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Smith, J.
The prosecuting attorney of the judicial circuit in which the city of Little Bock is situated, together with the members of the grievance committee of the Little Bock Bar Association, filed charges in the circuit court against Laurence O. Maloney for his disbarment as an attorney-at-law, pursuant to the provisions oí §§ 610-626, O. & M: Digest.
Three separate charges were presented, and the respondent was found guilty upon each of them by nine of the jurors who tried the case, and the separate verdicts returned upon each of these charges were signed by the nine jurors. Upon the verdicts thus returned the circuit court pronounced a judgment permanently disbarring the respondent, and this appeal has been prosecuted to review that judgment.
Testimony tending to sustain the charges preferred was to the following effect: Mrs. A. C. Harding had some money which she had put at interest, and in doing so had been assisted by one Douglass, whose full name does not appear to have been stated. It became necessary for Mrs. Harding to employ an attorney to collect these loans, and she employed respondent for that purpose. The testimony clearly shows that the relation of client and attorney was established, and respondent admits that Mrs. Harding paid him a fee of $100 in making these collections, and for other services subsequently rendered she paid him a fee of $15.
This business was transacted with such satisfaction to the client that the attorney appears to have completely gained her confidence. Respondent represented to Mrs. Harding that he had occasional applications for loans, which he could make for her account, and that he could and would guarantee that the loans would be safe and be properly secured, and we think the jury was warranted in finding that in the first two transactions thereafter had between these parties Mrs. Harding was warranted in assuming that respondent was acting as her attorney.
The first of these transactions was as follows: Maloney represented that he had a friend named Wilson, who wanted to borrow $500 on the security of a diamond ring worth $1,200, and Mrs. Harding made the loan on the recommendation of Maloney, who represented that he had taken a proper note. Mrs. Harding gave Maloney a check for the $500, payable to Wilson’s order, which, after being apparently indorsed by Wilson and by Maloney also, was cashed. The ring was retained by Maloney, for the reason that Mrs. Harding had no secure place to keep it.
The second transaction was of a similar nature, and involved an ostensible loan of $250 to a man named Barks- dale upon another diamond ring, which Maloney also kept in his possession.
The testimony amply supports the finding that these transactions were fictitious, and were mere subterfuges by means of which Maloney obtained the use of Mrs. Harding’s money for his own purposes, although he did have two diamond rings which he exhibited to her as the security for the loans which he represented that he had made.
It is difficult to disassociate these transactions from the existing relation of attorney and client, and the jury did not do so. There was nothing in either of these transactions to indicate that Mrs. Harding did not regard Maloney as her agent and attorney to negotiate these loans and to see that they were properly secured. Maloney was not in'the br okerage business, and, while he does not appear to have made any separate charges for his services in these transactions, they appear to be an incident to the relation of attorney and client existing between the parties, and were induced by the confidence which that relation had inspired. Mrs. Harding trusted Maloney to see that proper notes were taken, as she supposed, and to keep the rings which g'ave the notes their value.
The relation of attorney and client is not limited to trial of cases or to work connected with the courts. Many duties are entrusted to attorneys which might be performed by a layman, the lawyer being chosen, not because litigation is contemplated, but because the proper discharge of the duty requires some knowledge of the law, which leads the client to assume that the lawyer could more safely transact the business. "We think the transaction about the rings were of that character, although no specific fee was paid or charged for that service, because the transactions grew out,of and were related to the existing relation of attorney and client. They were related-to the business for the transaction of which Mrs." Harding had employed and paid Maloney, that of lending money.
After procuring these fictitious loans to himself, Maloney made application for a direct loan to himself of $800, and the third charge was based upon this transaction, the history of which is stated in the opinion of this court in the case of Maloney v. Harding, 181 Ark. 1075, 29 S. W. (2d) 290.
To secure this $800 loan Maloney gave a mortgage on the south half of a quarter section of land which he owned. After giving this mortgage Maloney retained it in his possession for a short time, when he gave it to Mrs. Harding', and she, after keeping it in her possession for some time, returned it to Maloney, but she had in her possession at all times the note for the $800 which the mortgage secured. It would be difficult to find a case of more simple faith or more trusting confidence, and it is not to be doubted that this faith and confidence arose out of the relation of attorney and client, which had never been terminated.
Maloney reported to Mrs. Harding that certain interest had been paid on the loans secured by the rings, but he later reported that default had been made in this respect. He also made default in the payment of the loan secured by the mortgage and of the interest thereon. Mrs. Harding saw Maloney frequently about these payments, and finally became importunate, and it is certain that he was not candid with her about these transactions. It finally became necessary for her to incur the expense of •employing an attorney to make the collection in each of these three cases, and this attorney frequently called upon Maloney demanding payment, and the same lack of candor on Maloney’s part continued, although he finally admitted to the second attorney that he had not, in fact, made the loans to Wilson and Barksdale, but at the trial from which this appeal comes he denied having made that admission.
It appears from the opinion in the case of Maloney v. Harding, supra, Maloney sold the entire quarter section of the land upon the south half of which he had given the mortgage to Mrs. Harding, and as her mortgage had not been placed of record, Maloney’s purchaser took the title to the entire tract free of the mortgage lien. In that case we reversed the judgment imposing the statutory penalty under §■§ 2453-2455, O. & M. Digest, for the reason that it had not been shown that the effect of the sale of the land by Maloney was to denude him of all bis property, not leaving enough to pay his creditors.
It was shown that, immediately upon the remand of that cause, Maloney paid Mrs. Harding the amount there adjudged to be due, and it was also shown that Maloney paid Mrs. Harding the amount of the loans made on the two rings, with interest thereon, but these payments were not completed until after the disbarment proceeding had been instituted.
It is very earnestly insisted that, as this showing was made and was admitted to be true, Mrs. Harding has not been damaged, and that as she has received her money it is now immaterial that she may have been deceived in regard to the loans on the rings. