply authorized the Petruses to enclose and occupy the 20-acre tract and to pump water from the reservoir.
The irrigation company’s position all along has been that its manager, Wiley, had neither actual nor apparent authority to enter into the asserted agreement with thp Petrus brothers. Familiar basic rules governing the authority of a corporate manager are discussed by Fletcher in his Cyclopedia of the Law of Private Corporations (1969 rev.). In Section 667 the author states, the fundamental principle that such a manager has implied or apparent authority to make contracts “falling within the scope of the ordinary and usual business of the company.” Such an agent, however, has no authority to sell the company’s real estate, unless specially empowered to do so. § 687. Fletcher adds fhat it is a well-known rule that the manager of a corporation cannot give away its property. §689.
Applying the foregoing rules to the case at bar, we are of the opinion that the chancellor was right in concluding that Wiley did not have actual or apparent authority to make the asserted contract with the Petruses. Roger Crowe, the president of the corporation, testified that Wiley did not have that authority. The company’s first manager, Fricke, and its present manager, Downing, both testified that they would not have executed a contract for a period in excess of a year. There is no contrary testimqny with respect to Wiley’s actual authority.
With respect to Wiley’s apparent authority the record is equally favorable to the appellee. The irrigation company’s standard form of contract appears to have been a one-year contract for the sale of water from Peckerwood Lake. Wiley unquestionably had the power to execute those agreements; for, in Fletcher’s words, they fell within the ordinary and usual business of the company. There is no proof,. however, that Wiley ever entered into a contract remotely similar to that now asserted by the appellants. There was proof that Wiley employed the witness Hahn to clear 100 acres, but such an undertaking would be within the company’s ordinary business of impounding water. There was also testimony that Hahn discussed a $15,000 contract with Crowe, who said that Wiley had full authority to enter into it. There is,' however, no proof or proffer of proof of the terms of that contract, which may have been a routine one.
It is clear that the agreement now relied upon by the Petruses was not within the ordinary and usual scope of the irrigation company’s business. The Petruses testified that they were to have a perpetual right to occupy the 20-acre enclosure. We infer that they were also to have a perpetual right to pump water from the reservoir. There is no suggestion that the Petruses were to make any monetary payment for those valuable rights. Instead, the company’s inducement for making the agreement seems to have been some rather nebulous benefit from the accelerated drainage that would result from the construction of the levees. The appellee’s testimony indicates that such an acceleration was not really beneficial and could have been attained by the company itself at an expense of not more than $1,000. It is of course quite obvious that if the irrigation company made a practice of entering extensively into similar agreements by which the bed of its reservoir was released to others in perpetuity, with no financial return to the company, it would eventually be out of business.
We conclude that Wiley had neither actual nor apparent authority to make the contract. We need not discuss at length the appellants’ contention that the company ratified the contract by “inaction and silence.” Crowe testified that as soon as he noticed the Petruses’ enclosure, which was then complete or nearly so, he told them that Wiley did not have the authority to permit the encroachment and that it would have to be removed. The appellee took no affirmative action that could be regarded as a ratification of the agreement. It did fail to bring suit for more than two years, but during that delay there was no disadvantageous change of position on the part of the Petruses. A ratification might be found if it were shown that the irrigation company was knowingly receiving substantial benefits during the period of its inaction, as in Southern Elec. Corp. v. Ashley-Chicot Elec. Co-op, 220 Ark. 940, 251 S.W. 2d 815 (1952), but, as we have indicated, the weight of the evidence does not establish the appellee’s receipt of such benefits.
Two other points for reversal are argued. First, the chancellor, in addition to ordering the removal of the encroachments, awarded the appellee $4,450 as the fair rental value of the 20 acres during the appellants’ oc cupancy. The appellants are right in stating that the record contains no evidence fixing the rental value of the land. That part of the decree must be reversed.
Secondly, there is also no proof to support an award of $13,294.98 for the appellants’ consumption of water. That award was to be calculated at a specified percentage of the market value of the rice and soy beans grown on the lands that were watered. The market value and sale price of the crops were not proved, but the deficiency cannot be charged to the appellee. At the beginning of the trial the parties stipulated that the market value and sale price would “be submitted by the Defendants and become a part of the record.” Had Mr. Reed, the appellants’ trial attorney, lived, he would unquestionably have recognized his duty to complete the record. Unfortunately Mr. Reed died, and the appellants’ present attorneys, in taking the appeal, simply designated the entire record. In view of that designation there was no reason for the appellee’s counsel to be aware( of the deficiency until they received a copy of the appellants’ printed abstract and brief. Since the omitted proof was not available in the files of the trial court, the appellee could not have had it sent up pursuant 1 to a writ issued by this court. Ark. Stat. Ann. §§ 27-2129.1 and -2129.2 (Repl. 1962). We see no objection to counsel’s decision to explain the matter in their brief. In the circumstances justice requires that the cause be remanded so that the missing testimony may be supplied and a supplementary decree be entered.
Affirmed in part, reversed in part, and remanded.
Harris, C.J., not participating. | [
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PER CURIAM
Effective January 1, 1974 the following is adopted as Rule 15 of the Uniform Rules of Procedure for Circuit, Chancery and Probate Courts.
RULE 15
At the discretion of the presiding judge the following may be adopted as a uniform docketing rule of the court:
DOCKET NUMBERING
CIVIL DOCKETS
Civil cases shall be assigned docket numbers in the order of filing as follows:
Beginning with the first case filed each year in each court, the last two digits of the current year shall be entered followed by a hyphen and the number assigned to the case beginning with the number “1”. Thus, the first case filed in 1974 will be assigned the docket number “74-1” and the first case filed in 1975 will be assigned the docket number “75-1”. In those instances where the presiding judge is of the opinion that further identification is desirable the letters “CIV” preceding the docket number for civil cases in Circuit Court, the letter “E” preceding the docket number for cases filed in Chancery Court, and the letter “P” preceding the docket number for cases filed in Probate Court may be used.
CRIMINAL DOCKETS
The procedure to be used for criminal cases shall be the same as that for civil cases except that the docket number shall be preceded by the letters “CR”; thus the first criminal case filed in the year 1974 will be designated as “CR-74-1” and the first criminal case filed in the year 1975 will be designated as “CR-75-1”.
COURTS OF LIMITED JURISDICTION
All County, Juvenile, Municipal, City, Police, Justice of the Peace Courts and Courts of Common Pleas shall follow the docketing procedure set forth above for Circuit, Chancery and Probate Courts.
PER CURIAM
In compliance with the motion adopted by the Arkansas Judicial Council on October 12, 1973, whereby said Council approved the Code of Judicial Conduct [with the second alternate Canon 5C (2)] adopted by the House of Delegates of the American Bar Association on August 16, 1972, this Court declares that such Code constitutes proper standards for the Judiciary of this State. The reports of compensation required by Canon 6 of the Code should be filed annually during the month of June, for the preceding calendar year, with the Clerk of the Arkansas Supreme Court, Justice Building, Little Rock Arkansas, 72201.
Byrd, J., dissents. | [
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Conley Byrd, Justice.
This is the second appearance of this eminent domain action. In Arkansas State Highway Commission v. Allen, 253 Ark. 46, 484 S.W. 2d 331 (1972), we reversed a $27,000 judgment upon a jury verdict. On retrial the jury awarded damages in the amount of $23,750. For reversal of the judgment entered thereon the Commission raises the two points hereinafter discussed.
POINT No. 1. The Commission here contends that the trial court erred in refusing to rule as to the admissibility of alleged comparable sales testified to by the landowner and his expert witness. We find no merit in the contention. The record shows that both the landowner and his expert used some comparable sales, but the record does not demonstrate that such sales were not comparable. Neither can we find any merit in the suggestion that the trial court committed error in refusing to rule on the comparability of such sales before the witness had testified relative to the sales.
POINT NO. 2. The landowner’s expert testified that the highest and best use of the subject property was for commercial and residential uses. The Commission now contends that the Patton to Fisher comparable sale used by the expert should have been struck because it was subsequently used for a commercial or industrial use. We find no merit in the contention.
Affirmed. | [
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J. Fred Jones, Justice.
Virginia Louise Kennedy was charged with first degree murder in the killing of George Henry Duty. She was convicted at a jury trial for voluntary manslaughter and sentenced to six years in the penitentiary. She contends on appeal that the trial court erred in admitting into evidence a statement she made during interrogation by police officers because she was physically and mentally unable to comprehend her constitutional rights as given to her by Lieutenant Wilson prior to making the statement.
There is no question that the appellant fired the fatal shot that killed George Henry Duty. She was well-known to the law enforcement officers having been previously convicted for grand larceny, prostitution, forgery and uttering, assault with intent to kill, and having been arrested on numerous occasions for public drunkenness.
The facts in the case at bar briefly are these: The deceased was an old boyfriend of the appellant and after he was sentenced to the penitentiary, the appellant started living with Donald Crawford in a housetrailer, or converted bus, near her mother’s home. Paul Burns had been living with the appellant’s mother. The deceased had recently been released from the penitentiary and he and Paul Burns and the appellant went to the house-trailer where the appellant and Crawford had been living, Crawford was already at the trailer. It appears that all the parties were drinking beer and the appellant shot and killed Duty with a .22 rifle. The appellant, Crawford, and Burns then took Duty to a hospital but he was dead upon arrival. The appellant was taken into custody at the hospital by a municipal policeman, Gary Wilson, who transported her to the county jail where she made the statement here in question about three and a half hours after she was taken into custody. The statement was taken on a tape recorder in question and answer form and was reduced verbatim to a typed transcription. The state offered the statement in evidence at the trial and the appellant objected to its introduction, contending that it was not admissible under Miranda. The appellant’s contention seems to be that she was intoxicated and was too drunk to understand her constitutional rights if they were explained to her, and too drunk to intelligently waive her right to the services of an attorney when she was first arrested by Officer Wilson and subsequently questioned by Officer Young. The court announced that they would have a “Miranda hearing” and proceeded to a hearing in chambers.
At the in-chambers hearing Officer Wilson testified that at the time he took the appellant into custody at the hospital, he told her she had a right to remain silent and anything she said could be used against her in a court of law; that she had the right to an attorney and have him present while she was being questioned and if she could not afford to hire an attorney, one would be appointed for her. He said that he asked her if she understood the warning and she said that she did. He said the arrest was made and warning given at approximately 7:00 p.m.; that the case being a “county case” Sheriff Henderson was handling the investigation and he simply transported the appellant to the county jail where she was questioned about 10:50 p.m. when Sheriff Henderson returned from the scene of the homicide. He said he was present when the appellant was questioned by state police Officer Young and that Officer Young again advised her of her constitutional rights. He said the warning given her was recorded along with her statement and was included in the written transcript.
At the in-chambers hearing Officer Wilson testified that the appellant “was kindly shook up” at the time of her arrest. He said she had a strong odor of intoxicants on her breath but that she was not swaying, unsteady or staggering. He said that she was crying, but appeared to be in complete control of her faculties. He said that immediately after he arrested the appellant, he gave her an intoximeter test which registered .22. Officer Wilson then testified that he had known the appellant for three or four years; that he had arrested her on previous occasions for public drunkenness, and had observed her when she was sober. He said that in his opinion the appellant was not drunk when he arrested her at the hospital. He said she responded immediately to all questions asked her at the time of her arrest; that he had had numerous dealings with the appellant in the past years and that there was no doubt in his mind that she comprehended the questions he asked and statements he made to her in giving the Miranda warning.
At the in-chambers hearing Officer Young testified that when he questioned the appellant she seemed to understand every question asked her and everything said to her; that she answered all questions in a manner which would indicate she knew what she was talking about. He said the appellant had obviously been drinking but that she was not drunk. He said she would have been considered as driving while intoxicated had she been driving an automobile, but that she was' coherent and able to walk and talk in a satisfactory manner.
Sheriff Henderson had tesdfied in open court prior to the in-chambers hearing and his testimony was considered by the trial judge on the voluntariness of the statement made by the appellant. Sheriff Henderson said that he first went to the Newport Hospital when advised of the homicide. He said he talked to some of the witnesses including the appellant and then went out in the county where the homicide occurred. He said he later talked to the appellant at the county jail. He said that when he first talked to the appellant at the hospital, she was crying; that she had been drinking some but was not in a drunken condition. He said “she knew what she was doing.” Sheriff Henderson testified that he had been sheriff of the county for 10 years and had seen the appellant drunk several times during that period. He said he believed he had only had her in the county jail once or twice for public drunkenness, but he had seen her in the city jail on several occasions. He said he had observed the appellant when she was very “staggery” and had no control of her faculties. In comparing the previous occasions when he had observed her while drunk, he said that when he talked with her at the hospital “She knew everything, knew me, talked with me; she wasn’t staggering.” He said that the appellant had known him for some time and, prior to the interrogation, she kept asking him to help her; that she didn’t mean to shoot Duty; that Duty begged her to shoot him but that she did not mean to do so. He said she indicated to him that the shooting was an accident and that during these statements he advised her to be quiet until she was advised of her rights, etc.
On cross-examination Sheriff Henderson testified that when he first went to the hospital, he talked to several witnesses and that the appellant probably did come to him and start telling her story of what had happened. He said he had seen “Cookie” (the appellant) drunk on many occasions. He then testified as follows:
“Q. Was she drunk this time?
A. No; no, she wasn’t what I would say a bad drunk; she had been drinking but she was not to the point of what I would call a drunken condition.
# * #
Q. It is your opinion then and you are saying then she was in an intoxicated condition that night when you saw her?
A. She was intoxicated, yes, sir, but she was far from being drunk.”
Gerald Carlyle, the deputy prosecuting attorney, testified at the in-chambers hearing. He testified that he was present when the appellant was questioned around 10:45 or 10:50 p.m.; that she appeared to be stable and did not appear to be under the influence of intoxicants. He said that she was responsive to all questions asked her and appeared to have complete control of her senses. He said that he is of the opinion that she was thoroughly able to comprehend the Miranda warning given her at the time she was questioned, and that she understood the warning. He said he knew nothing of the appellant’s condition at the hospital when she was first arrested and warned of her rights by Officer Wilson. He said that during the interrogation the appellant started crying at one point and the sheriff let her call her mother before she was questioned. He said that the appellant did call her mother and talk with her; that she told her mother she was in custody at the police department and was all right. He said she then settled down and gave her statement. He said that he was not present when Officer Wilson advised the appellant of her constitutional rights, but that he was present when Officer Young so advised her just prior to her statement. He said that he asked the appellant if she had been warned of her rights and she told him that she had.
The appellant testified at the in-chambers hearing. She said that she was acquainted with Officer Wilson and remembers him placing her under arrest at the hospital. She said that she knew what was meant by a warning of constitutional rights, but that she did not remember Officer Wilson warning her of her rights at the hospital. She was asked what she recalled as to her emotional state and her condition when she was arrested at the hospital and she responded, “I was just real nervous.” She said she does not. know whether she was crying or not but that she thinks that she was. She said she does not remember Officer Wilson telling her that she could have an attorney appointed for her if she couldn’t afford one. She said that she would have asked for an attorney at that time had she known one would have been appointed for her.
“Q. Your statement is that Mr. Gary Wilson did not tell you that?
A. He may have but if he did I forgot about it.”
On cross-examination the appellant testified:
“Q. Didn’t you know you had the right to have an attorney if you wanted one?
A. Yes, sir, but I didn’t have no way of getting hold of one.”
The appellant then testified that she was convicted in the Jackson County Circuit Court in 1964 for assault with intent to kill and was sentenced to two years in the state penitentiary with the sentence suspended; that in 1965 she was sent to the state penitentiary for violating the terms of the previous suspension; that in 1968 she was convicted of grand larceny and sentenced to ten years in the penitentiary to be suspended on good behavior, and that in 1968 she was convicted for prostitution. She said that in 1972, less than three months before Duty was killed, she was again convicted of forgery and uttering and sentenced to the penitentiary for three years which was suspended. She said she pleaded guilty to all of these charges. At the conclusion of the in-chambers hearing the trial court held the statement admissible.
In the statement offered in evidence the appellant gave her name and gave her age as 28 years. The statement as recorded then reads in part as follows:
“BUDDY YOUNG: You are presently under investigation on a murder charge. You know you have the right to remain silent.
VIRGINIA KENNEDY: Yes sir.
BUDDY YOUNG: And anything you say can be used against you in a court of law.
VIRGINIA KENNEDY: Yes sir.
BUDDY YOUNG: You have the right to consult with an attorney before you make any statement.
VIRGINIA KENNEDY: Yes sir.
BUDDY YOUNG: You have the right to stop answering questions at any time for the purpose of consulting an attorney.
VIRGINIA KENNEDY: Yes sir.
BUDDY YOUNG: Now, do you want' to go ahead and make a statement at this time, without an attorney present, you can waive your right to remain silent and make a statement. Do you wish to make a statement at this time?
VIRGINIA KENNEDY: Yes sir, I will.”
The appellant then proceeded to give direct and responsive answers to the questions asked her. She said that Duty took her and Paul Bums to her housetrailer. in his automobile and while there, Duty’s brother-in-law came out to repossess the automobile from Duty. She said that Duty had been drinking some beer and argued with his brother-in-law about the automobile. She said that when Duty came back into the trailer after talking with his brother-in-law about the automobile, he started cursing and blackguarding and told Donald Crawford who was there, that if he, Duty, could not have her, the appellant, that Crawford was not about to get her. She then said:
“Then he hit me and knocked me down, whenever he did. I don’t know, I just grabbed the gun and shot him.”
The appellant said that Duty threatened her with a chain he jerked from the door latch and also threatened her with a knife and she just shot him and couldn’t help it. She said she already had a shell in the gun because Duty had threatened her previously at her mother’s home. She said she kept a shell in her gun all the time when Crawford was away from the trailer and she was there by herself. She said she was afraid of the decedent Duty. In her statement the appellant said that Duty didn’t actually strike her but that he pushed her with both hands and when he did, he knocked her down and she received a knot on her head and a bruise on her arm. She said she fell backwards and fell close to the gun so she picked it up and shot him.
Sergeant Young testified before the jury that alcohol in the body affects different people in different ways. He said that some people can be drunk and pass out with .08 or .09% and others who have developed a high tolerance can go as high as .31 or .32% and still be able to walk and talk.
Donald Crawford and Paul Burns testified as witnesses for the appellant. They both testified to the effect that some beer was being consumed by all of them on a friendly basis in the trailer. There was some testimony that a half pint of whisky was brought to the trailer by one of the parties. Their testimony was to the effect that the difficulty between Duty and the appellant arose when the automobile Duty was driving was repossessed by a former owner. They said the appellant attempted to restrain Duty from following the former owner toward the automobile after it was repossessed; that the appellant and Duty started cursing and shoving each other; that Duty threatened the appellant with a door chain and a knife and that the appellant shot him.
The appellant testified before the jury in her own defense. She said she had been drinking heavily on the day of the homicide and does not remember even going to the trailer with Duty and Paul Burns on that day. She said she had tried to think back and remember what happened but that she had been unable to do so. She said she drinks beer every day and also drinks whisky. She said she had been drinking like that ever since she was 17 years of age; that she thinks she is an alcoholic; that she had attempted to stop drinking but has been unable to do so.
We are of the opinion, that the court did not err in admitting the appellant’s statement into evidence. Certainly her answers to questions asked her were direct and responsive and there is nothing in the answers that would indicate she was under any mental or physical disability at the time they were made. There is some conflicting testimony as to the amount of alcoholic beverages the appellant had consumed and the effect it had upon her, but there is substantial evidence to support the trial court’s finding that the appellant was advised of her constitutional rights as set out in Miranda and that she knowingly and intelligently waived her right to the services of an attorney at the time she gave her statement and that she intelligently and knowingly did so.
In Reed v. State, 255 Ark. 63, 498 S.W. 2d 887, we reversed the conviction for error in admitting a statement of the accused into evidence without warning and advice of his constitutional right to the services of an attorney at the time of arrest as set out in Miranda v. Arizona, 384 U.S. 436 (1966). Asimilar deficiency appears in the warning given by Officer Young in the case at bar. He did not advise the appellant that an attorney would be appointed for her if she was unable to employ one. The record is not clear whether Officer Young was attempting to warn the appellant of her constitutional rights before questioning her, or whether he was attempting to determine if she had already been warned of her constitutional rights. In any event, according to Officer Wilson, he gave the appellant the complete Miranda warning approximately three and one-half hours before Officer Young talked to her and before she made her statement. The appellant testified that if such warning was given to her by Officer Wilson, she had forgotten about it.
In Brooke v. State, 86 Ark. 364, 111 S.W. 471, a public drunkenness ordinance was under attack. The defendant had been charged with violation of the ordinance and in that case we cited with approval the standard dictionary definition of drunk as being:
‘“Under the influence of intoxicating liquor to such an extent as to have lost the normal control of one’s bodily and mental faculties, and commonly, to evince a disposition to violence, quarrelsomeness and bestiality.’”
In Miller v. State, 251 Ark. 502, 474 S.W.2d 112, the appellant signed a waiver of his constitutional rights but testified at an in-chambers hearing that he had been drinking and did not remember whether his constitutional rights had been explained to him or not. His testimony was to the effect that he was too drunk to read and too drunk to know what was going on at the time he signed the waiver and statement. In that case we held that the trial court did not err in admitting the statement into evidence as voluntarily made and in doing so we pointed out that the appellant had no difficulty remembering other events in connection with his arrest and detention.
In Hale v. State, 252 Ark. 1040, 483 S.W.2d 228, we approved the action of the trial court in admitting a statement made to arresting officers 90 minutes after the accused was given the Miranda warning and we distinguished that case from Scott v. State, 251 Ark. 918, 475 S.W.2d 699, where there was a 90 day lapse of time between the giving of the warning and the admissions made by the accused.
In the Pennsylvania case of Commonwealth v. Smith, 447 Pa. 457, 291 S.2d 103 (1972), the conflict in the evidence was very similar to the conflict in the evidence in the case at bar and in that case the Supreme Court of Pennsylvania said:
“Appellant contends that at the time his confession was taken he was too intoxicated to understand the constitutional warnings, thereby rendering involuntary his waiver and subsequent statement. The fact that an accused has been drinking does not automatically invalidate his subsequent incriminating statements. The test is whether he had sufficient mental capacity at the time of giving his statement to know what he was saying and to have voluntarily intended to say it. Recent imbibing or the existence of a hangover does not make his confession inadmissible, but goes only to the weight to be accorded to it. See United States v. Martin, 434 F.2d 275 (5th Cir. 1970); United States v. Kershner, 432 F.2d 1066 (5th Cir. 1970); 2 Wharton’s Criminal Evidence (12th Ed.) § 388 (Cum. Supp. 1970).”
The same question was presented to the Wyoming Supreme Court in Lonquest v. State, 495 P.2d 575. In admitting the confession in that case the court pointed out that no confession or statement should be received unless the maker was capable of realizing what he was saying and not suffering from delusions or hallucinations, so that he knowingly, understandingly and comprehend-ingly made the statement. The court pointed out, however, that the judge first and the jury are the only possible available instruments by which such determination can reasonably be made. The Wyoming Court then applied the general rule quoting from People v. Schompert, 19 N.Y.2d 300, 279 N.Y.S.2d 515, 226 N.E.2d 305, as follows:
“‘The general rule applicable to confessions obtained from persons under intoxication has been well stated to the effect that ‘proof that the accused was intoxicated at the time he confessed his guilt of crime will not, without more, bar the reception of the confession in evidence. But if it is shown that the accused was intoxicated to the degree of mania, or of being unable to understand the meaning of his statements, then the confession is inadmissible.’ ***’”
See also People v. Dagge, 295 N.E.2d 336; State v. McClure, 185 S.E. 2d 693.
The judgment is affirmed. | [
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George Rose Smith, Justice.
This is an appeal from a f30,000 personal injury award to the appellee. The appellant’s single contention is that the verdict is excessive. That issue depends essentially upon whether there is substantial evidence establishing a causal connection between the plaintiff’s injuries and a heart attack which he suffered about three months after the accident in which he was hurt.
On January 14, 1972, Pavatt, age 36, was riding as a passenger in a pick-up truck. While the vehicle was standing on the highway it was struck so violently from the rear by a car driven by the appellant that the bolts anchoring the seat of the truck were snapped. Pavatt was thrown forward against the dashboard, suffering injuries to his neck and back.
Three days later Pavatt consulted his family physician, Dr. Hickey, who found stiffness, soreness, and pain in the patient’s back and neck. Inasmuch as Pavatt had an abnormally fast heartbeat, Dr. Hickey put him in the Conway County Hospital, where a number of tests, including electrocardiograms, were made. Dr. Hickey’s final diagnosis was “a sprain of the cervical, dorsal, and lumbosacral spine, arteriosclerotic heart disease, coronary sclerosis, and multiple contusions and abrasions.” After Pavatt’s discharge from the hospital he continued to have pain and soreness in his neck and back and was treated by Dr. Hickey in February and March.
Pavatt again visited Dr. Hickey on April 29. In addition to the earlier complaints Pavatt was then suffering from chest pains. Dr. Hickey made another electrocardiogram, which showed evidence of a heart attack— myocardial infarction. Dr. Hickey again put his patient in the hospital. Dr. Hickey testified at the trial that Pavatt had a 20% permanent disability, of which 5% was related to the neck and back injuries and 15% to the heart condition.
Pavatt admittedly was suffering from arteriosclerotic heart disease at the time of the accident, but it had not been disabling. The question is whether the accident aggravated or activated his condition, within the rule stated in Owen v. Dix, 210 Ark. 562, 196 S.W. 2d 913 (1946): “The rule appears to be well settled that when a defendant’s negligence aggravates, or brings into activity, a dormant or diseased condition or one to which the injured person is predisposed, the defendant is liable to the injured person for the full amount of the damages which ensue, notwithstanding such diseased or weakened condition.”
Dr. Hickey testified that in his opinion there was probably a causal relation between Pavatt’s myocardial infarction and the neck and back injuries that he sustained in the accident. He explained that pain, nervousness, and tension affect the progress of heart disease and that it is well recognized in medicine that such afflictions can precipitate a heart attack. (A number of authorities are quoted in Woods, The Heart Attack Case in Workmen’s Compensation, 16 Ark. L. Rev. 214 [1962].)
Dr. Hickey is a general practitioner. The appellant’s only medical witness was another general practitioner, Dr. Weber, who had studied the medical records on the night before the trial but had not examined Pavatt. Dr. Weber was of the opinion that there was no possible connection between Pavatt’s injuries and his heart attack some three months later. It was his view that Pavatt’s heart disease had developed over a period of years and could not have been caused or aggravated by the automobile accident.
We can only conclude that the conflicting testimony made a question of fact for the jury. We cannot say that Dr. Hickey’s expert opinion is shown to have no reasonable basis. Dr. Hickey explained the reasons for his conclusions. His qualifications are essentially the same as those of Dr. Weber. In our judgment the testimony of each physician amounted to substantial proof supporting the beliefs that he expressed. It was for the jury rather than for the members of this court to determine the factual issue that was presented.
Affirmed. | [
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Humphreys, J.
Appellant, one of the opponents of appellee for representative in the county of Clay in the Democratic primary election, held on the 12th day. of August, 1930, brought suit in the circuit court of said county to contest appellee’s certificate of nomination by the county central committee, alleging that he (appellant) received 1,198 votes, a plurality of all legal votes cast for representative in said primary election, whereas appellee received 907 legal votes and 450 illegal votes, specifically charging that 450 persons in certain townships in said county voted for appellee who were not qualified electors by reason of having failed to pay their respective poll taxes as required by law.
Service was obtained upon appellee on August 23, 1930, and, on application of appellant, a special term of said court was called for September 8, 1930, to try the contest.
On the 1st day of September, 1930, eight days before the special term of court convened, appellee over appellant’s objection filed a motion to quash the service upon him which the court overruled when it convened on the 8th day of September, 1930, and, reserving exception to the court’s action in overruling his -motion to quash the service, appellee filed, also over appellant’s objection, a plea in abatement alleging that prior to November 30, 1921, appellant was postmaster at the town of St. Francis in Clay County, Arkansas, and as such postmaster had in his custody the money received from said office, said money being the property of the United States of America; that said appellant feloniously embezzled a large sum of money, the property of the United States of America and became a ¡fugitive from justice, concealing himself under an assumed name in the State of Mississippi ; that the said Irby was indicted for embezzlement under § 225 of the Revised Criminal Code of the United States in the District Court of the United States for the Jonesboro Division of the Eastern District of Arkansas, and was arrested in the State of Mississippi and brought back to Arkansas for trial; that said cause was transferred to the Little Rock Division of said District Court for trial, and at said trial, said W. O. Irby was convicted on the 17th day of February, 1922, and séntenced to serve a year and a day in the Federal Penitentiary at Atlanta, Georgia, and that he was never pardoned.
Appellant objected to the filing of the plea in abatement because more than ten days had elapsed after the complaint had been filed and service had upon appellee.
After overruling appellant’s objection to the filing of same, without waiving his objections and exceptions, appellant filed a demurrer to the plea in abatement on the following grounds;
"First: The court is without jurisdiction to hear and determine the question raised by the plea in abatement.
"Second. That the plea in abatement does not state facts sufficient to constitute a defense to- plaintiff’s cause of action.”
The demurrer was overruled by the court, over appellant’s objection and exception, and, appellant refusing to plead further, the court dismissed his complaint, from which judgment of dismissal is this appeal.
Appellant’s first -contention for a reversal of the judgment is that the trial court was without authority to allow appellee to file his plea in abatement after ten days from the filing of the complaint. Appellant relies for this contention upon the last sentence in § 3772 of Crawford & Moses’ Digest, the procedure section for election contests, 'which sentence is as follows: “A complaint shall be answered within ten days. ” It is apparent from reading Initiated Act Number 1 of the Acts of 1917, of which § 3772 of Crawford & Moses’ Digest is a part, that one purpose of the act was to afford speedy trial in contested election cases, but certainly not so speedy that a contestee might not be permitted to file an answer after the expiration of ten days from the filing of the complaint if good reason is shown why the answer was not filed within the statutory period. It was not intended by the act that a contestee should be denied the right to file an answer after the lapse of ten days if he had a good excuse for not doing so and if by doing so the progress of the trial would not be delayed. These expressions as to the real purpose and intent of the act in question force us to conclude that the ten-day limit within which to file an answer in contest election cases is directory and not mandatory, and that answers may be filed in such cases after the limit within the sound discretion of the trial court. In the exercise of such discretion an unreasonable time and one that would unnecessarily delay the trial of the cause should not be allowed. It is true that this court ruled in the case of Logan v. Russell, 136 Ark. 217, 206 S. W. 131, that the statute in question was mandatory respecting the time for filing complaints in election contests, but that holding was based upon the theory that the proceeding was a special one and that the time limit within which to file the complaint was jurisdictional. Failure to file an answer in the specified time would not oust the jurisdiction of the court to try the cause. The filing of the answer has relation to procedure only and not to the matter of jurisdiction of the cause. A liberal rule may therefore be indulged relative to filing an answer, provided filing same would not interfere with a ■ speedy trial of the cause. Powell v. Horn, 159 Ky. 532, 167 S. W. 928, 930 ; Roach v. Malotte, 23 Tex. Civ. App. 400, 56 S. W. 701. In the instant case the excuse for not filing the answer was that appellee, in good faith, questioned the sufficiency of the service upon him and waited for a ruling of the court on that question before filing the answer and thereby entering his appearance. Immediately after obtaining a ruling of the court upon the sufficiency of service, appellee filed his plea in abatement which did not delay the progress of the trial. The trial court did not abuse its discretion in allowing the plea to be filed.
Appellant’s second and last contention for a reversal of the judgment is that the plea did not constitute a defense to the cause of action. The plea was sufficient to show that appellant was ineligible to hold the office of representative from Clay County, and for that reason had no right to contest appellee’s certificate of nomination. Section 9 of article 5 of the Constitution of 1874 provides that no person convicted of embezzlement of public money shall' be eligible to hold an office of representative in the General Assembly.
No error appearing, the judgment is affirmed. | [
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George Rose Smith, J.
This was at first a suit for separate maintenance brought by the appellant against her husband, the appellee. By cross complaint the defendant sought a divorce on the ground of indignities, and the plaintiff then amended her complaint to ask for a divorce on the same ground. After the trial the chancellor held that because both parties were equally at fault neither was entitled to a divorce. The appellant was ordered to vacate the family home and was awarded separate maintenance in the amount of $50 a month for one year.
About seven weeks after the trial the appellant filed a pleading that the chancellor rightly treated as a motion to set aside the decree for newly discovered evidence. In this motion the appellant asserted that a few days before the first trial her husband had been guilty of an act of adultery, of which the appellant had no knowledge until after the first hearing. The appellant prayed that she be granted a divorce upon the ground of adultery. By stipulation the first decree was vacated, but after a second hearing the chancellor found that the charge of adultery had not been proved. The final decree, now under attack, reinstated the original findings.
In the main we affirm the chancellor’s conclusions. The correctness of his action in denying a divorce to either spouse on the basis of indignities is not questioned. The issue upon the accusation of adultery is wholly one of credibility. The husband’s alleged paramour testified that on November 17, 1949, she spent the night with him in a tourist court near Little Rock. This is denied by the appellee, who states that he merely rented a cabin for the woman because her daughter and son-in-law would not allow her to enter their home when she had been drinking. According to the appellee he does not like to drive a car at night, and after obtaining a room for this woman he telephoned his son to come and take Mm home. Both the son and a friend who accompanied him corroborated the appellee’s testimony abont his having gone home instead of staying at the tourist court. The attendant in charge of the tourist court verified the fact that the appellee had registered for a cabin, signing his own name, but this attendant did not testify that the appellee entered the cabin itself.
It is evident that either the woman or the appellee and his corroborating witnesses testified falsely. The two versions of the night’s happenings are about equally probable. In this situation we are gnided.by the findings of the chancellor, whose opportunity to determine the veracity of the witnesses is far better than ours. The supposed paramour gave her evidence with such evasiveness that the chancellor commented upon it during the trial. "We cannot say that it was error for him to credit the testimony offered by the appellee.
We think, however, that the appellant is entitled to a somewhat more liberal allowance for her separate maintenance. The appellee admits that his monthly income is about $250. It is well settled that when a wife obtains an award for her separate maintenance the marital relation still continues, and it is therefore the husband’s duty to provide support for his wife. Pledger v. Pledger, 199 Ark. 604, 135 S. W. 2d 851; Bonner v. Bonner, 204 Ark. 1006, 166 S. W. 2d 254. We have concluded that the maintenance payments should be fixed at $75 a month without'limitation as to time, subject to future modification if required by changed conditions. With this modification we affirm the decree, the appellee to pay all costs in both courts and an attorney’s fee of $100 for the services of the appellant’s attorneys in this court. | [
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Steele Hays, Justice.
This is an original action by the petitioner, Perry County Sheriff Jimmy Hester, asking this court to prohibit Circuit Judge John Langston from proceeding to trial upon an indictment returned against Hester by a Perry County grand jury. We granted a temporary writ of prohibition and required briefs pursuant to Rule 16 of the Rules of the Supreme Court and the Court of Appeals. Having considered the arguments we now dissolve the temporary writ of prohibition.
On December 17,1987, a Perry County grand jury returned two indictments against petitioner, Sheriff Jimmy Hester. The first indictment charged Hester with violating Ark. Code Ann. § 14-14-1202 (1987), ethics for county government officers and employees. A jury subsequently found the petitioner not guilty on this indictment. The second indictment charged the petitioner with several violations including: (1) violation of county ordinance 0-209, the misuse of county funds; (2) violation of Ark. Code Ann. § 5-36-103 (1987), theft of property; (3) violation of Ark. Code Ann. § 5-54-121 (1987), tampering with a public record; and (4) violation of Ark. Code Ann. § 5-53-103 (1987), false swearing.
The petitioner filed a motion to dismiss the second indictment on the grounds that it was void and that it was barred by double jeopardy. Additionally, the petitioner asked for a jury trial which was denied by the trial judge. The motion to dismiss the indictment on the grounds that it was void was denied, but the trial judge did strike relevant paragraphs of the second indictment under the double jeopardy argument. We affirm the trial judge’s rulings.
The writ of prohibition is an extraordinary writ and it should never be granted unless the petitioner is clearly entitled to relief and the court against which it is sought is wholly without jurisdiction. Miller v. Lofton, 279 Ark. 461, 652 S.W.2d 627 (1983); Springdale School District v. Jameson, 274 Ark. 78, 621 S.W.2d 860 (1981); Wade v. State, 264 Ark. 320, 571 S.W.2d 231 (1978). The essence of the writ of prohibition is jurisdictional. The circuit court’s jurisdiction over this matter is decisively stated in the Arkansas Constitution. Article 7, § 27 of the Arkansas Constitution provides:
The circuit court shall have jurisdiction upon information, presentment or indictment to remove any county or township officer from officer for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance or nonfeasance in office.
Clearly from the language of this constitutional provision, the Perry County Circuit Court has jurisdiction upon presentment of the indictment to remove the petitioner, the county sheriff, from office. Jurisdiction is not an issue in this case, and thus the writ of prohibition is not appropriate.
The petitioner also argues that the trial judge acted beyond the scope of his jurisdiction in denying the request for a jury trial. However, we do not reach that argument by prohibition, as the remedy is by appeal. McClendon v. Wood, Judge, 125 Ark. 155, 188 S.W. 6 (1916).
Temporary Writ dissolved and the Writ of Prohibition denied.
Purtle, J., dissents. | [
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Mehaeey, J.
The appellees filed a petition with the county board of education of Ouachita County, alleging that they were a majority of the qualified electors residing in School Districts No. 1 and No. 50 of Ouachita County and asking that the boundary lines of said District No. 1 be changed so as to include within said School District Nú. 1 all -of the territory now comprising said School District No. 50; which district adjoins No. 1. Then followed a description of the territory of No. 50 by sections. A plat was attached to the petition and made part of it. This petition was filed on December 2, 1929, and notice of the proposed change on October 31, 1929* more than 30 days before the petition was filed. The petition was signed by J. A. Graston and 104 others. The appellants filed a remonstrance signed Iby J. S. Beard and 21 others. One of the grounds for opposing the change was that the children of the remonstrants would be compelled to go a distance off from 12 to 15 miles to attend school, and it would be virtually denying school facilities to a great many children. It was further alleged that the children would have to cross District No. 61 in order to get to1 the school; that they would have to cross Freeo Creek, which is sometimes impassable. There was no evidence to support these allegations, and these questions are not before the court. It was alleged that a majority of the patrons of School District No. 50 opposed the consolidation. The remonstrants alleged that the notice given was not in compliance with the statute in that it. was not a geographical description of the territory to be embraced in the proposed new district. That there was no geographical description of the territory embraced in District No. 1, and that the petition did not contain a geographical description of the territory to* be created. The county board of education on December 2, 1929, after reciting its finding of facts, made the order changing the boundary so that District No. 1 included all of the territory of both No. 1 and No. 50. Other orders were made with reference to the transfer of funds. After the decision of the board of education, an affidavit and bond for appeal to the circuit court was filed by remonstrants, and in the circuit court a demurrer was filed which was by the court overruled. The f ollowing stipulation was entered into by counsel:
“It is stipulated and agreed between counsel for the parties that the notices of the application to the board of education, a copy of which is contained in the transcript in this case, were posited in the time and manner and in number as required by law. That the petition which was filed with the county board of education herein, a copy of which is included in the transcript herein, is signed by a majority of the qualified electors of the territory affected by the petition and the order of the board of edueátion. That t,he order made by the county board of education, which was appealed from, contemplates that the district formed by the order of the county board of education shall include all of what was formerly School District Number 1 of Ouachita County, Arkansas, and all of School District Number 50, of Ouachita County, Arkan sas. That, while said petition does contain a majority of the qualified elector of both of saidiSchool Districts No. 1 and 50, it does not contain a majority of the qualified electors of said School District No. 50. That the agreement herein, to the effect that the notices were given in time and manner and number, as required by law, does not mean, and is not an admission, that the description of property contained therein is according to law.”
The case was tried in circuit court on February 27, and the circuit court after a recital of the facts found by it, ordered that the new School District No. 1 be established and created as ordered by the county board of education consisting of the territory set forth. Motion for new trial was filed, overruled and exceptions saved. This appeal is prosecuted to reverse the judgment of the circuit court.
It is first contended by the “appellants that the notices given did not contain a geographical description of the territory to be embraced in the district. The boundaries of both No. 1 and No. 50 were of course well known and describing them as Districts No. 1 and No. 50, of Ouachita Oounty, Arkansas, would be a geographical description of the territory. The notice and petition as contended by appellant must be in compliance with the statute, but to describe the territory as District No. 1 of Ouachita Oounty, Arkansas, would give all the information to persons entitled to know that a description by sections or by metes and bounds would give, and the purpose of notice of course is to advise persons interested as to the territory affected. If the formation of a new district took a portion of one district or all of one district and part of another, it would of course be necessary to describe the part taken. To say that a part of District No. 50 was taken would be no description at all, and the law requires that there must be a geographical description; but when it is described as District No. 1 or District No. 50, this is a complete description and a geographical description, and the notice and petition would have been valid, and there would have been a substantial compliance with the statute if it had described each district by number only.
"We agr ee with the appellants in their contention that the giving of the notice prescribed by statute was a prerequisite to the exercise of jurisdiction and that a failure to comply with the statute would make the organization invalid, but we do not agree that describing a district as No. 1 or No. 50' is not a geographical description. It is also contended that the petition is defective because it does not contain a geographical description of the territory, 'but what is said with reference to geographical description contained in the notice is applicable to the petition also.
This court, prior to the passage of act 156 of the Acts of 1927, had held that boards of education had no jurisdiction to annex territory comprising a special rural district created by special act. In School District No. 25 v. Pyatt, 172 Ark. 602, 289 S. W. 778, we said: “The only question to be determined is whether the county board of education can change the boundary line of a district created by special act of the Legislature. This court has several times held that a school district is the creature of the Legislature, or of some governmental agency named by the Legislature. This court has said: ‘The Legislature is primarily vested with the power to create school districts, and it may create or abolish a school district, or change the boundaries of those established, (for any reason that may be satisfactory to it. The Legislature may do this without consulting and without obtaining the assent of those persons who reside in the territory affected.’ ” In that case we also said: “Again it has been said repeatedly that, in all cases, the legislative control over the creation and boundaries of school districts is plenary, subject only, however, to the limitation that such action shall not impair the contracts or obligations of such districts. The Legislature has full power, it may organize a district itself, and may do so •without the consent of the inhabitants of the district, or it may authorize the county court or board of education or other governmental agency to form districts and change boundary lines; but, when the Legislature itself creates a district, of course, it cannot be said that it authorizes any governmental agency to change the boundaries of a district so created, and neither the comity board of education nor any other agency would have authority to change the boundaries of a school district created by the Legislature, unless the Legislature expressly authorized such agency to do so-. ’ ’
This court has in a number olf oases held that county boards of education have no authority to change the boundary lines of a school district established by special act of the Legislature. Park v. Rural Special School Dist. No. 26, 173 Ark. 514, 292 S. W. 697 ; School District No. 25 v. Pyatt Special School Dist., 1721 Ark. 602, 289 S. W. 778 ; McCrory Special School Dist. v. Curtis, 174 Ark. 343, 295 S. W. 971.
These cases were all decided prior to the passage of act 156 of the Acts of 1927. In all. of the cases, however, we held that the Legislature had plenary power, that it could authorize the boards of education or the courts to create school districts or that the Legislature itself could create school districts without the consent of the inhabitants of the territory affected. In a case decided after the passage of act 156 olf the Acts of 1927, we reviewed the cases which had been decided before the passage of the act, and, in construing the act, we said: “It gives the board of education authority to change the boundary lines of any district, and we think it necessarily leaves to- the- board of education the manner in which it will do this. That is to say whether it will do it by consolidating school districts or otherwise. ‘Any school district’ is sufficiently broad and comprehensive to include any school district and every school district in the State. ” Manley v. Moon, 177 Ark. 260, 6 S. W. (2d) 281.
The questions argued by appellant have been settled by the above case. It is agreed in this case that the peti tion contains a majority of the qualified electors of both of said School Districts No. 1 and No. 50, but tbat it does not contain a majority of tbe qualified electors of School District No. 50. Tbe law requires not tbat tbe petition shall contain a majority of each district, but tbat it shall contain a majority of tbe qualified electors residing* in tbe territory to be affected. Of course, in this case tbe territory to be affected is tbe entire territory embraced in No. 1 and No. 50.
“Said statute under which tbe proceeding was instituted was recently interpreted by this court in tbe case of Manley v. Moon, 177 Ark. 260, 6 S. W. (2d) 281, to mean tbat a majority of tbe electors in tbe districts to be affected, and not a majority of tbe electors in each district to be affected, was necessary in order to warrant tbe consolidation of tbe districts embraced in tbe petition. Tbe trial court correctly construed tbe statute to mean that a majority of tbe electors in tbe districts embraced in tbe petition were necessary to obtain an order consolidating same. * * * The county board of education is authorized by said act to form new school districts and to change tbe boundary lines between any school districts theretofore formed when a majority of tbe qualified electors in tbe territory to be affected sign and present a petition to tbe board for tbat purpose.” School Districts 14, 15 and 44 v. County Board of Education, 177 Ark. 734, 7 S. W. (2d) 798.
Judgment of tbe circuit court is. affirmed. | [
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Humphreys, J.
This suit was brought by appellant against appellees to cancel a certain supplemental coal lease executed by appellee, E. M. Thompson, to his coappellee, the Comet Coal Company; and to recover damages for hauling coal, rock and refuse from adjacent lands through passages under the south eighteen acres of the southwest quarter southwest quarter section 36, township 8 north, range 26 west, in Logan County for dumping same on the surface near the entry to the coal mine on said eighteen-acre tract.
Upon the trial of the cause the chancery court decreed that the title to the coal mine and passages under said eighteen-acre tract incident to mining the coal thereunder was in appellee, E. M. Thompson, under and by virtue of a reservation in his deed of said eighteen-acre tract to appellant, J. A. Goodson, of date November 9, 1925, and that he (Thompson) was entitled to lease and receive rentals for the use of the entry to and passages through the mine for hauling coal, rock and refuse from lands adjacent to said tract of land, from which is this appeal.
The facts necessary to a determination of the only issue involved on this appeal are as follows: E. G. Parrott, owner of the eighteen-acre tract of land, leased the' coal under same, with mining privileges thereto, on September 30,1922, to the Hindrix 'Coal Company. The Hindrix Coal Company assigned the lease to appellee, Comet Coal Company. This lease did not authorize the use of the entry and underground passages for the purpose of hauling coal, rock and refuse from adjacent lands and dumping same on the eighteen-acre tract near the entry to the mine. It was a lease in ordinary form, granting the right to the Hindrix Coal Company to prospect and mine coal from the eighteen-acre tract for a period of twenty years, to erect all necessary buildings around the opening to the slope, to take out the coal, to use the surface about the opening for dumping rock and refuse from the mine, for storing coal necessary for the business of mining .same, to cross said land to the public wagon road, and for a royalty or rental of twenty cents per ton for the merchantable coal removed therefrom. It did not purport in any of its terms to convey the title to the coal in place.
On the 8th day of February, 1924, R. G. Parrott and wife sold and conveyed by warranty deed without reservations or exceptions said eighteen-acre tract of land to R. M. Thompson. On the 9th day of November, 1925, R. M. Thompson and his wife sold and executed a warranty deed to appellant, J. A. Goodson, to said eighteen-acre tract with the following reservation: “Reserving all coal, oil and gas and mineral with the usual mining privileges. Grantor reserves the right to use the surface about the mine opening for mining purposes during the life of said coal mine. ’ ’ On the 2d day of February, 1926, R. M. Thompson executed a supplemental lease to the Comet Coal Company upon said eighteen-acre tract of land, granting to' it and its successors the right to mine coal from adjacent lands and dump the rock and refuse therefrom upon the surface of the above-described land in consideration of live cents royalty a ton, for all coal mined and hauled through underground entries, except that when coal should be mined from lands other than adjacent thereto', and said second party had to pay adjacent landowners an underground haulage fee, then and on that coal the royalty should be two and one-half cents, a ton for all coal hauled through underground entries. The lease also stipulated that it should be supplemental to the former lease and made part thereof and should be governed by the terms and conditions therein expressed. Before its original lease expired the Comet Coal Company began to mine coal from adjacent lands and haul same through the underground passages and out of the entry on said eighteen-acre tract, and to dump rock and refuse therefrom near the entry on said tract, and at the time of the institution of this suit had paid R. M. Thompson $598.75 in royalties under the terms of said supplemental lease.
Appellant contends for a reversal of the decree upon the theory that title to the coal under the eighteen-acre tract passed to the Hindrix Coal Company under the lease from R. G. Parrott to it and to the Comet Coal Company by assignment of the lease, which lease contained no authority to haul coal, rock and refuse from adjacent lands over the underground passages through the entry and dump same on the surface of said tract of land. The case of Bodcaw Lumber Co. v. Goode, 160 Ark. 48, 254 S. W. 345, 29 A. L. R. 578, is cited in support of the contention that the original lease operated as a present sale of the coal and conveyed title thereto. 'The case cited is not authority to the effect that a lease of minerals constitutes a present sale thereof, but is authority to the effect that the title to the minerals and title to the surface can be severed by exception or reservation of said minerals in a deed conveying the title to the surface, and that mineral rights in lands may be sold and conveyed separate from the surface. The lease in question conferred the right upon the lessee for the period of twenty years to enter upon and mine the coal under said eighteen-acre tract of land, and did not attempt to pass or convey the present title to the coal in place to said lessee. This did not constitute by sale a severance of the coal. The lease in the instant case did not constitute by sale a severance of the coal under the tract of land from the land itself. The rule announced by this court relative to ordinary mineral leases in the case of Osborn v. Arkansas Territorial Oil & Gas Co., 103 Ark. 175, 146 S. W. 122, the lease was not a present sale or transfer of title to the coal, hut simply a contract to mine coal under the land for a period of twenty years at a fixed price per ton. The Comet Coal Company acquired no right under the lease from Parrott except to mine the coal under the eighteen-acre tract of land. After the execution of the lease by Parrott he and his wife conveyed the land to R. Gr. Thompson without reservation, the effect of which was to convey the entire title, including the Parrott coal lease, and all rights thereunder to him. Subsequently, on the 9th day of November, 1925, R. G. Thompson combed the eighteen-acre tract to appellant, reserving all the coal, oil, gas and mineral -with the usual mining privileges and the right to use the surface about the mine opening for mining purposes during the life of said coal mine. 'The coal mine is in operation, never having been abandoned, and there being coal yet to be mined under the eighteen-acre tract. The reservation contained in the R. M. Thompson deed to appellant warranted the execution of the supplemental lease of date February 2, 1926, to appellee, Comet Coal Company, to haul coal, rock and refuse from the adjoining lands over the underground passages and out of the entry and dump same on the surface of the eighteen-acre tract near the entry during the life of the original lease. The rule, supported by the great weight of authority, is that the owner of coal in place, as Thompson was under his deed from R. Gr. Parrott, has the absolute right until all the coal is exhausted, to use the passages open for its removal for any and all purposes whatever, including- the right to transport coal over the underground passages and out of the entry, having due regard for the rights of the surface owner. 2 Snyder, Mines, p. 853 ; 18 R. C. L. 1149 ; 20 Am. & Eng. Enc. Law, 2d ed., 774 ; Lillibridge v. Lackawanna Coal Co., 143 Pa. 293, 22 Atl. 1035, 13 L. R. A. 627 ; Westerman v. Pennsylvania Salt Mfg. Co., 260 Pa. 140, 103 Atl. 539 ; Armstrong v. Maryland Coal Co., 67 W. Va. 589, 69 S. E. 195 ; Bagley v. Republic Iron & Steel Co., 193 Ala. 219, 69 So. 17 ; Schobert v. Pittsburg Coal & Mining Co., 254 Ill. 474, 98 N. E. 945 ; Moore v. Indian Camp Coal Co., 114 Iowa 56, 80 N. E. 6 ; St. Louis Union Trust Co. v. Galloway Coal Co., 193 Fed. 106 ; affirmed in 201 Fed. 1022. See extensive annotation in A. L. R. 967.
In view of the fact that R. M. Thompson owned the title to the coal in place under the reservation in his deed to appellant, the court correctly refused to cancel the supplemental lease, and correctly decreed the rents and royalties earned under same to him.
The decree will therefore he affirmed. | [
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Leelab, J.
This is an election contest case. Appellant Gunter filed a complaint alleging that he and appel-lee Fletcher were the two candidates for nomination for the office of Senator from the 22nd Senatorial District in the Democratic primary on August 8, 1950, that Fletcher was certified as the winner, but that specified irregularities in the voting and counting of votes had occurred, so that Gunter was actually the winner. The concluding paragraph in the complaint’s allegations of fact is as follows:
“12. Plaintiff alleges that proper recomputation of the votes cast will show the following totals, making plaintiff the nominee:
“For Fletcher. 3160
“For Gunter . 3371”
The complaint does not set out the number of votes certified for each candidate in the official canvass of returns by the County Democratic Central Committee. Defendant Fletcher filed a general demurrer to the complaint, which demurrer was sustained by the Circuit Judge, and plaintiff’s complaint dismissed. Plaintiff appeals.
Appellee Fletcher’s position is that the demurrer was properly sustained because the complaint fails to state facts- sufficient to constitute a cause of action, in that it does not set out what number of votes was certified for each candidate in the official returns, nor assert that Gunter is a qualified elector of the Senatorial District, 25 years of age, and a member of the Democratic party.
As to the failure of the complaint to recite the number of votes certified for each candidate in the official returns, appellee bases his argument on the cases of Hill v. Williams, 165 Ark. 421, 264 S. W. 964; Moore v. Childers, 186 Ark. 563, 54 S. W. 2d 409; and Wilson v. Anderson, 193 Ark. 799, 103 S. W. 2d 63. In each of these cases there was an attempted election contest, and in each of them a general demurrer, or a motion to dismiss, was held to have been properly sustained. In Hill v. Williams, the Court used, and thereafter the two later cases re peated, the following language upon which appellee relies:
“It was incumbent upon appellant to allege facts, and not conclusions, which would disclose, if true, that he received a plurality of all the votes cast for sheriff and collector in said county. . . . There should have been an allegation in the complaint showing the number of votes received by each candidate, so that it would appear, after deducting the alleged fraudulent votes from the number accredited to appellee, that appellant would then have more votes than either one of his opponents.”
The effect of the argument is that these decisions require, in every election contest complaint, a formal recitation of the totals shown by the Central Committee’s canvass, and that the omission of these figures always and inevitably will defeat the complaint regardless of what other allegations of fact be set out in it. To this we cannot agree.
The purpose of our statutes governing election contests is to aid the democratic processes upon which our system of government is based, by providing a ready remedy whereby compliance with the election laws can be assured. The purpose is to facilitate, not to hinder by technical requirements, 'the quick initiation of such contests.
‘ ‘ This court has several times held, that the statute providing for contesting elections- should be liberally construed. The purpose of the contest is to determine what candidate received the greatest number of votes; and if there are sufficient facts stated to give the other party reasonable information as to the grounds of the contest, then the case should be tried on its merits.” LaFargue v. Waggoner, 189 Ark. 757, 768, 75 S. W. 2d 235, 240. “Since such contest is generally held not to be a civil action subject to the rules of pleading in actions at law, but to be a special statutory proceeding, . . . the same strict technical accuracy in pleading is not usually required as in civil actions inter partes. ... it is not essential that the contestant set forth the grounds of his contest with the precision required of a pleading in a civil action, certainty to a common intent being all that-is required, and technical objections will be disregarded.” Robinson v. Knowlton, 183 Ark. 1127, 1133, 40 S. W. 2d 450, 452. And see Winton v. Irby, 189 Ark. 906, 75 S. W. 2d 656; Hailey v. Barker, 193 Ark. 101, 97 S. W. 2d 923.
Plaintiff in his complaint here alleges certain specific irregularities in the voting and counting of votes, then asserts that a proper recomputation of the votes will show Gunter with 3371 votes and Fletcher 3160, making Gunter the nominee. That is a clear and sufficient allegation of facts entitling Gunter to win the contest, if the evidence sustains his allegations. A recital of the official returns in addition would under these circumstances serve no genuinely useful purpose in the lawsuit, would add nothing to appellee’s information as to the facts upon which Gunter relies as grounds for his contest. To require the recital would be to insist upon a technicality, otherwise useless, for its own sake.
Such a requirement would not be in keeping with the law of Arkansas as to pleadings generally, which since the adoption of our Civil Code has provided simply that “The complaint must contain ... a statement in ordinary and concise language, without repetition, of the facts constituting the plaintiff’s cause of action,” Ark. Stats., § 27-1133, nor is there anything in the statute governing complaints in election contests, Ark. Stats., % 3-245, from which the requirement can be discovered. If the technicality is insisted upon, it will be because this Court imposes it in this special situation; it is one imposed nowhere else in our law governing pleadings, and one not even hinted at by the controlling statute.
Nor does it seem to us that the technicality is required in this case by the three earlier decisions upon which appellee relies. Hill v. Williams, supra, the first of them, involved a contest of an election in which there were four candidates, not two, and the conclusion was that the peculiar wording of the complaint there filed, not quoted in the opinion, “failed to show that appellant received a plurality of all the legal votes cast for sheriff and collector at said election.” The case did not hold that a recital of the official returns was the only phraseology whereby the requisite facts could he alleged, but rather held that the complaint had no allegation in it, in any form, setting out the facts necessary to constitute a case for the plaintiff. Essentially the same explanation applies to the language used in Moore v. Childers, supra, where there were five candidates and the complaint did not identify them nor indicate what vote the others had received, and in Wilson v. Anderson, supra, where there were three candidates and the vote for the third candidate was not alleged. In each of these cases it was apparently impossible for one reading the complaint to find any clear allegation in it that the contestant had received a plurality of the votes cast. No comparable difficulty appears from a reading of the complaint in the present case; its allegation is clear that, with only two candidates in the election, Gunter received 3371 valid votes and Fletcher 3160 valid votes.
Finally, if the plaintiff’s allegations were in any respect so indefinite that, though a cause of action was stated, the defendant still would have difficulty in preparing his defense, the remedy would be by motion to make more definite and certain, Ark. Stats., § 27-1160, and it would be proper for the Court to treat the demurrer as a motion to make more definite and certain by requiring recitation of such additional facts as would enable the defendant adequately to prepare his defense. Reynolds v. Roth, 61 Ark. 317, 33 S. W. 105; Forrest v. Forrest, 208 Ark. 48, 184 S. W. 2d 902.
As to the alleged defect of the complaint in not setting forth Gunter’s electoral status, age, and Democratic party membership, we hold that these are matters of affirmative defense. A candidate already admitted by the proper authorities to yjarticipation in the party primary, whose right to participate therein has not been attacked in advance of the primary, presumptively possesses the genera] qualifications essential to that par ticipation. One who wishes thereafter to attack the candidate on the ground that he lacks these qualifications must affirmatively plead the lack of them. The right of contest is by statute, § 3-245, specifically “conferred on any candidate,” with the result that anyone who has been allowed to participate in a primary election as a candidate need not establish anew his qualifications to be a candidate unless they are affirmatively questioned.
The judgment of the Circuit Court is reversed and the cause is remanded. | [
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Lyle Brown, Justice.
Appellant Harry Bailey was convicted of murder in the second degree in connection with the shooting death of W. R. Johnson. After a brief recitation of the evidence we shall enumerate and discuss the four points advanced for reversal.
Appellant owned, and resided on, a small farm in the Weeks community in western Scott County. He rented an adjoining eighty acre tract which was being occupied by W, R. Johnson as a tenant. Johnson moved out of the house but left some of his personal belongings and kept the key. When appellant found need for the house he went to see Johnson about the key and that meeting resulted in a heated encounter. Appellant testified that he was unable to get the key; that Johnson struck appellant in the face; and that Johnson threatened to kill appellant. The next confrontation of significance between the two men was on the day of the shooting, July 17, 1972. Appellant went to Stinson’s Garage in Weeks to pick up some personal items. He had a rifle in his pickup truck. Appellant transacted his business at the garage and just as he was getting in his truck, Johnson drove up and stopped. Johnson got out of his truck and walked toward appellant’s truck. Appellant testified that he thought Johnson was intending to kill him, so, in fear of his life, appellant shot and mortally wounded Johnson.
The State offered the testimony of three eyewitnesses to the shooting. They testified that Johnson was unarmed; that as Johnson approached appellant’s truck appellant said: “Johnson, I thought I told you to get out of the country”; that Johnson replied: “Well, go ahead and shoot. I’m not afraid of your gun”; and that appellant thereupon fired the fatal shot. Appellant insisted that he fired the shot because he feared for his life, although he conceded that Johnson displayed no weapon. On appellant’s behalf, Richard Aldridge testified that on the day of the encounter at the farm, the witness heard Johnson tell appellant that he would kill appellant the next time he saw him. Other evidence and trial procedure pertinent to the case will be recounted as the points for reversal are discussed.
POINT I. The trial court erred in failing to provide a 1973 jury selection to try the case in January 1973. In Scott County, January falls within the November term of court. The panel from which the jury was selected was chosen for the November 1972 term. If appellant desired to challenge the panel, a motion to that effect should have been made before his jury was em-panelled and sworn, fie did not do this. In Carruthers v. Reed, 102 F. 2d 933 (1939) the Eighth Circuit Court of Appeals said:
Under the law of Arkansas a challenge to the panel or motion to quash must be promptly made and it is too late if the jury has been empanelled and sworn. Brown v. State, 12 Ark. 623 (See 35 C.J. 377). If no objection was made at the trial, it is too late to urge it for the first time after verdict.
POINT II. The court erred in denying the proffered psychiatrist’s testimony. Appellant called as a witness a duly licensed medical doctor specializing in psychiatry. Appellant had consulted the doctor after the shooting and the doctor would have, according to the proffered testimony, given an opinion of the state of mind of appellant at the time of the shooting. We emphasize that appellant was not interjecting the issue of insanity. Appellant’s attorney stated that he would prove by Dr. Chambers that the doctor had visted and consulted with appellant and that in the doctor’s opinion, appellant fired the fatal shot through fear generated by the first confrontation at or near the tenant house. “As a general rule, the opinion of experts is not received if all the facts can be ascertained and made intelligible to the jury, or if the matter is such as men in general are capable of comprehending.” 2 Wharton’s Criminal Evidence § 502 (1955). The jury was furnished with a history of the background encounter between the parties; they had the testimony of three eye witnesses to the shooting; and they had a history of the shooting as viewed by the appellant. Any testimony given by the psychiatrist as to the cause of the shooting would have been cumulative and also would be based on the version of the shooting as recited to the doctor by appellant. The trial court did not err in refusing to admit the testimony of the psychiatrist.
POINT III. The court erred in giving its instructions and refusing the requested instructions of appellant. The specific argument on appeal with respect to instructions is that the court erred in giving court’s instruc-dons 16 and 18. Instruction 16 is the same as instruction S-9, discussed and approved in the case of Lamb v. State, 218 Ark. 602, 238 S.W. 2d 99 (1951). It was there held that the cautionary instruction (S-9) was appropriate when the case goes to the jury on the theory of self-defense. Instruction 18 is lifted from Tatum v. State, 172 Ark. 244, 288 S.W. 904 (1926). In Tatum the instruction was numbered 15. In the case at bar appellant made the single objection tliat the instruction did not inform the jury that they could conclude that appellant may not have had the requisite intent to commit murder.
POINT IV. The court erred in permitting the State to bring in rebuttal evidence after both sides rested, and further erred in refusing appellant the right to rebut the rebuttal witness. As to the first facet of the point, the court permitted the State, after both sides had rested, to produce the testimony of Walter Sussex. The purpose of the Sussex testimony was to rebut the defense testimony to the effect that the deceased Johnson had a bad reputation for being peaceful and law-abiding. The action of the trial court was within the province of its discretion. Rochester v. State, 250 Ark. 758, 467 S.W. 2d 182 (1971). After the testimony of Sussex, appellant asked permission to recall a number of witnesses in surrebut-tal. They were all character witnesses and the court apparently perceived that they had related all they knew about the reputation of the deceased for turbulence and violence. At least we cannot say the court abused its discretion in denying appellant the right to recall them.
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J. Fred Jones, Justice.
James Eaton was charged on information filed by the prosecuting attorney with delivering to Johnnie Rivers a quantity of marijuana in excess of one ounce with the intent to unlawfully deliver and cause same to be unlawfully delivered to other persons. He was convicted at a jury trial and was sentenced to five years in the penitentiary with four years suspended.
On appeal to this court Eaton contends that the trial court erred in not directing a verdict of acquittal or in not granting his motion for a new trial on the ground that the only evidence against the defendant was an uncorroborated oral statement made to police officers in the course of investigation. We agree with the appellant that his conviction must be reversed and the cause remanded for a new trial.
It appears from the record that in the course of investigating the marijuana traffic among students at Arkansas Polytechnic College at Russellville, six bags or “lids” of the substance were found in the possession of Tommy Gooch. Gooch implicated Johnnie Rivers as the person from whom he obtained the marijuana. Rivers entered a plea of guilty to a charge of selling to Gooch and apparently Rivers implicated Eaton as the person from whom he obtained the marijuana. Eaton was arrested and his house was searched by the police officers and he was subsequently charged as above set out.
The record indicates that the state intended to use Rivers as a witness against Eaton and in corroboration of statements made by Eaton to the police officers but, at the trial, Rivers denied that he had ever told the prosecuting attorney or anyone else that he acquired marijuana from Eaton. At some point in the proceedings Rivers’ parents employed Eaton’s attorney to represent Rivers and when Rivers was asked the direct question as to whether he had in fact purchased marijuana from Eaton, he refused to answer the question on advice of his and Eaton’s attorney as in violation of his constitutional right against self-incrimination.
Detective Jerry Snow was then called as a witness for the state and the prosecuting attorney requested an exclusionary hearing in chambers. At the in-chambers hearing Detective Snow testified that after Eaton was arrested, Eaton stated in his presence that he had sold ten lids of marijuana to Rivers for $10 per lid, but that Eaton refused to say from whom he obtained the marijuana. Detective Snow said he reduced the statement to writing but that Eaton refused to sign the written statement without his attorney being present. The full statement as written out by Detective Snow appears as follows:
“James Eaton. About a week and a half ago — I don’t remember the exact date— I sold Johnnie Rivers ten lids of Marijuana. I sold it to Rivers for $10.00 a lid. Rivers didn’t pay me then, but he was to pay me later. I figured he was going to sell it, but I didn’t know who. I would rather not say who I bought the marijuana from.”
The record of the in-chambers hearing then becomes somewhat confusing and appears as follows:
“MR. LAWS: I think it is obvious he refused to sign the statement right at the tíme. It is not a voluntary statement.
THE COURT: The Court will admit it. Save your exceptions.
MR. LAWS: For the purpose of the record and without waiving my client’s rights, this is an exclusionary hearing we are in, and I can ask him questions without waiving any of my rights.
THE COURT: Let’s cross one bridge at a time please.
MR. LAWS: Are you going to refuse to allow me to have my client explain the circumstances surrounding this statement?
THE COURT: No, sir. If he denies the statement, and I am assuming that is what he is fixing to do.
MR. LAWS: No, he is not going to deny the statement, but I have a right to show whether or not the statement is voluntary and have something for the Court to pass on.
THE COURT: Do you want me to do it out here?
MR. STREETT: I thought you were denying it. We have no objections to putting it on.
THE COURT: If it is a denial, let’s go. If it is something for the Court to pass on, let’s go.
MR. LAWS: It is a question whether or not this was a voluntary statement.
THE COURT: That’s a question for the jury.
MR. STREETT: We have no objections to the Court passing on whether or not it was voluntary.
THE COURT: I have admitted the statement.
MR. LAWS: Are you going to admit the statement without testimony?
THE COURT: I have admitted the statement. From here on out then if there is something to show it was involuntary, it is a question of fact.
MR. STREETT: We have no objections. I thought he was denying making the statement. If he makes a statement it was under coercion, or —
MR. LAWS: We feel like the facts surrounding the confession it is whether or not the Court — especially due to the fact that the law requires the Court to look at a signed confession, and —
THE COURT: All right.
MR. LAWS: Without waiving rights, other than the circumstances not surrounding the confession, I would like to call my client.”
James Eaton then testified at the in-chambers hearing and denied making the statement at all. He said he was shocked and confused at his arrest; that the officers advised him it would be better for him If he would “come clean”; that they threatened to “hang him from the highest tree” and make an example of him. On cross-examination Eaton testified in part as follows:
“Q. You did make the statement that has been referred to here?
A. If I did—
Q. Did you?
A. No, sir, I did not.
Q. You didn’t? Are you saying that under oath today? That you didn’t make the statement that has been referred to here?
A. No, sir.
Q. Do you recall having your rights read to you?
A. Yes, but I didn’t understand them.
Q. What was it you didn’t understand?
A. I didn’t understand any of it really.
Q. You said at the time you did, did you not, that you understood?
A. I don’t recall saying it.”
At the close of the in-chambers hearing the trial court ruled as follows:
“The Court is going to admit the statement. Save your exceptions. The whole thing in chambers here becomes a question of fact for the jury to determine. It is a question of fact whether they took it or didn’t take it.”
Detective Snow then testified in open court in part as follows:
“Mr. Eaton stated that he had sold ten lids of marijuana to Johnnie Rivers, that Johnnie Rivers had not paid him for this marijuana, that it was to be paid for later, that he did not know what he was going to do with it, or where he was going to sell it, that he would rather not tell us where he had obtained it himself.”
Detective Sergeant William Briscoe also testified in corroboration of Detective Snow’s testimony as to the statement made to them by Eaton. The appellant James Eaton did not testify before the jury.
It is clear from the record before us that the prosecuting attorney was taken by surprise at Rivers’ denial of having previously implicated Eaton as the one from whom he purchased marijuana and by his refusal to testify under advice from his and Eaton’s attorney as to whether he had made such purchase from Eaton. The record is not clear as to the basis for Rivers’ fear of self-incrimination by testifying as to whether he purchased marijuana from Eaton. Rivers had been convicted on a guilty plea of selling marijuana to Gooch and his and Eaton’s attorney explained Rivers’ refusal to testify in the following language:
“First of all, after Mr. Rivers’ parents and Mr. Streett had a little misunderstanding the other day they came to me, as an attorney, and asked me to represent them. As such, they gave me information and asked me whether or not their son had the right to take the Fifth Amendment. He pled guilty and was convicted in Pope County of selling part of this marijuana he got from my client.
THE COURT: This man was convicted of selling?
MR. LAWS: He wasn’t charged with purchasing from Eaton. He was charged and convicted of selling a part of it to somebody else.” (Emphasis added).
The record indicates that other pertinent evidence would have been available to the state had the state’s attorney known that Rivers would refuse to testify on advice of his and Eaton’s attorney. But as the record now stands, there was no evidence presented connecting Eaton with the sale or delivery of marijuana to Rivers except the testimony of Detective Snow and Briscoe that Eaton had told them he had made such sale.
Ark. Stat. Ann. § 43-2115 (Repl. 1964) reads as follows:
“A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that such an offense was committed.”
In the case at bar there was no evidence that marijuana was sold or delivered to Rivers by anyone. The judgment of the trial court is reversed and this cause remanded for a new trial.
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Frank Holt, Justice.
Appellant’s husband was accidentally killed during the scope of his employment with appellee Ozark Forest Products, Inc. Admittedly, the claim is compensable. The appellee insurance carrier began paying appellant widow $>22.38 per week and the balance of the benefits was paid to the six minor children of the deceased by a previous marriage. On appeal the widow contends that the commission, affirmed by the circuit court, should have awarded her a greater weekly sum and, further, she was entitled to a lump sum settlement which the commission denied. We first consider appellant’s contention that she was entitled to a greater weekly award of benefits.
Appellant, the deceased, seldom worked a full five day week. This was due to the nature of his employment, the timber industry, which made work available to him subject to weather conditions as well as the timber supply. The number of days per week worked by the deceased was unpredictable. There was no guarantee of a full work week. However, the decedent always worked whatever number of hours available to him.
The commission, based upon the referee’s findings, made their award based on the previous 52 week period as follows: the commission ignored 18 two or three day work weeks as well as a single one day work week; it then utilized only the balance of 33 four and five day work weeks performed by the deceased. The earnings for those 33 weeks totalled $2,109.50 which produced an average weekly wage of $63.93. The compensation rate is 35% of that figure or $22.38 per week benefits for the appellant widow. Appellee makes the argument that the com mission was most generous inasmuch as it discarded all of the two and three day work weeks.
Appellant, however, asserts that the award should have been based on a full week’s pay or $80 per week which would result in $28 per week in benefits for her ($80 x .35 = $28). Appellant relies upon the first part of the statute, Ark. Stat. Ann. § 81-1312 ("Repl. 1960), which reads:
Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of accident, and in no case shall be computed on less than a full time work week in the employment.
Appellee avers that the award was proper and invoked as controlling the latter part of the statute, which reads:
If, because of exceptional circumstances, the average weekly wage cannot be fairly and justly determined by the above formulas, the Commission may determine the average weekly wage by a method that is just and fair to all parties concerned.
Neither party appears to contend that the other alternative provision in the statute, piece basis employment — dollars per ton, per pound, per square foot, is applicable.
The statute at first blush may appear inconsistent and ambiguous. However, we are familiar with the legislative intent in this area and we hold that the first part of the statute relied upon by appellant is clear and controlling in the case at bar. It is undisputed that the decedent’s "contract of hire in force at the time” of his accident was based upon the agreed payment of $2 an hour, eight hours a day and a five day (40 hour) work week whenever work was available. He always worked when needed. In these circumstances, the statute clearly requires that a fulltime work week must be used as a basis for computing the benefits. Furthermore, it is well established in workmen’s compensation cases that when doubt exists we must remember the Workmen’s Compensation Act is remedial and should be construed liberally to effectuate its purpose.
Although this case marks our initial interpretation of the problem under the present act, we note that our decision is not a novel one. We refer to our earlier Workmen’s Compensation Act, Act 319 § 12, Acts of Ark. (1939), which provided:
Except as otherwise specifically provided, the basis for compensation under this Act shall be the average weekly wages earned by the employee at the time of the injury, such wages to be determined from the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury divided by fifty-two; but if the injured employee lost more than seven days during such period, although not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted. (Emphasis added.)
The result of that process, in the case at bar, would be to compensate the widow based on a full work week’s pay, just as the present statute does.
In interpreting the Act of 1939, the predecessor of our present act, the court in Mack Coal Co. v. Hill, 204 Ark. 407, 162 S.W. 2d 906 (1942), was concerned with benefits for coal miners who did not work in the summer months. The coal miner was a seasonal laborer just as the timber worker is here. There we said:
In case of doubt, recourse is had to the average an employee has earned during a fixed period. But where, as in the cases here, uniformity prevails, and the worker’s capacity to earn is equal to what he did earn when employment was available, it is harsh to apply a strict rule of exclusion, the effect of which is to diminish a known basic rate of pay.
The court also characterized Act 319 as remedial and to be construed liberally to effectuate its purpose and further said that since:
... § 12 is the so-called yardstick by which compensation is to be measured, we cannot agree that periods of non-operation are not to be counted as lost time, thereby reducing the divisor to the number of weeks remaining, as contrasted with fifty-two.
As previously indicated, appellant widow’s benefits should be computed on a fulltime work week. See also Lexington Mining Co. v. Richardson, 286 Ky. 418, 150 S.W. 2d 889 (1941).
However, we cannot agree with appellant’s contention that the commission erred in not granting her request for a lump sum settlement as to her portion as a claimant. § 81-1319 (K) extends to the commission the authority to grant lump sum compensation “whenever the commission determines that it is for the best interests of the parties. ...” The statute extends to the commission broad discretionary powers in granting lump sum settlements.
Appellant acknowledges that lump sum settlement is an extraordinary remedy that must be used sparingly. If there is substantial evidence to support the decision of the commission, we must affirm. St. Michael Hospital and Argonaut Ins. Co. v. Wright, 250 Ark. 539, 465 S.W. 2d 904 (1971). Appellant testified that if she were given a lump sum settlement she would pay off her debts and buy a mobile home. Her testimony indicates that would involve an expenditure of almost $7,000 of a proposed lump sum award of almost $17,000. The payment of attorney’s fees, debts, and the purchase of the mobile home would take approximately one-half of the lump sum settlement. The commission might very well determine this to be against her own best interests. Her testimony reveals no plan to utilize the money for training or rehabilitation. Of course, should she die or remarry after an award of a lump sum settlement, the resulting increased benefits to the deceased’s minor children would be affected. They are “parties” to this action with a definite interest and their mother objected to the settlement. We cannot say that the denial of appellant’s request for a lump sum payment constituted an abuse of discretion on behalf of the commission or the commission’s action is not supported by substantial evidence. Certainly, the legislature entrusted the commission with the power and authority to determine the issue.
For the error indicated, the judgment is reversed and the cause remanded for proceedings not inconsistent with this opinion.
Affirmed in part and reversed in part.
Harris, C.J., not participating. | [
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Frank Holt, Justice.
Appellant was convicted by a jury of the crime of assault with intent to kill. His punishment was assessed at 19 years in the penitentiary and from a judgment on that verdict comes this appeal. Appellant first contends for reversal that the court erred in its failure to grant appellant’s motion for a continuance. We cannot agree.
Ark. Stat. Ann. § 43-1705 (Repl. 1964) provides that defendant must show “sufficient cause” to' secure a continuance. Appellant acknowledges that in interpreting this statute the rule is well established in our state that a motion for continuance is addressed to the sound discretion of the trial court and we do not reverse bn appeál absent the showing of abuse of discretion. Scates and Blaylock v. State, 244 Ark. 333, 424 S.W. 2d 876 (1968) and Nowlin v. State, 252 Ark. 870, 481 S.W. 2d 320 (1972). Furthermore, the burden is upon the appellant to demonstrate abuse of discretion. Perez v. State, 236 Ark. 921, 370 S.W. 2d 613 (1963). Therefore, in the instant case, appellant must demonstrate such prejudice resulting from the denial of his motion for continuance as to result in ineffective representation.
A few days after the commission of the alleged offense, the appellant, along with a co-defendant, was arraigned at which time the public defender was appointed as counsel to represent them and a trial date was set approximately three weeks later. On trial date the court permitted the public defender to withdraw as counsel for appellant because there was a conflict of interest inasmuch as the public defender would be representing a witness for the prosecution, appellant’s co-defendant who testified for the state. The trial court immediately appointed present counsel to defend appellant. When the trial began 1 1/2 days later, appellant’s counsel made an oral motion for a continuance based upon the statement that even though he had investigated the case as thoroughly as possible, the case should be continued "due to the number of witnesses the state will call (approximately ten witnesses) and because of the necessity of talking with the defendant and talking with witnesses for the defendant;” that it was impossible to talk with all witnesses before the trial and it would be “practically impossible to defend” the appellant properly; that it had come to counsel’s attention “last night that this defendant has had psychiatric problems in the past and that in order to develop a possible defense of mental deficiency” it would be necessary to have a thorough psychiatric examination; that the defendant’s relatives had not been contacted and “last night” appellant’s father had called appointed counsel; that appellant’s father was en route and “it is believed the father can give vital information in regard to defendant’s background and in regard to matters necessary to properly defend this person;” and that non-resident character witnesses could be contacted.
In reply to the court’s inquiry, appellant’s counsel acknowledged that the public defender’s office had furnished him the results of the investigation of the case, consisting of a narrative report of three of the state’s nine witnesses. It was determined that some of these witnesses would testify with respect to the circumstances surround ing the arrest and items of evidence. One of appellant’s two newly appointed counsel stated that "one major witness we have not talked to,” other than a firearm expert, is the prosecuting witness who had been out-of-town. It was then determined that the prosecuting witness was present in the court room and available for interrogation. Upon the court’s further inquiry, appellant’s counsel stated that a local psychiatrist was scheduled to examine the appellant that very morning. Further that his examination would require 5 1/2 hours and another two or three hours for an evaluation. The court then remarked that he would permit the appellant’s attorneys to talk to the witnesses, examine the evidence and “let you have Dr. Finch (local psychiatrist) examine him” and that if Dr. Finch found the appellant psychotic, “I’ll send him to the state hospital now and that ends it, but if he says he isn’t, I don’t know of any reason we can’t go to trial.” Thereupon, late that morning the court impaneled the jury and recessed until 9 a.m. the next morning, which afforded the appellant additional time for trial preparation.
The next day the state’s prosecuting witness, whom the court had made available to appellant, testified that in the late hours of the night, as he was driving his truck on a local highway, a car approached him and someone fired through his windshield; that in a few minutes this car turned around and as it came alongside his truck the occupant of the rear seat leaned out the window and fired a shot through the door on the driver’s side. A short time later appellant’s co-defendant, testifying for the state, admitted that he was the driver of the car and they had engaged in a shooting spree late that night, consisting of shooting out street lights, and appellant had fired the two shots from their vehicle at the truck driver. The appellant, testifying in his own behalf, admitted the escapade, except he expressly denied that he shot at an notorist. The state and the defense stipulated as to he testimony of the firearm expert' and the other witnesses merely testified as to the circumstances of the arrest. Appellant’s grandfather attended the trial and testified that in Arizona where he lived the appellant had enjoyed a good reputation as a resident there.
The local psychiatrist testified that he had conducted his examination and concluded his evaluation. He found appellant to be “fairly normal psychiatrically” although somewhat irresponsible, impulsive and adolescent. “[A]l-though the patient is twenty-one years of age, I would feel that he is still going through adolescent behavior.” “[N]o evidence of psychosis at the present time.” “[N]o evidence of organic brain disease at the present time.” His evaluation was based entirely upon his examination of the appellant. The record does not reflect there were any medical records in existence with reference to appellant’s asserted mental deficiency and neither did the defendant testify that he had suffered in the past from any mental problems. It was not indicated by Dr. Finch, appellant’s own witness, that he needed additional time or information in order to adequately evaluate the appellant’s mental condition.
It appears that only one subpoena was issued for a witness at appellant’s request. This individual could not be located and we cannot understand from the record what would be the nature of the testimony of this witness as no proffer of proof was made. Another local witness who appeared at appellant’s request was not used inasmuch as counsel and appellant were of the view that he would be of no assistance as a character witness. We note that appellant had testified that he was convicted of a felony in another state for the sale of dangerous drugs and, locally, he was convicted of disorderly conduct and twice for public drunkenness.
Our rule, as stated supra, is that the granting or refusing of a continuance is within the sound discretion of the trial court and the burden is upon the appellant to demonstrate abuse of discretion in accordance with the general rule. In Chambers v. Maroney, 399 U.S. 42 (1970), the court observed: ,
But we are not disposed to fashion a per se rule requiring reversal of every conviction following tardy appointment of counsel or to hold that, whenever a habeas corpus petition alleges a belated ap^ pointment, an evidentiary hearing must be held to determiné whether the defendant has been denied his constitutional right to counsel.
We are of the same view.
In several of our recent Arkansas cases dealing with eve of trial appointment or retention of counsel, we have upheld a denial of a motion for continuance. In Brown v. State, 252 Ark. 846, 481 S.W. 2d 366 (1972), we held there was no prejudice demonstrated where the motion for continuance was denied when the defendant himself changed counsel five days prior to trial. In Gathright v. State, 245 Ark. 840, 435 S.W. 2d 433 (1968), we approved a denial of a continuance where new counsel was employed seven days prior to trial; and in Ebsen v. State, 249 Ark. 477, 459 S.W. 2d 548 (1970), we found no abuse of discretion in denying a continuance where counsel was retained three days prior to trial after previous counsel withdrew due to defendant’s refusal to pay him. In Therman v. State, 205 Ark. 376, 168 S.W. 2d 833 (1943), we found no abuse of discretion in a refusal of a motion for a continuance where the defendant’s counsel did not show up the day of the trial and another attorney was appointed and the trial was delayed only three hours. In that case, the defendant knew for several days his counsel would not show up and all witnesses were present in the court room.
However, the appellant makes the argument that in those cases continuances were given previously, or change of counsel was the voluntary act of the defendant, or defendant knew of the impending withdrawal. Therefore, they can be distinguished from the case gt bar inasmuch as the change of counsel was unconnected with defendant’s conduct.
We are of the view from the totality of the circumstances that the appellant has not met the required burden of showing that he was prejudiced by late appointment of present counsel. When the trial began, 1 1/2 days after appointment, the court was recessed until the next day giving appellant’s counsel additional time for trial preparation. The public defender had made available to present counsel results of his investigation. The “major” witnesses in the case were the prosecuting witness and the firearms expert. The testimony of the firearm expert was given by stipulation. The court made available to the appellant’s counsel the prosecuting witness for questioning as well as all other witnesses. A sufficient time was given for a mental examination by a psychiatrist of appellant’s own choice. At trial the next day, after this extension of time, appellant’s counsel did not deem it necessary to renew his motion for a continuance nor add any additional basis for a continuance.
Significantly, during the time the jury was deliberating, the trial court made an extended inquiry of appellant and his counsel as to whether either of them had any complaint with reference to the trial. Neither expressed any complaint. The appellant stated that he was “satisfied” with the presentation of his case and that his counsel had interviewed him for two days with reference to his case. His counsel stated that he had seen appellant during this time for a “total of at least 8 to 12 hours.” Appellant acknowledged that they had answered all his questions and had tried to get all the witnesses he desired. “I don’t have any complaints. They did the best they could, with what they had.” Counsel had treated him as a gentleman and researched and answered any questions that he had. He agreed that his counsel’s decision was correct not to use a character witness he had asked them to call.
We agree as in Chambers v. Maroney, supra, that our courts should always make an early appointment of counsel in indigent cases and further we cannot formulate “a per se rule” or standard which would require a reversal of every conviction as a result of a tardy or late appointment. Although the case at bar has given us much concern, however, in considering all the circumstances of the late appointment of counsel, we cannot say that the appellant has met the burden of demonstrating that the court abused its discretionary authority. We will, of course, continue to closely scrutinize the entire proceedings whenever the issue of late appointment of counsel is presented.
Appellant next contends for reversal that the court erred in permitting the prosecuting witness to testify about his position in the truck at the time the second shot was fired through the door on the driver’s side inas much as his testimony was “so inflamatory as to materially prejudice appellant’s rights at the time.” We agree with the trial court that the prosecuting witness certainly could testify as to where he was sitting and where he would normally be sitting. The appellant favors us with no citation to support his contention. Certainly the prosecuting witness should be allowed to state what his sitting position as a driver was under normal driving conditions and as to his position to avoid bodily injury at the time he was fired upon the second time. We cannot understand how this testimony could be said to be inflamatory or conclusionary so as to materially prejudice appellant’s rights.
Affirmed.
Fogleman, J., concurs. | [
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Frank Holt, Justice.
Appellant brought this action for a divorce against the appellee and for a determination of their respective property rights. The issues were joined by appelee’s counter-claim by which she also sought a divorce and adjudication of her property rights. The chancellor found that the appellant husband did not prove grounds for a divorce and “the proof falls far short of establishing fraud or deceit” on the part of the appellee wife when her husband made her joint owner of all his personal and real property; that the appellee had established her alleged grounds for divorce based upon personal indignities; that the various instruments, which included passbook savings accounts, certificates of deposit and deeds which were changed by appellant husband to create tenancies by the entirety or joint ownership, were valid; and that the trial court was not divested of jurisdiction by the appeal from the divorce decree inasmuch as the court specifically reserved jurisdiction for thirty days in order for the parties to effect an agreement between themselves as to a division of their property rights. When this was not accomplished within the specified time limit, a final order was then rendered.
For reversal appellant first contends that the court erred in upholding the validity of a revocation by Leonard (appellant) of his revocable trust and subsequent transfer of his property to the joint ownership of himself and his wife, Christine (appellee), inasmuch as a confidential relationship existed between them with Christine being the dominant party which created a presumption of coercion or fraud, which presumption Christine did not rebut with sufficient evidence that the instruments were freely and voluntarily executed. Our cases hold that where a confidential relationship exists between a donor or grantor and a dominant donee or grantee, then that donee or grantee must produce evidence to show that the instruments were freely and voluntarily executed. Norton v. Norton, 227 Ark. 799, 302 S.W. 2d 78 (1957), involving a mother-grantor, son-grantee relationship; Gillespie v. Holland, 40 Ark. 28 (1882), involving a sister-grantor, brother-grantee relationship; Young v. Barde, 194 Ark. 416, 108 S.W. 2d 495 (1937), where the gift to the dominant daughter-grantee was referred to as prima facie void; and Jamison v. Duncan, 233 Ark. 780, 348 S.W. 2d 709 (1961), involving an aged and mentally weak uncle-grantor. Of course, the confidential relationship based on faith and repose as well as the dominant position must be supported by testimony before the presumption of coercion will arise. Donaldson v. Johnson, 235 Ark. 348, 359 S.W. 2d 810 (1962).
Leonard and Christine were married on July 31, 1971, when he was 68 and she was 47. It follows that a confidential relationship was therefore established by the marriage. Of course, it is recognized that no greater confidential relationship is known to the law than that which exists between a husband and wife. See Gillespie v. Holland, supra; 41 Am. Jur. 2d, Husband and Wife, § 272.
We now review the evidence with respect to the dominant party in this confidential relationship. In 1967 Leonard had suffered permanent brain damage from a stroke. A year later his wife died. On April 27, 1971, Leonard signed a will making numerous relatives of his and his deceased wife his beneficiaries of a substantial estate. On June 8, 1971, he executed a revocable trust to the same effect. These instruments were drafted by a Little Rock attorney after consultations with him. He was driven there from his home at Hampton by one or two of his relatives who were minor beneficiaries. During the first part of this year, he proposed marriage to three different women in the locality. Each refused his proposal. A widow testified “[H]e just didn’t know and he wasn’t capable of knowing what he wanted.” Another woman said that the first time he came to see her he said he was “looking for a wife” and “it kinda of stunned me.” This woman said he was unable to speak distinctly because of his stroke. The other woman testified that he surprised her by proposing marriage the first time she was with him and that on May 29, after several dates, she refused marriage. She also noticed he had a definite speech problem. He assured each of these women that they would never need to continue work since he was financailly well to do.
In the early part of 1971, through a mutual friend, Leonard was introduced to Christine, who had recently returned to her local community from out of state employment after several years’ absence. In June, he proposed marriage to her. About the middle of July she accepted his proposal and they were married on July 31. About a month following the marriage, he told her about the revocable trust and under the terms of it she would receive nothing. Within a few days, accompanied by him, she drove to El Dorado to consult with an attorney who had previously represented her father. As a result of the conference Leonard signed shortly thereafter (September 2, 1971) a revocation of his trust agreement and then conveyed all of his real property and various savings accounts to their joint ownership. In March, 1972, they moved into a new home at nearby Tinsman, Arkansas. The construction and furnishing approximated $36,000 and were paid for by the sale of some of Leonard’s timber. At the time they moved, she acquired possession of all his passbooks and certificates of deposit (totaling approximately $117,000) and kept them in her possession until this litigation arose in July, 1972, which was one year after their marriage. The week before Christine left Leonard she cashed one certificate of deposit for approximately $15,000 at Camden. She immediately drove to El Dorado and deposited $14,000 of the funds in a bank in her name.
A doctor, who treated Leonard in 1967 following his stroke, testified that he suffered permanent brain damage and as a result he became dependent and easily subjected to influence by others. A clinical psychologist examined and tested Leonard a short time before the trial and it was his opinion that his mental condition was below average; his judgment in his social affairs was in the mentally deficient range; and it would be difficult for him to function in some areas of life. Furthermore, that due to Leonard’s mental deficiency he would depend on any person in whom he had trust and confidence.
The attorney who drafted his revocable trust about two months before the marriage testified that, although he appeared to have testamentary capacity, Leonard want ed someone to assist him in making his decisions and he indicated that he needed greater assistance in making decisions than the average client. The purpose of the trust was to prevent a “prospective wife” from getting any of his property. However, if he “got along fine” upon remarriage he wanted to cancel the trust and “take care of his wife.” Other evidence was adduced by lifelong friends that before Leonard’s stroke he was mentally alert and above average and since then he was an entirely different individual; that he got things “backwards;” that he refers to a man as “she” and a woman as “he;” that he was no longer talkative and had a bad memory. Leonard’s relatives testified that he could not talk well and that someone had to write his rent receipts and he was unable to take care of his store and rent houses alone.
Leonard himself testified. During his testimony he referred to Christine as “him” or “he”. He would also refer to a man as “she” and if he referred to a woman he used the pronoun “he” or “him.” He was unable to remember the names of the various financial institutions in which he had his savings deposited. He could not recall the counties where he held real estate consisting of approximately 500 acres, other real estate and rental property. He was unable to remember his sister-in-law’s name who cared for him after his stroke and assisted him in his store. He had difficulty in remembering Christine’s unmarried name nor could he remember the name of his closet living relative, a sister. He was unable to give the date of his marriage to Christine and where they spent their honeymoon. When asked why he transferred his property to Christine as a joint owner, he said “I couldn’t tell you that. I reckon I was doing it because Christine wanted it that way.”
In our view this evidence is sufficient to establish that Christine was the dominant personality in this marriage relationship. This is true even though there was evidence that Leonard was physically able to drive a car, cultivate a garden, collect rent, hunt and cook. Since we hold that this evidence is sufficient to invoke the presumption of coercion or the instruments were not freely and voluntarily executed, the burden of producing evi dence shifts to the party who must rebut the presumption. The presumption of coercion is a strong one. The presumption is not a “Thayer’s bubble” which bursts upon the production of any evidence of a flitting bat “disappearing in the sunshine of actual facts.” Mockowik v. Kansas City, St. J. & C.B.R. Co., 196 Mo. 550, 94 S.W. 256 (1906), quoted in McCormick, Evidence, § 345 (2nd. Ed. 1972). In Gillespie v. Holland, supra, we said:
.... contracts, and most especially gifts, will be scrutinized with the most zealous care when made between parties who occupy such a confidential relation as to make it the duty of the person benefited by the contract or bounty to guard and protect the interests of the other and give such advice as would promote those interests. . . .
One scholar has written:
Except as the court may be restrained by constitutional requirements of due process of law. . ., there would seem to be no reason in law or logic why there should not be accorded to any or all presumptions the weight which the court feels would best serve the interests of justice. If dissipation by a bare denial from an interested witness seems to accord too trifling an effect to a presumption, the court would seem justified to require more before the presumption is rebutted. Barnhart, Use of Presumptions in Arkansas, 4 Ark. L. Rev. 128, 141 (1950).
In Ball v. Hail, 196 Ark. 491, 118 S.W. 2d 668 (1938), the testimony of both the employer and the employee was held insufficient to overcome the presumption that the employee-driver was acting for his employer at the time of the accident, since both were interested witnesses.
The principal testimony, introduced to rebut the presumption of coercion or that the transactions when effected were not freely and voluntarily made, is Christine’s. She testified that the property was taken out of the revocable trust and placed in their joint names following an automobile accident about a month after their marriage. The evidence appears uncontroverted that this was the first time she knew of the antenuptial instrument precluding her from any statutory property rights. Christine testified that, as a result of the wreck, Leonard worried that she would receive nothing if he died and it was his own idea to revoke the trust and change the will to protect her. In the circumstances of this particular case, we hold that the testimony of Christine, an interested witness, was not sufficient to rebut the presumption that the transactions between her and Leonard were not freely and voluntarily made. Neither was the testimony of an abstractor, who notarized the two deeds the day following the revocation of the trust, the purchaser of the timber, nor the contractor, who constructed their new home, sufficient due to their very limited knowledge of the relationship between the parties and the conveyances. Therefore, the chancellor erred in upholding the trust revocation and property transfers.
Appellant next contends that the court erred in refusing to grant him a divorce on his complaint and that the divorce granted Christine on the counter-claim is not supported by a preponderance of the evidence. Suffice it to say that it appears that Leonard’s proof of alleged indignities is absolutely uncorroborated, as is required, even though the corroboration need only be slight. Welch v. Welch, 254 Ark. 84, 491 S.W. 2d 598 (1973). Christine was granted a divorce relying also on the personal indignities provisions of Ark. Stat. Ann. § 34-1202 (Repl. 1962). Christine testified that Leonard shoved her with a crutch in the chest or throat resulting in a broken collarbone. Leonard denied the attack stating she injured herself. One witness testified that when she saw Christine in the hospital she observed a very small bruise about her collarbone. No other witness corroborated Christine’s testimony about any incident or systematic mistreatment. Although only slight corroboration is required, the corroborating testimony must be directed towards specific acts and conduct and not an isolated incident. Welch v. Welch, supra. In our view neither party was entitled to a divorce.
Appellant next contends that his appeal from the April 5, 1973, decree divested the trial court of jurisdic- don and therefore the subsequent order on April 25, 1973, awarding an attorney’s fee and a division of the property was improperly rendered. By a formal decree dated April 5, 1973, the chancellor denied Leonard a divorce, refused to void the transactions in which Christine was made a joint owner of Leonard’s property and granted Christine a divorce on her cross-complaint. At the same time, the court stated that it was taking under advisement the disposition of their property rights for a period of thirty days in order to permit the parties to resolve this controversy between themselves. Further, “that in the event such property division is not agreed upon within the said thirty days, the Court will grant a hearing and determine that issue and enter an order either designating division in kind or sale of same and a division of the proceeds thereof.” Leonard promptly appealed.
On April 18, 1973, being unable to effect an agreement respecting the distribution of their asserted property rights, Christine petitioned the court for a supplemental attorney’s fee (a $500 temporary fee was initially awarded) and further petitioned the court that the cash assets be distributed equally and that the real property allegedly owned by Leonard and Christine jointly be appraised, sold and the assets divided equally. Also that the payment of $500 per month to each party from the impounded funds be continued. Leonard responded asserting that the court no longer had jurisdiction inasmuch as he had already appealed from the April 5 decree. On April 25, following a hearing, the chancellor decreed $5,000 as a supplemental attorney’s fee, ordered the real property appraised, sold and all cash assets divided euqally, and refused a continuance of the $500 monthly payment from the impounded funds to each party. The chancellor specifically found that “no final appealable order was entered by this court on the 5 th day of April, 1973, and the court does have jurisdiction . . . and IT IS FURTHER ORDERED, CONSIDERED AND ADJUDGED THAT the Decree of April 5, 1973, and this order comprise a Final Order in this case.” Appellant also appealed promptly from this decree.
In McConnell & Son, et al v. Saddle, 248 Ark. 1182, 455 S.W. 2d 880 (1970), we held that a judgment, to be final, must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. There we said:
Cases can not 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 . . .
See also Piercy v. Baldwin, 205 Ark. 413, 168 S.W. 2d 1110 (1943).
Obviously in the case at bar, the chancellor was avoiding a piecemeal appeal since he limited their negotiations to thirty days which is the statutory time for an appeal. Ark. Stat. Ann. § 27-2106.1 (Repl. 1962). Well within that thirty days he adjudicated all issues between the parties. The chancellor also found that the latter order was intended to constitute the final order. In the circumstances, we find no merit in appellant’s contention. Certainly no prejudicial effect is demonstrated. We affirm that part of the decree allowing the supplemental attorney’s fee. Let it be remembered that the property in controversy consists of approximately $117,000 in cash assets and is in excess of 500 acres, together with other real estate, timber and rental property. In fact, the amount of the fee is not questioned on appeal.
The decree is reversed and the cause remanded for proceedings not inconsistent with this opinion. In doing so, it is without prejudice for the appellee to assert and establish any of her statutory rights as a result of this marriage, including maintenance.
Reversed in part — affirmed in part.
Harris, C.J., not participating. | [
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Per Curiam.
The appellant Cleveland Bailey was found guilty in 1991 of possession of cocaine with intent to deliver and possession of drug paraphernalia. He was sentenced as an habitual offender with more than one but less than four prior felony convictions to concurrent terms of imprisonment of sixty years for each conviction. We affirmed. Bailey v. State, 307 Ark. 448, 821 S.W.2d 28 (1991). On August 21, 1992, appellant filed in the circuit court a petition styled, “Petition for Declaratory Judgment and Writ of Mandamus to Enforce Judgment.” He contended in the petition that it was unjust for a person to be subject to a greater penalty for some drug offenses than would be applied for multiple homicide. He concluded that the punishment for drug offenses was “unusual” under the Arkansas Constitution. He requested a declaratory judgment that the sentence was in violation of the State constitution. He further requested a writ of mandamus. Relief was denied, and the record has been lodged here on appeal. Appellant now seeks appointment of counsel and an extension of time to file the appellant’s brief. The state has filed a motion to dismiss the appeal.
The appellee’s motion to dismiss the appeal is granted. It is clear that the appellant was not entitled to a declaratory judgment or writ of mandamus in this case. See Fox v. State, 309 Ark. 619, 832 S.W.2d 244 (1992); Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991).
Appellant did not contend that his sentences exceeded the statutory maximum allowed by law. He argued only that he was entitled to a declaratory judgment and writ of mandamus because the sentences were out of proportion for those which could be imposed for murder. Allegations which challenge the constitutionality of a circuit court judgment should be raised at trial and subsequently on direct appeal, not in a petition for post-conviction relief. A petition for post-conviction relief attacking a judgment, regardless of the label placed on it by the petitioner, is considered pursuant to our post-conviction rule, Criminal Procedure Rule 37. See Williams v. State, 291 Ark. 255, 724 S.W.2d 158 (1987). Rule 37 does not provide a means to challenge the constitutionality of a judgment where the issue could have been raised in the trial court. See Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). Moreover, the rule requires that petitions for post-conviction relief must be filed in those cases where the petitioner was convicted, after January 1, 1991, within sixty days of the date the mandate was issued upon affirmance. In the Matter of the Reinstatement of Rule 37 of the Arkansas Rules of Criminal Procedure, 303 Ark. 746, 797 S.W.2d 458 (1990). The mandate in petitioner’s case was issued January 10, 1992, but his petition was not filed until August 21, 1992, more than seven months later. The petition was therefore untimely. The timeliness of a post-conviction petition is jurisdictional and the trial court cannot grant post-conviction relief on an untimely petition. See Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989).
Motion for appointment of counsel and motion for extension of time to file appellant’s brief denied; appellee’s motion to dismiss appeal granted.
The sentence imposed for possession of drug paraphernalia, which is a Class C felony, Ark. Code Ann. § 5-64-403(c)(l) (1987), where a defendant has more than one but less than four prior felony convictions is 20 years. Ark. Code Ann. § 5-4-501(a) (4) (1987). A sentence of 60 years was imposed on petitioner, but, as stated, he did not challenge the sentence in the petition for post-conviction relief. | [
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Conley Byrd, Justice.
Appellant Assembly of God Church, Lambert, Arkansas, pursuant to Ark. Stat. Ann. § 82-401 (Repl. 1960), applied to the County Judge of Hot Spring County for a permit to establish a cemetery upon an acre of land adjoining its church building. Appellees and cross-appellants Berl Ford, et al, opposed the granting of the application. The county judge after hearing evidence denied the application. On appeal to the circuit court appellant took the position that under Ark. Stat. Ann. § 82-401, supra, the county judge had no discretion once the State Health Department approved the application. Appellees and cross-appellants took the position that the county judge had some discretion and that it was necessary for the court to hear evidence on the need and desirability of a cemetery on the desired site. After both parties announced that they were willing to stand on their respective propositions, the circuit court noted that the State Health Department had approved the site for a cemetery and ordered the county judge to issue the permit. In lieu of a supersedeas bond on appeal, the circuit judge ordered that no interments be made within one year from the date of the order. Although the church appealed from the “one year” moratorium, it now concedes that the issue is moot and asks us to affirm the circuit court. Cross-appellants raise several contentions including the contention that if the county judge had no discretion once the State Health Department approved the application then the church’s remedy should have been by mandamus instead of by appeal. Since we consider the stipulation in the trial court to waive all contentions except the principal one having to do with a construction of the statute, we consider only the issue which the parties stipulated to before the trial court.
The statute here involved provides:
“Whenever it is proposed to locate a cemetery, or to extend the boundaries of an existing cemetery, the party, or parties, so proposing shall make written application to the county judge, or to the mayor of an incorporated city or town, according to whether said cemetery, or extension of a cemetery, is to be located in the jurisdiction of one or the other of these authorities, describing accurately the location and boundaries of the proposed cemetery, or extension of a cemetery. Before acting upon the application the county judge, or the mayor, as the case may be, shall refer the application to the State Board of Health, for investigation from a sanitary standpoint. In making such investigation the State Board of Health shall take into consideration the proximity of the proposed cemetery, or extension of a cemetery, to human habitations, the nature of the soil, the drainage of the ground, the danger of pollution of valuable springs or streams of water, and such other conditions as would bear upon' the situation. Having completed its investigation as promptly as can be done, the State Board of Health shall submit a report to the judge, or to the mayor, as the case may be, and either approve or disapprove the. application. Having received the report from the State Board of Health, the judge, or the mayor, as the case may be, shall, as recommended by the State Board of Health, either grant, or deny, the application. Should the application be granted the judge, or the mayor, as the case may be, shall issue to the party, or parties, making the application, and in such form as may be prescribed by the State Board of Health, a permit to establish or extend the cemetery in question. The said permit shall be recorded in the office of the county judge, or the mayor, and a copy forwarded to the State Board of Health.
When this statute is construed together with Ark. Stat. Ann. §§ 82-411 through 82-426 (Repl. 1960), as amended (Supp. 1971), it at once becomes apparent that it applies only to cemeteries owned by a church, a municipal corporation, or a family or community not employing salesmen or paying sales commissions. Like, the trial court, we agree that the county judge has no discretion under the statute to refuse a permit once the State Health Department has given its approval.
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Humphreys, J.
Appellant, owner of the Yellow Cab Company, institutes this action in the chancery court of Garland County to enjoin appellee, a competitor in the taxicab business, from parking and soliciting taxicab business on the property of the Missouri Pacific Railroad Company, in the city of Hot Springs, Arkansas, alleging that he had an exclusive contract with said railroad company for said privilege and had entered into a bond for the faithful performance of the contract on his part; and further alleging that he had no adequate remedy at law by which to protect and enjoy his privilege.
Appellee filed an answer denying that he had parked his taxicabs and solicited taxicab business on the property of the Missouri Pacific Railroad Company; also denying’ that the Missouri Pacific Railroad Company had authority to grant appellant an exclusive right to park his taxicabs and solicit business on its property, such privilege being a monopoly, against public policy and therefore contrary to law.
The cause was submitted to the chancery court apon the pleadings and evidence introduced by the respective parties which resulted in a dismissal of appellant’s complaint for the want of equity, from which is this appeal.
The contract awarded appellant by the Missouri Pacific Railroad Company was introduced in evidence. The latter part of the third paragraph thereof reads as follows :
“Carrier (Missouri Pacific Railroad Company) also grants to contractor (appellant) the right, exclusive so far as lawful, to solicit in the waiting rooms and upon the passenger station grounds and premises of carrier at junction, passenger and baggage transfer business destined to points in Hot .Springs and vicinity.” * * *
' An ordinance of the city of Plot Springs dated July 7,1914, was also introduced in evidence. Section 1 of the ordinance provided for the closing of portions of Olive Street between Elm and Yalley streets to public travel. Section 2 of the act is as follows:
“The above described portions of Olive and Yalley streets are hereby granted to the St. Louis, Iron Mountain & Southern Railway Company for depot and other railway purposes, which may now or may hereafter be needed by the St. Louis, Iron Mountain & Southern Railway Company.”
The decree rendered by the chancery court of Garland County at its December term, 1926, in the case of Missouri Pacific Railroad Company, plaintiff, v. Leo P. McLaughlin, as city attorney of Hot Springs, Arkansas, V. S. Ledgerwood, as judge of the municipal court of Hot Springs, Arkansas, and Robert A. Jones, as mayor of the city of Hot Springs, Arkansas, defendants, was introduced in evidence, which sustained the right of said railroad company, under the law and ordinance of the city of Hot Springs, Arkansas, to maintain, lay, con struct and operate its tracks, side tracks, turnouts and switches across that portion of Orange and Olive streets in said city which lies between Elm and Valley streets, provided said condition iby such construction and occupancy should not materially interfere with the traffic on said streets and use of said streets- by the public.
The undisputed proof in the record reflects that Olive Street, between Elm and Valley streets, was never actually closed but remained open after the passage of said ordinance in 1914 for use by the public and has been continuously used by the public as far east as the railroad track; that part of Olive Street east of the railroad track is open, but not used by either said railroad company or the public on account of its rough condition.
It is also reflected by the undisputed proof that appellee and all other1 owners olf independent taxicabs park their taxicabs and solicit business on what is known as the dead end of Olive-Street, being a space of about sixty by forty feet, which was allotted to them for parking purposes by the municipal authorities of said city, leaving the remainder of Olive Street out to Elm -Street, a space of about one hundred seventy by one hundred forty feet, for use by appellant.
It is also reflected by the undisputed evidence that all passengers debarking from the incoming trains enter Olive Street, and that, if appellee and the other independent owners of taxicabs are denied the use of the dead end of Olive Street to- park their taxicabs and solicit business they would have to park them on Elm Street where passengers do not get -off trains and where they could not solicit any business.
' It is also reflected by the undisputed proof that the dead end of Olive Street is the only part of Olive Street where appellee has parked his taxicabs and solicited business.
Under our view of the interest the Missouri Pacific Railroad -Company, successor to the St. Louis, Iron Mountain & Southern Railway Company, has in Olive Street between Elm and Valley streets it will be unnecessary to determine whether a railroad company may enter into a contract with a taxicab company granting said taxicab company the exclusive right and privilege of parking its cabs on railroad property for the purpose of soliciting and transporting to various parts of the city passengers that debark from its trains at its depots or terminals. Under the ordinance of the city of Hot Springs, relied upon by appellant as a basis for his suit, said railroad company acquired no private ownership in or exclusive control over Olive Street between Elm and Valley streets which it could farm out to taxicab companies, even if permissible under the law to make such exclusive contracts. The only right it acquired therein or thereon under the ordinance in question was for “depot and railway” purposes, which was construed in the G-arland Chancery Court in the case of the Missouri Pacific Railway Company v. McLaughlin et al., supra, and affirmed by this court , to mean that said railroad company might “maintain, lay, construct and operate its tracks, side tracks, turnouts, and switches across Olive Street between Elm and Valley streets in the city of Hot Springs, Arkansas, provided that in doing so it did not materially interfere with the traffic on said streets by the public. Independent of the ruling in the McLaughlin case, we are of the opinion that the ordinance upon which appellant relies as a basis for his suit vests no exclusive rights in said railroad company, as 'successor to the St. Louis, Iron Mountain & Southern Railway Company, to control traffic over and upon Olive Street between Elm and Valley streets, or to interfere with the use of the public thereon and therein.
No error appearing, the decree is affirmed.
Hart, C. J., and Kirby and McHaney, JJ., dissent.
McLaughlin v. Missouri Pac. R. Co., 175 Ark, 912, 300 S. W. 929. | [
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Leflar, J.
This is a. bill in equity to cancel a deed the execution of which was allegedly procured by fraud and overreaching. The defendants by cross-complaint sought possession of the land conveyed by the deed, the plaintiff having continued to occupy it up to the time of trial. The Chancellor rendered a decree for the defendants (a) declining to cancel the-deed and (b) directing issuance of a writ of possession in defendants’ favor. Plaintiff appeals.
The plaintiff, Miss Adelhied Gerlach, is an. elderly spinster who received conveyance of the land in question from a nephew on June 12, 1940. Her deed was duly recorded on that same day. She has had her home on the premises thus conveyed to her most of the time since then. On February 16, 1946, in the office of Bryan Mc-Callen, an attorney at Corning, she executed a deed of the premises to defendants (appellees), this being the deed which she now attacks. The deed recited a consideration of $1.00 only, but defendants testified that they had agreed to pay her, and did pay her, $550 in cash at her home later on the same day. This she denies. Defendants gave in evidence a receipt signed by Miss Ger-lach acknowledging payment of $550 to her by defendant Gladys Cooper on February 16, 1946. Plaintiff does not deny her signature on the receipt, but infers that defendants may have filled in the receipt after somehow inducing her to sign her name at the bottom of a blank piéce of paper. No affirmative evidence was given that this in fact did occur; she merely denied execution of the receipt without further explanation of it.
As to execution of tlie deed itself, plaintiff admitted her signature and acknowledgment, but testified that she thought she was signing something “for safekeeping” of her 1940 deed, and that she had no intention of selling her home. McCallen, the attorney and scrivener, testified that he no longer remembered the details of the transaction clearly (the trial was held more than three years after the deed was executed) but his “impression” was that he had read and explained the deed to her before she signed and acknowledged it before him. Both the defendants testified specifically that Miss Gerlach executed the deed with full knowledge of what she was doing.
The defendants testified that Miss Gerlach wanted the $550 payment kept secret because she hoped to get “on the welfare” and feared she would be rejected if the Welfare Board learned that she had this much cash on hand. There was other testimony, largely contradictory, about the' rent which she was to pay to the defendants after the conveyance and about the collection of interest-bearing loans which she had made to third persons, but it shed little light on the principal problem of whether the deed"was induced by fraud.
Taxes on the property were paid by the Coopers (defendants) after they received the deed. Miss Gerlach testified that she reimbursed them for the taxes paid. This they denied.
A neighbor testified that he tried to buy part of the land from Miss Gerlach in the latter part of February, 1946, and that she then told him she could not sell it because “Mr. Cooper had the deeds.”
“The requisite of evidence to avoid a deed . . . must transcend a preponderance. It must be ‘clear and convincing . . . ’ ” Alderson v. Steinberg, 199 Ark. 1165, 1167, 137 S. W. 2d 925, 927. The test in an effort to set aside a deed for fraud in its execution is whether there is “ a preponderance of the evidence which is clear and convincing.” Hiatt v. Hiatt, 212 Ark. 558, 569, 206 S. W. 2d 458, 463. The plaintiff (appellant) in seeking to set aside the deed in the present case had this burden of proof to sustain. The evidence which we have just summarized was insufficient to sustain the burden of proof that the law imposed upon her. We agree with the Chancellor that the decision, on the evidence as presented, must be for the appellees.
Appellant also, apparently for the first time on appeal, raises the point that her deed to defendants does not carry the $1.10 in federal revenue stamps required by the statute. ■ 26 U. S. Code, §§ 3480, 3482. She argues that the deed is therefore ineffectual. Assuming that the point was properly raised in the trial below, it nevertheless does not aid her. Referring to this statute, the United States Supreme Court has said: “As to the absence of revenue stamps . . . this neither invalidated the deeds nor made them inadmissible in evidence. The relevant provisions of that act, while otherwise following the language of earlier acts, do not contain the words of those acts which made such instrument invalid and inadmissible as evidence while not properly stamped. . . . Prom this and a comparison of the acts in other particulars it is apparent that Congress in the later act departed from its prior practice of making such instruments invalid or inadmissible as evidence while remaining unstamped and elected to rely upon other means of enforcing this stamp provision, such as the imposition of money penalties . . . ” Cole v. Ralph, 252 U. S. 286, 293, 40 S. Ct. 321, 60 L. Ed. 567.
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Tom Glaze, Justice.
This case is a second appeal. In a prior appeal, Hill Construction Co. v. Bragg, 291 Ark. 382, 725 S.W.2d 538 (1987), we found error in the failure to give certain jury instructions, and remanded this cause for a new trial. The earlier suit was brought by the appellant, Mel Bragg, an iron-worker, concerning injuries he sustained when a steel column fell on him during the construction of a building. That action was against the general contractor, Hill Construction Co., and the architect and engineers, Mayes, Sudderth & Etheredge, Inc. (Mayes), who prepared the plans for the building.
After the reversal of the first appeal, Lashlee Steel Company (Lashlee) was joined as a tortfeasor who allegedly bore some liability to Bragg for his injuries. During the course of the second trial, Bragg and Hill Construction Co. settled their differences, whereby Bragg received the sum of $145,000.00; Hill Construction Co. was dismissed from the suit. When the trial proceeded, Bragg and the remaining defendants, Mayes and Lashlee, all made references concerning the settlement terms reached between Bragg and Hill Construction Co., and although those remarks were made before the jury, no one interposed an objection. After the parties presented their evidence and rested, the trial court submitted the case to the jury on special interrogatories, and the jury returned its verdict in favor of Mayes and Lashlee. Accordingly, the trial court dismissed Bragg’s suit with prejudice, and Bragg brings this second appeal. We affirm.
Bragg’s argument for reversal involves the settlement between Bragg and Hill Construction Co. and the trial court’s allowing the amount of that settlement to be made a part of one of the interrogatories given the jury regarding the damages Bragg sought from Mayes and Lashlee. In this respect, the trial court read the following AMI 201 instruction with five interrogatories to the jury:
AMI 201
After I have completed my instructions to you on the law in this case, you will be given a number of written questions called interrogatories. These interrogatories present the issues of fact which you must decide. In order that you may be fully acquainted with the issues of fact which are now being submitted in this case for your determination, I will now read these interrogatories, some or all of which you may be called upon to answer. You should keep this in mind as I explain the law that applies to this case.
INTERROGATORY NO. 1: Do you find from a preponderance of the evidence that Mayes, Sudderth & Etheredge, Inc. was guilty of negligence which was a proximate cause of the occurrence?
Answer it “Yes” or “No.”
INTERROGATORY NO. 2: Do you find from a preponderance of the evidence that Lashlee Steel was guilty of negligence which was a proximate cause of the occurrence?
The answer will be “Yes” or “No.”
INTERROGATORY NO. 3: Do you find from a preponderance of the evidence that Mel Bragg was guilty of negligence which was a proximate cause of his damages?
Answer “Yes” or “No.”
INTERROGATORY NO. 4: If you have answered at least two of the foregoing interrogatories “yes,” then answer the following interrogatory.
Using 100% to represent the total responsibility for the occurrence of any injuries or damages resulting from it, apportion the responsibility between the parties whom you have found to be responsible.
Answer: Lashlee Steel, with a percentage, if any. Mayes, Sudderth & Etheredge, Inc., with a percentage, if any. And Mel Bragg with a percentage, if any.
INTERROGATORY NO. 5: State the amount of damages which you find from a preponderance of the evidence were sustained by Mel Bragg as a result of the accident, after first having deducted the $145,000 paid by Hill Construction Company.
Answer: $__
Bragg’s objection to the foregoing instruction and interrogatories went only to the form of Interrogatory No. 5. He argued that Interrogatory No. 5, as written, was a comment on the evidence, since it informed the jury to deduct the $145,000 paid Bragg by Hill Construction Co. from the amount of damages Bragg sustained as a result of the negligence of Mayes and Lashlee. Bragg further argued that the comment made in Interrogatory No. 5 tainted the other four interrogatories, because it permitted jurors to force the outcome by answering all of the interrogatories in a certain way since they knew what the outcome would be.
In keeping Bragg’s contention in perspective, we should point out, as does Mayes on appeal, that while AMI 201 and all the foregoing interrogatories were read to the jury, only Interrogatories No. 1 through 3 were actually submitted to the jury. Because the jury answered No. 1 and 2 in the negative, relieving Mayes and Lashlee from fault, it was then unnecessary that Interrogatory No. 5 be answered, so it was never submitted.
When considering the manner in which this case was tried and submitted to the jury, we have difficulty in accepting Bragg’s suggestion that he suffered any prejudicial error. The trial court clearly instructed the jurors that they may be called upon to answer some or all of the interrogatories read to them. They first considered those interrogatories concerning Mayes’s and Lashlee’s liability, and concluded neither was negligent. As a consequence, it was unnecessary for the jury to apportion the responsibility of Mayes and Lashlee, under Interrogatory No. 4, or to consider the issue of damages or the settlement language set out in Interrogatory No. 5, Cf. Arhart v. Micro Switch Mfg. Co., 798 F.2d 291 (8th Cir. 1986). As a result, those interrogatories were not submitted to the jury. Although Bragg argues the trial court’s reading of Interrogatory No. 5 tainted those interrogatories submitted to the jury, that argument rings hollow in view of how all parties presented their respective cases and arguments throughout the trial. As was found by the trial court, and conceded by the parties, counsel for Bragg and for Mayes or Lashlee made specific references to the $145,000 Hill Construction Co. settlement during voir dire and open and closing arguments. Obviously, if the submission of this case was in any way tainted by the fact Bragg received $145,000 from Hill Construction Co., that infection took place at the trial’s beginning, when each party’s strategy was to present the Bragg-Hill Construction Co. settlement as favoring his or its respective or opposing claims. The jury in this case was well aware of the facts stated in Interrogatory No. 5 long before that interrogatory was read to it. That being so, we fail to see how the language in Interrogatory No. 5 forced or led the jury to any particular answer. Even if the language in the interrogatory would have otherwise been error, that error was invited by Bragg. See Construction Advisors, Inc. v. Sherrill, 275 Ark. 183, 628 S.W.2d 309 (1982).
For the above reasons, we affirm.
Lashlee Steel became a defendant joint tortfeasor as a result of separate lawsuits against it by Bragg and Hill Construction Co. and those suits were consolidated with and made a part of the new trial which resulted from the earlier case this court reversed and remanded. | [
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Lyle Brown, Justice.
This is an appeal from a robbery conviction. Appellant advances five points for reversal. We find them to be without merit.
In January 1973, a neighborhood grocery in Pine Bluff was robbed by two men. City Officer Bobby Simmons happened to be patroling in the area at about the time of the robbery and heard a report of the incident over his radio. He spotted appellant and another man walking across the school grounds and radioed for help. Officer Keintz answered the call and when he arrived the two men were running across a field. Appellant and his companion were apprehended. A brown bag containing money was found along the trail used by the two men. Appellant gave the officers a fictitious name. The victim of the robbery shortly went to police headquarters and identified appellant as the man who held the gun on him. The argument of appellant that the evidence does not support the verdict has no validity.
Appellant says the court erred in denying his motion for a continuance. On the morning set for the trial appellant moved for a continuance to enable him to get another lawyer. He told the court that the two lawyers defending him and his codefendant were not familiar enough with the case and that “he just did not want them”. This was the first knowledge the court or appellant’s attorneys had that such a motion would be made. The attorneys conceded that they were ready to try the case. One of the attorneys complained that appellant had not paid his fee but the court advised that the fee would be paid by the county. In denying the motion for continuance the court said: “The jury is here, you have had ample time to notify the Court and if we were to permit a man to come into court every time his case is set for trial and discharge his attorneys we never would try anybody”. The court certainly did not abuse its discretion. Hill v. State, 250 Ark. 812, 467 S.W. 2d 179 (1971).
The court properly denied appellant’s motion for a mistrial on the grounds that he was wearing prison garb. The record shows that appellant was wearing bell-bottom white trousers, a gold shirt, a white and brown striped jacket, and house shoes. There was no evidence of any name or number on the apparel.' Nor do we find any merit in the allegation that appellant was brought handcuffed in full view of the jury. The record shows that appellant was handcuffed but the cuffs were taken off outside the doorway of the courtroom. In the first place, there is no showing that any prospective juror saw the appellant so shackled. Secondly, the officers had a right to take such precautions as would be reasonably necessary to prevent an escape. Rayburn v. State, 200 Ark. 914, 141 S.W. 2d 532 (1940). Appellant was brought to Pine Bluff from the penitentiary for trial; also, there was proof on behalf of the state that appellant was unusually belligerent.
In the course of examining Officer Worley, a witness for the State, the prosecutor asked Worley if he had questioned the defendant. Worley replied in the affirmative. At that point the court inquired if the prosecutor planned on introducing a statement, to which the prosecutor replied in the affirmative. The officer proceeded to say that appellant gave the name of Leroy Williams and that ap-’ pellant desired not to make any further statement. Appellant here contends that the prosecutor was erroneously indicating to the jury that he had a written statement, which in fact he did not have. The point is hardly in the category of being rational. The officer said appellant made the statement that his name was Leroy Williams; then, almost in the same breath, the, officer said appellant declined to make any further statement. Certainly the jury was not misled. When appellant took the stand he admitted to having given the. officer a fictitious1 name.
Affirmed. | [
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Holt, J.
Appellants, property owners within Highway 10 Water Pipe Line Improvement District No. 4, brought this suit to restrain further proceedings and for dissolution of the district.
Essential stipulated facts were: “The petitions asking the formation of Highway 10 Water Pipe Line Improvement District No. 4 were filed on October 21, 1946. and, in part, read as follows: ‘We respectfully petition the Pulaski County Court to lay off an improvement district pursuant to the provisions of Act 41 of 1941 enacted by the G-eneral Assembly of the State of Arkansas and approved February 13,1941, and all amendments thereto, for the purpose of constructing a water pipe line and connecting the same with the waterworks system supplying the City of Little Rock. ’
“An order creating the district was entered on October 25, 1946. Neither in the Petitions nor in the Order was there any reference to the length of the water pipe line to be constructed.
“On June 5, 1947, the Commissioners filed Plans of Improvement reciting that the district would construct or cause to be constructed a six-inch water pipe line along Highway 10 commencing at the east corner of Block B, Woodland Heights Addition to the City of Little Rock, being the end of the existing water main owned by Little Rock Municipal Water Works, and running westerly along Highway 10 to the northwest corner of the Joe 'T. Robinson School property. To the Plans of Improvement there was attached a plat indicating the starting point and the course of Highway 10 from such starting-point to the terminal point.
“The assessment of benefits as made by the Assessor of the district was filed in the office of the County Clerk on June 15, 1948. Notice was duly published, and on July 21, 1948, an order was entered confirming said assessment of benefits.
‘ ‘ On the 22nd day of September, 1948, an order was entered levying a tax in the sum of $207,650 against the lands in the district, being the amount of the principal of the bonds to be issued, the anticipated interest thereon, and 10 per cent- for unforeseen contingencies, but said order was subsequently set aside.
“On February 8, 1949, the Commissioners filed revised Plans of Improvement reciting that the water line would be extended along Highway 10 from the east corner of Block B, Woodland Heights Addition to the City of Little Bock, being the end of the existing water main owned by Little Bock Municipal Water Works, and running thence westerly along Highway 10 to the southwest corner of the SE % of SW% of SW^ of NE%> section 15, township 2 north, range 14 west. A plat was attached indicating the starting point and the course of the highway from such starting point to the terminal point.
“On the same day the Commissioners filed a petition reciting that they had revised the Plans of Improvement shortening the length of the water pipe line to be laid, and that this would diminish or remove benefits to the lands within the district which are west of the new terminal point. They prayed that they be permitted to withdraw the assessment of benefits theretofore filed and to substitute a revised assessment of benefits.
“On the same day an order was entered reading as follows: ‘ On this day is presented to the court the petition of the commissioners of Highway 10 Water Pipe Line Improvement District No. 4 asking that they be authorized to withdraw the assessment of benefits heretofore filed.
“ ‘The Court being well and sufficiently advised doth find that the Plans of Improvement have been revised and that it would be proper for the commissioners to withdraw the original assessment of benefits and make, another assessment of benefits based upon the plans as revised.
“ ‘ THEBEFOBE, it is ordered and adjudged that said commissioners be, and they are hereby, permitted to withdraw the book containing the assessments heretofore approved by order of this court and file hereifl a. book containing the revised assessments,’
“On «March 15, 1949, the Assessor of the District filed the revised assessment of benefits based upon the Revised Plans of Improvement. Notice of the filing of such revised assessment was duly published, and on April 22,1949, an order was entered confirming’ the same.
“Notice of the revision in the Plans of Improvement was duly published by the Commissioners in July of 1949.
“On December 3, 1949, an order was entered levying a tax in the amount of $178,360 being the amount of the principal of the bonds issued, the anticipated interest thereon, and 10 per cent for unforeseen contingencies. It provides that the tax shall be paid in annual installments, the installments for the years 1950 and 1951 to be 4 per cent, and commencing* in 1952 each annual installment to 6 per cent of the assessed benefits.
“The parties, in offering testimony, are not to be restricted by anything contained in this Stipulation, as it is executed merely for the purpose of dispensing with admitted facts and with the introduction of original papers on file in the office of the Clerk of the Pulaski County Court.
“The lands described in the Petition signed by property owners and in the Order of October 25,1946, creating the District, comprise land on either side of Highway 10 approximately a quarter of a mile back on either side of the highway from the present terminus of the existing water line running westward about six miles to the Joe T. Robinson School. Of these lands described in said Petition and Order and appearing on the original assessment roll, lands of Roy Sturgis in area 223.10 acres were assessed with benefits and under the revised plans and substituted assessment roll, lands of Roy Sturgis in area only 32.2 acres were assessed. The effect of the changed plans is to eliminate the Roy Sturgis lands stopping the proposed pipe line about % of a mile east of the Joe T. Robinson School and eliminating about 1/6 of the length of the pipe as originally proposed. The defendants take the position that the lands of the Joe T. Robinson School were never legally assessable with benefits.
“With the exception of Dr. Glenn H. Johnson, all parties whose names appear on a certain Petition circulated recently among landowners in opposition to the District are represented, by the Plaintiffs in this action and are parties to the class action.
“Although a contract was prior to the institution of this snit entered into between the District and W. R. Stephens Company for the sale of $92,000 worth of bonds at 4% with conversion privileges, said bonds have not been delivered and the District has not let a contract for the construction of the improvement or delivered any money to the Little Rock Municipal Water Works for the laying of the pipe.”
The trial court found “that the orginization of the defendant district was legal and valid in all respects; that the Commissioners had a right to make a change in the Plans of Improvement; that the assessment of benefits was confirmed and is now incontestable,” and entered a decree accordingly.
For reversal, appellants earnestly contend that the change of plans and specifications, eliminating approximately one mile of the area on the west end of the District (amounting to about 1/6 of the District which included the Joe T. Robinson School) in the construction of the District, amounted to such a material change and alteration from the original plans and character of the District as would void all orders of the County Court made subsequent to October 25, 1946.
We have concluded that appellants’ contention must be sustained.
As above indicated, the procedure followed here in the formation of the District was under Act 41 of the Acts of 1941, (now §§ 20-701 — 20-729, Ark. Stats. 1947).
It is undisputed that no bonds have been executed, issued or delivered, that no work has been done and that under the changed plans approximately one mile of the west end of the District, including the school, was eliminated.
In sustaining appellants’ contention, we must necessarily, and do hold, that the failure to take the water line to the school constituted a material change of plans and specifications in the District and that § 20-723, Ark. Stats. (1947), which allowed the change, does not allow a material change to be made.
Section 20-723 is § 23 of the “Suburban Improvement District Law” and provides: “The commissioners may at any time alter the plans and specifications. The changed plans, with the accompanying specifications, etc.”
Unless the words “changed plans” have a limited meaning by judicial construction, then they would mean any change, either material or immaterial. A study, however, of our previous decisions convinces us that these words “changed plans,” as well as the purpose and intent of <§ 23 above, permit only immaterial changes and does not permit of material changes.
The Alexander Road Law is Act 338 of 1915 and § 16 of Act 338 gave to the Commissioners of the District the power to make changes. The procedure for such changes is (1) a report to the County Court, showing the change; (2) published notice by the County Court for two weekly insertions; (3) order of the County Court making the change; and (4) appeal by any dissatisfied land owner to the Circuit Court within ten days from the County Court, order. Section 16, together with § 14 of the Alexander Law, provided that if there be no appeal from the County Court, then the judgment of the County Court making the change becomes conclusive on all property holders. The Alexander Law says “any alteration or change.” The Suburban Law says “the changed plans.” So it will be observed that § 23 of the Suburban Law is quite similar to § 16 of the Alexander Law.
We have several cases construing § 16 of the Alexander Law. In Rayder v. Warrick, 133 Ark. 491, 202 S. W. 831, we considered the “change” section of the Alexander Law and said: “We think § 16 intended to give the Commissioners the power to alter the plans and to change Ihe route iu order to better carry out tbe improvement as originally contemplated, but it does not authorize them to change the plan of the improvement to a wholly different one or construct it over a wholly different route.”
Then in Hout v. Harvey, 135 Ark. 102, 204 S. W. 600, we further considered § 16 of the Alexander Law and held that it allowed only minor changes.
Then came Pritchett v. Road Improvement District, 142 Ark. 509, 219 S. W. 21, which was also a case under the Alexander Law. There, the Commissioners changed the road by moving one mile of it a quarter of a mile away from the previous course. The right to make the change was challenged. This Court said: ‘ ‘ This necessarily constituted the adoption of a different route and not merely a slight change . . .” And we also held that the alteration of the plan was void. In the course of the opinion, this Court reviewed the earlier cases on § 16 of the Alexander Law and summarized: . . changes with respect to the character of the improvement and the route of the road must be confined to such changes as are consistent with the original plans and not changes to a different route . . .” (Headnote 3).
We may therefore summarize these cases involving § 16 of the Alexander Law by saying that the changes allowed are minor, or immaterial changes; and that major, or material changes, are not allowed under § 16 of the Alexander Law. These holdings were all before the adoption of the 1941 Act here involved, so that the words “changed plans” and the permission for change of plans had a definite meaning by judicial construction when the Suburban Law was adopted; and we therefore conclude that the “change” section in the Suburban Act necessarily is limited to immaterial changes, and that material changes are not allowed by § 23 of the Suburban Law.
In Phillips v. Tyronza and St. Francis Road Improvement District, 145 Ark. 487, 224 S. W. 981, the Parkin Road Improvement District was organized under a special act (Act 181 of 1920). The “change” section of that Act is § 26 and appears to have been patterned after the “change” section of the Alexander Law and of § 23 of the Suburban Law here under consideration. Under said § 26, the Commissioners of the Parkin Road Improvement District entirely eliminated one of the lateral roads and dissatisfied property holders brought suit in equity to enjoin the issuance of bonds. This Court held that the elimination of the lateral was a material change and rendered the assessments void. In that case, as in the case at bar, it was urged that the remedy of a dissatisfied land owner was by appeal, as provided in the “change” section of that Act, and not by an independent suit in equity, as' was there undertaken but we denied this contention, saying: “It is contended by the road commissioners that the present suit was not commenced within the time allowed by the statute, and for that reason should be dismissed. In making this contention they rely upon the provision of the statute limiting the time of landowners in making objections to the assessment of benefits on their lands. The present suit, however, was not instituted for that purpose. It goes to the integrity of the district and attacks its validity. Hence it does not come within the provision of the statute limiting the time for reviewing assessments of benefits. Mo. Pac. Rd. Co. v. Conway Co. Bridge Dist., 134 Ark. 292, and Mo. Pac. Rd. Co. v. Conway County Bridge Dist., 142 Ark. 1, 218 S. W. 189.”
So in the case at bar, when we hold, as we have, that the change attempted was a material change, then it necessarily follows that such change does not come within the.purview of § 23 of the Suburban Law, and that the present suit in equity goes to the integrity of the orders making the changes in the district.
Reaching this conclusion, it necessarily follows that the decree of the Chancery Court must be and is reversed.
George Rose Smith and DuNaway, JJ., not participating. | [
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Smith, J.
Appellant, Primos Anthony, who was the plaintiff below, alleged and offered testimony to the following effect: In September, 1904, he contracted to purchase from Garibaldi lots 11 and 12, in block 8, of Hanger’s Addition to the city of Little Bock, for the sum of $850. On February 23, 1905, Garibaldi conveyed these and other lots to appellee, W. J. Pennington, the deed reciting that the sale and conveyance of the two lots above described were subject to the contract between Garibaldi and plaintiff. Upon executing this deed, Garibaldi indorsed all the purchase money notes which Anthony had given him and delivered them to appellee Pennington, after which Anthony made payment of these purchase money notes to Pennington. Anthony has paid to Pennington all the purchase money, and much more. Wherefore he prayed an accounting, and that he have judgment for the excess paid, and that all title of Pennington be divested out of him and vested in Anthony, and that Anthony’s title be quieted and confirmed.
The contract between Anthony and Garibaldi was admitted, as was also Pennington’s purchase of the lots from Garibaldi subject to this contract, but Pennington alleged and offered testimony to the effect that Anthony was unable to complete his payments and conveyed to Pennington his interest in the lots in a deed dated February 12, 1907, and that later a written contract was entered into between them whereby Pennington agreed to convey lot 11 to Anthony for the consideration of $960, and Pennington alleged that this payment had never been completed.
It appears from this brief statement of the case that the issues involved are questions "of fact, and the testimony is both voluminous and conflicting. We will not recite this testimony,-which has been carefully considered, and will only announce our conclusions concerning it.
Anthony testified that he paid forty-eight notes each for $20, but he produced only eleven of them. The others, he said, were paid by deposits in the bank, the name of which he could not remember, to Pennington’s credit, but there was no proof of these payments except Anthony’s •own testimony. Anthony further testified that he made many payments extending up to 1919' which aggregated $2,424, and that in addition he had made payments in cotton and labor amounting to $931. Anthony kept no book of accounts.
On the other hand, Pennington testified that he assisted Anthony in his attempt to purchase the lots, and, after obtaining the deed from Garibaldi, he continued to indulge Anthony until the latter concluded that he could not complete his payments, whereupon Anthony and his wife, on February 12, 1907, executed to Pennington a quitclaim deed for both lots. A house was built on lot 11, which Anthony occupied for some years as a tenant, paying rent, and on February 1,1914, Pennington contracted to convey to Anthony lot 11 for a consideration of $960. Anthony denied the execution of either the deed or the contract to convey and claims his title under his original contract with Garibaldi.
The testimony of Anthony in regard to his payments proves too much, for, according to his testimony, he paid three times the purchase price of the lots before demanding his deed.
We think the testimony on behalf of Pennington is much more consistent. According to this testimony, Pennington furnished Anthony as a share cropper making a cotton crop for a number of years, and many of the payments which Anthony claims should be credited on the lots were credited, by consent, to the farming account, and a balance on that account of $9.64 remains due and unpaid, and a balance of $328.34 remains unpaid on the purchase money due on lot 11.
The deed from Anthony and his wife to Pennington was signed by them by mark, and opposite their names was written: “Witness to Marks: T. W. Wilson. Mary Anthony.” Wilson was the notary public who took the acknowledgments and had died before the depositions were taken in this case. Mary Anthony, the other attesting witness, was the daughter of the grantor, and she testified that she had not witnessed the signature of either her father or mother, and they both denied that they had 'signed or acknowledged the deed. The deed had been duly recorded, and a certified copy of it, as recorded, was offered in evidence. Pennington testified that he was present when Anthony and his wife signed and acknowledged the deed.
The law of this feature of the case was recently considered in Miles v. Jerry, 158 Ark. 314, 250 S. W. 34, where it was held that, when a grantor makes an acknowledgment before an officer authorized to take .acknowledgments, the recitals of the officer’s certificate, regular on its face, are, in the absence of fraud or duress, conclusive of the facts therein recited. But, although the officer may have certified that the grantors appeared and acknowledged the instrument, they may show that they did not in fact appear and acknowledge, but this burden rests upon the grantors who question the certificate of acknowledgment, and may be discharged by a preponderance of the evidence. Clifford v. Federal Bank & Trust Co., 179 Ark. 948, 19 S. W. (2d) 1026.
We are of the opinion that Anthony has not discharged this burden, and the conduct of the parties subsequent to the date of this deed confirms us in that view.
We are also of the opinion that the contract herein-above referred to dated February 1, 1914, for the reconveyance of lot 11 to Anthony was, in fact, executed by him as well as by Pennington. It is insisted that this contract was without consideration, for the reason that Anthony had already bought and paid for this lot, but we do not concur in that view, nor did the chancellor. It was shown by .Pennington’s books of account that Anthony was indebted to Pennington in the sum of about $500 at the time of the execution of this contract, and that Pennington had spent a considerable sum of money building the house on lot 11 in which Anthony then lived and on which he had been paying rent at the rate of $1.50 per week. Upon the execution of this contract to convey, it was agreed that the money which had been paid as rent should be treated and credited as payment of interest on the purchase money.
Much of Pennington’s case was made by the testimony of his wife, and objection was made to the introdue tion of this testimony because she was the wife of the defendant, Pennington. It. appears, however, that Mrs. Pennington was acting as the agent of her husband in all the matters about which she testified. She kept her husband’s books, and had kept the account with Anthony, and the 'chancellor appears to have accepted her testimony as a substantially correct statement of the account. According to this account, Anthony owed a balance of purchase money, exclusive of interest, of $328.34, and the chancellor found the balance to be $288.40.
Numerous cases declare the law to be that, where either spouse acts as agent for the other, testimony by the one acting as agent relative to matters within the scope of the agency is competent. Franks v. Rogers, 156 Ark. 120, 245 S. W. 311 ; Stephenson v. Lewis, 152 Ark. 361, 238 S. W. 61.
The chancellor found that Anthony owed a balance of $288.40 on his contract to purchase lot 11, with interest from February 1, 1919, when the last payment was made. Pennington’s title to lot 12 was quieted. A lien was declared on lot 11 in Pennington’s favor for the balance due on that lot, and time was given for its discharge, Anthony’s title to that lot being declared and quieted if the payments were made. We are unable to say that this finding is contrary to the preponderance of the evidence, and it is therefore affirmed.
Mehaeey, J., not participating. | [
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McHaney, J.
Appellees sued appellant in three separate actions for damages resulting from a crossing accident in the city of Russellville—the Browns for personal injuries, and the Buerkle Buick Company, for destruction of its Buick two-door sedan. The cases were consolidated for trial hy consent which resulted in verdicts and judgments for appellees as follows: For Buerkle Buick Company, $487.50; for George J. Brown, the driver of the car, $G75; and for Jim or J. G. Brown, $100.
1. The first assignment of error is that the court erred in giving instruction No. 3 on the measure of damages for the injury to the automobile of the Buerkle Buick Company, as follows: “Gentlemen of the jury, you are instructed that in arriving at the amount due the plaintiff Buerkle Buick Company that you will take into consideration the cost of the car to the plaintiff and the amount that the car is reasonably worth to the plaintiff, and you may find for him in any sum you find the car to be worth, not exceeding the amount sued for.”1 It is said this instruction is too indefinite and uncertain to furnish a correct guide to the jury as to the measure of damages to the automobile, and the case of K. C. S. Ry. Co. v. Biggs, 181 Ark. 818, 28 S. W. (2d) 68, is cited to sustain the contention. In that case the automobile was not destroyed, but damaged, and the trial court instructed the jury to “fix the amount of her recovery at whatever sum you find from the testimony will fairly and reasonably compensate her for damages to her automobile, if any.” This court held in that case that the proper measure of damages was the difference between the market value immediately before the injury and im mediately afterwards. Here, however, the car was destroyed. It had no' value 'after the injury except a nominal value for salvage. Buerlde had, the afternoon of its destruction that night, just acquired the car at a cost of $487.50 and testified that it was worth in excess of that sum. We are of the opinion, therefore, that the court did not err in giving the above instruction.
2. It is next urged that the court erred in part in giving instruction No. 1 on its own motion. This is a long instruction covering the three causes of action in respect to the comparative negligence statute. It correctly told the jury that if the driver of the car was guilty of contributory negligence, then Buerlde Buiek Company could not recover anything for damages to its car. It then incorrectly told the jury if both the railroad company and the Browns were negligent, “then if the negligence of these two plaintiffs exceeded the negligence of the railroad company, then you would reduce the amount of your verdict, if you were to find they were entitled to recover, reduce it in proportion to the negligence of the -plaintiffs as shown by the testimony in comparison with, the negligence of the railroad company.” Of course that is not a correct statement of the law and refutes itself. But the court, in the same instruction, correctly stated the law with reference to Jim Brown as follows: “;So that, if you find him negligent on that act, why you would compare his negligence with that of the railroad company, if you found it negligent. If his negligence was equal to the railroad company or exceeded it, find a verdict against him. If it was of less degree, find a verdict for him and reduce the amount of his recovery in proportion to the negligence of the railroad company and his negligence as compared.” Again, immediately following the above quotation the court said: ‘ ‘ The same rule applies to George Brown. If you were to find the railroad company negligent, then find George negligent, you would apply the same rule.”
This instruction was based on § 8575, C. & M. Digest, commonly referred to as the comparative negligence . statute. It has been many times held by this court under this statute that contributory negligence is not a bar to an action against a railroad company, for a personal injury caused by the running of trains, unless the degree of the plaintiff’s negligence, is equal to or exceeds the negligence of the persons operating the trains. Davis v. Scott, 151 Ark. 34, 235 S. W. 407 ; St. L. S. F. Ry. Co. v. Kirkpatrick, 155 Ark. 632, 245 S. W. 35 ; Powell v. J. L. C. & E. Ry. Co., 166 Ark. 252, 266 S. W. 78 ; St. L. S. F. Ry. Co. v. Horn, 168 Ark. 191, 269 S. W. 576. No specific objection was made to the erroneous part of the above instruction, and, since the court finally correctly declared the law as applicable to all parties, we do not think the jury could have been misled. If the court’s attention had been called to the conflict in the instruction, it would no doubt have corrected it. Moreover, no prejudice resulted therefrom, in view of the verdict in Buerkle’s favor. The jury necessarily found that the Browns were not guilty of contributory negligence, else they could not have found a verdict for Buerkle, for the court specifically instructed that the contributory negligence of the driver would bar a recovery for damage to the car.
3. It is finally argued that the verdict is contrary to the evidence, that there is no substantial evidence to support it. We cannot agree. The evidence was in dispute. The testimony for appellees was sufficient to take the case to the jury, and we can see no useful purpose in reviewing it, as it would unduly extend this opinion. ' Suffice it to say the evidence was sufficient to support a verdict for either party.
Affirmed. | [
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Hart, C. J.,
Rafter stating the facts). The circuit court was right to refuse to award the writ of mandamus. The record shows that the contract made by appellant with the school district was not executed in the manner prescribed by law. The adoption of the prescribed mode of contract under the statute is a jurisdictional prerequisite to the power to contract at all. The reason is that the authority is conferred by statute, and the directions of the statute must be substantially followed. It is the policy of the law that a contract shall not be executed until there is an opportunity for all the directors to present their views to each other. In the case at bar, only two of the directors signed the contract, and it was not made either at a regular or call meeting of the board. The want of authority in the directors cannot be supplied by any attempted ratification on the part of the director who did not sign the contract. Indeed, in the present case, the director who did not sign the contract only states that he had no objection to it. It does not appear that he knew whether the contract was or was not for the interest of the district. Arkansas National Bank v. School District No. 99, 152 Ark. 507, 238 S. W. 630 ; and Hatfield v. School District No. 58, 178 Ark. 260, 10 S. W. (2d) 374.
If the contract was illegal or of no effect because not signed in the manner prescribed by law, it necessarily follows that the writ of mandamus could not be had to compel the execution of such a contract. Mandamus only lies to compel a person to do that which it is his duty to do without it and cannot be used to compel the performance of that which is not lawful. Hill v. American Book Co., 171 Ark. 427, 285 S. W. 20 ; School District No. 3 v. Bodenhamer, 43 Ark. 140 ; and Huie v. Barkman, 179 Ark. 772, 18 S. W. (2d) 334. Hence the court did not err in refusing’ to grant the writ of mandamus.
It is next insisted that the court erred in awarding judgment against appellant for the $100 paid him for services rendered before the Legislature in opposing a bill which affected the school district. The circuit court based the right to the district to recover $100 paid under that contract in reliance upon the principles of law decided in Buchanan v. Farmer, 122 Ark. 562, 184 S. W. 33 ; and Miller County Highway & Bridge Dist. v. Cook, 134 Ark. 328, 204 S. W. 420.
We do not think the principles of law decided in those cases control here. They were cases where the contract contemplated personal solicitation and similar means between the attorney and the individual members of the Legislature. Such contracts were properly held to be void as against public policy. Here, according to the undisputed evidence, appellant was employed simply to make an argument before a committee of the Legislature to enable it to more intelligently act upon a bill affecting the interests of the school district. He did not contract to use his personal influence with members of the Legislature to induce them to vote against the bill, and no such effort was practiced by him. The judicial condemnation of so-called lobbying contracts are not applicable to contracts looking to the preparation of facts and arguments before either the administrative or legislative departments of the government. The differences between such contracts is clearly pointed out in State of Washington v. Okanogan County, 153 Wash. 399, 280 Pac. 31, 67 A. L. R. 688.
The same line of demarcation has been recognized by this court. Gould v. Sanford, 155 Ark. 304, 244 S. W. 433 ; and Martin v. Street Improvement District, 178 Ark. 588, 11 S. W. (2d) 469.
We next come to the question of the recovery of the $50 paid to appellant under the contract involved in that part of the case in which application is made for a writ of mandamus. The record shows that, in carrying out the contract, a warrant for $50 was issued to appellant, and by him presented to the county treasurer of Saline County, who paid it. This constituted an execution of the contract that far, and it is now too late for the district to recover the money. The contract was for a purpose which was valid and would have been binding on the district if it had been executed in the mode prescribed by law. The district having issued the warrant which was paid by the county treasurer, it is now estopped from recovering this amount from appellant. The contract having been executed to this extent and the money having been paid to appellant, we are of the opinion that no recovery can be had and that the principles of law above announced applying to the unexecuted part of the contract should not apply.
Therefore the judgment of the circuit court refusing the application of appellant for a writ of mandamus will be affirmed, and the judgment against him for $150 on the cross-complaint in favor of the district will be reversed and the cause of action in that behalf, dismissed. It is so ordered. | [
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Kirby, J.,
(after stating the facts). Appellant insists that the court erred in refusing to give its peremptory instruction directing a verdict in its favor and the contention must be sustained.
The rule has often been stated that this court will not interfere with a verdict supported by any substantial evidence, and that in arriving at that conclusion the strongest probative force will be given to the testimony and the reasonable inferences deducible therefrom favoring the party for whom the verdict is rendered. If the facts are such that men of reasonable intelligence may honestly draw therefrom different conclusions on the question in dispute, then the issues are properly sub mitted to the jury for determination, and in such cases the court should not substitute its judgment for that of the jury. Harris v. Bush, 129 Ark. 369, 196 S. W. 471 ; Guardian Life Ins. Co. v. Dixon, 152 Ark. 597, 240 S. W. 25 ; Grand Lodge A. O. U. W. v. Banister, 80 Ark. 190, 96 S. W. 742 ; Mutual Life Ins. Co. of N. Y. v. Raymond, 176 Ark. 883, 4 S. W. (2d) 536.
.An eminent annotator in discussing the right of an insurer to a directed verdict upon the issue of suicide makes the following statement of the law relative to the rule governing trial courts in suits upon insurance policies when the defense of suicide is relied upon, to-wit:
‘ ‘ Althoug'h in all jurisdictions the courts apparently recognize the existence of a strong presumption against suicide, the presumption is rebuttable, and it is held that an insurer setting up suicide of the insured as a defense to a recovery on a policy may be entitled to a directed •verdict in its favor on the issue o!f suicide, if the evidence produced is so clear and conclusive as to overcome the presumption and leave no reasonable basis for a jury to arrive at any other, conclusion than that of suicide. Under such conditions the issue of fact is no longer one for the jury to speculate on and should be decided by the court by means of a peremptory instruction to render a verdict for the insurer. '
"So where all the evidence produced on the trial overcomes the presumption, convincingly indicates suicide, and is inconsistent with accident or murder, the insurer is entitled to a directed verdict on the defense of suicide.” 37 A. L. E. 171.
This rule appears to have been adopted and followed by the majority of courts, both State and Federal, and our own court has announced the rule and its adherence thereto in Industrial Mutual Indemnity Co. v. Watt, 95 Ark. 456, 130 S. W. 532, and in Mott v. Sovereign Camp, 155 Ark. 259, 244 S. W. 733.
The insured either killed himself purposely or by accident, or was killed by some one else. The undisputed testimony shows he was continually worried and har assed about existing conditions in Ms office, that he was depressed at all times, not to say gloomy, that he was listless and indifferent about the conduct oif his office, knew that he was short in his accounts, was unable to make settlement with the State for the revenues collected, and that his shortage would be immediately discovered. Upon returning from the last visit to his fiance at Shreveport, he wrote the letters expressing a fixed determination to kill himself, saying that he was then looking into the face of death, which he regarded as most horrible, expressed the belief that he would be forgiven for Mlling himself, and wrote resignedly as though his determination was fixed and irrevocable. The undisputed testimony shows that he was in possession of the pistol, which had belonged to his former wife, with which he was killed, and still clutched it in his right hand when his body was. discovered after he had been shot therewith. It was impossible for him to have ¡killed himself accidentally, the second shot fired, the fatal one, occurring about five minutes after the firing of the first, the bullet from which did not penetrate the skull. Evidently the shots were fired after he had lain down on the bed with the pistol pressed against his forehead. The physicians stated that he would not have been able to get into the bed and assume the position hé was found lying in had he been standing up during the firing of either of the shots. One of them stated that the first shot mig'ht not have rendered him unconscious, and, although the others testified that it would, they said it would only have been temporarily so. There was time enough between the firing of the shots for him to have recovered from the shock of the first sufficiently to press the pistol against his head and fire the second shot in accordance with his fixed determination to kill himself. There was no evidence whatever of the presence in the room of any one else when the shots were fired or indicating that they might have been fired by some one else on the outside of the building. There was no evidence whatever indicating the presence of any one in the vicinity who would have attempted to kill the insured, and it is unbelievable, in view of human experience, that one who sought to murder the insured would fire the first shot into his head and wait five minutes before firing the last. Although the testimony showed that the sheriff had been active in enforcing the prohibition law and had received one threatening letter from a particular township in his county if he should come down there for that purpose, there was no particular threat shown to have been made by any one who desired his death or might have attempted to kill him.
It is true this woman, who received the letters, written the last night oif his life, expressing his undying affection for her and a fixed determination to kill himself, did not testify, but the proof was conclusive that the insured wrote the letters, and they were of no less probative value, having been shown to have been written by him, than if this woman “he loved,” who delivered them to the insurance company, had appeared personally in court and testified to the circumstances under which she received them.
The physical facts, as already said, are not consistent with the theory of an accidental ldlling which could be conceived of and cannot be reconciled with any manner of killing other than suicide. There is no suggestion in the record of any facts (from which a reasonable inference might be taken that the insured met his death at the hand of another through foul play. The presumption of accidental ldlling was overcome by the undisputed facts and circumstances, and the court should have directed a verdict for appellant in accordance with its request.
The .judgment is accordingly reversed for failure to do so, and judgment will be rendered here for the $1,000, one-tenth of the face oif the policy, in accordance with the terms thereof and the admission of appellant’s liability therefor. It is so ordered.
Humphreys, Mehaffy and Butler, JJ., dissent. | [
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Kirby, J.
Appellant insists for reversal that appellee at the time he was injured was assisting in maintaining the tracks of appellant, and ■ therefore engaged in interstate commerce, and that the law governing the liability of appellant for injuries to him was necessarily the Federal Employers’ Liability Act.
It is undisputed that appellee was a member of the tamping gang, his special duty being to keep in repair and operate the engines used for tamping the ties in the maintenance of the track and roadbed. The machine was not operating satisfactorily before the workmen quit for dinner and appellee went down for the purpose of repairing and adjusting it and was so engaged when struck by the train. He said he had already made the proper adjustments for the machine and was at the time cleaning it off with the compressed aid from the hose attached. This work was in the line of his duty and he was necessarily, under the circumstances of this case, engaged in interstate commerce, and the law governing' the liability of appellant to him for the injuries inflicted is the Federal Employers’ Liability Act. Pedersen v. Delaware, Lackawanna & Western R. R. Co., 229 U. S. 146, 33 S. Ct. 648 ; Seaboard Air Line Ry. v. Kenney, 240 U. S. 489, 36 S. Ct. 458.
Appellee was an experienced workman; he knew the location of the machine to be repaired relative to the track and the embankment or side of the cut, that trains were frequently passing over the track, and that the rules required him to rely upon his own watchfulness and keep out of the way, proceeded with his work of making the repairs, leaving the engine running and the air pump working- both making a great deal of noise, without looking toward the direction of the approaching train, according to his own statement, which he could have seen for almost a half mile, and stepped back on the track between his machine and the track where the passing train struck and injured him.
The testimony is in conflict as to whether the engineer and fireman on the approaching train were keeping a constant lookout as required by the statute and whether the signals were given notifying of the train’s approach before striking him. Since appellee was employed in interstate commerce at the time, the liability of appellant company for his injury is controlled by the Federal Em ployers ’ Liability Act, and the court erred in not so directing the jury in accordance with appellant’s requested instruction No. 2, and also in its instruction to the jury allowing the liability to be determined under the State Lookout Statute. C. & O. Ry. Co. v. Nixon, 271 U. S. 218, 46 S. Ct. 495.
According to the undisputed testimony, appellee’s own statement of the occurrence of the injury, he neglected to take proper care for his own safety and assumed the risk incident upon the performance of the work without relying upon his own watchfulness to keep in the clear as the rules of the company required, and they were entitled to expect of their employees.
For the errors designated, the judgment must be reversed, and the cause, appearing to have been fully developed, will be dismissed. It is so ordered. | [
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Robert H. Dudley, Justice.
Appellants were jointly tried and convicted of second degree murder. On appeal, they contend that the trial court improperly interfered with their voir dire examination. The appeal is without merit, and we affirm the judgments of conviction.
During voir dire appellants’ counsel began to recite the facts he thought would be proved during the trial. Perhaps before appellants’ counsel had finished his recitation of facts, and clearly before any of the jurors had a chance to respond, the deputy prosecutor asked if counsel could approach the bench and, out of the hearing of the jury, objected to the factual recitation. The trial court ruled by advising appellants’ counsel that at the time they were conducting voir dire examination, and not giving opening statements. Appellants’ counsel responded that, after stating the facts, he intended to ask the jurors if they would accept his theory of the case and accept his defense. The trial judge advised appellants’ attorney that he could not recite a set of facts and then seek to commit the prospective jurors to a decision in advance on those facts. Appellants’ counsel asked a number of questions without objection and then asked the trial court for a clarification of its earlier ruling. Out of the hearing of the jury, the trial court responded that counsel might ask “about specific subjects, about the prospective juror’s views on particular defenses, such as insanity defenses; however, you may not question them in regard to the facts expected to be proved at the trial and thus commit the jury to a decision in advance.”
Appellants contend the trial court’s ruling erroneously prevented them from inquiring into prospective jurors’ views regarding their theory of defense. The ruling of the trial court was eminently correct. The purposes of voir dire examination are to discover if there is any basis for challenges for cause and to gain knowledge for the intelligent exercise of peremptory challenges. A.R.Cr.P. Rule 32.2; Sanders v. State, 278 Ark. 420, 646 S.W.2d 14 (1983). Those purposes do not include an attempt to commit the jurors to a decision in advance. In Hobbs v. State, 277 Ark. 271, 275-76, 641 S.W.2d 9, 12 (1982), we wrote, “[Prospective jurors may not be questioned with respect to a hypothetical set of facts expected to be proved at trial and thus commit the jury to a decision in advance, but. . . they may be questioned . . . about their mental attitude toward certain types of evidence, such as circumstantial evidence.”
Affirmed. | [
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Darrell Hickman, Justice.
Everett Billings was injured when he fell from a ladder on a construction site. He was attempting to weld a joist which was being held in position by a crane. He sued the crane operator, Don Wages, and Jay Gipson, the owner of Gipson Crane Company, who are the appellees.
The jury, on a special verdict, found no negligence on the part of Billings or Wages. On appeal Billings makes two arguments, but they are meritless because of the jury’s finding. His first argument is that the Court erred in allowing evidence to be introduced that he drank on the job and had a habit of it. We need not reach the issue because the jury made a specific finding that Billings was not negligent, so the evidence was not prejudicial to his case.
In Ray v. Murphy, 284 Ark. 512, 683 S.W.2d 916 (1985), we found that even if an instruction is erroneously given, a jury verdict may render it harmless. In Ray the jury found the defendant not guilty of any negligence. We said:
The jury’s specific finding that Mrs. Murphy was not negligent conclusively exempts her from any possibility of liability to the plaintiff. If the trial court cannot rest its judgment upon such an explicit verdict, our procedure for instructing juries becomes futile.
See also Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983); Sanders v. Neuman Drilling Co., 273 Ark. 416, 619 S.W.2d 674 (1981); Bussell v. Missouri Pacific Railroad Co., 237 Ark. 812, 376 S.W.2d 545 (1964).
In this case the jury made specific findings that neither Billings nor the crane operator was negligent. So the evidence could not have prejudiced Billings, because the jury did not find him at fault to any degree.
The second question is did the trial judge err in instructing the jury on the borrowed servant doctrine. Since the jury found no negligence on the part of the crane operator, this issue is also meritless.
Affirmed. | [
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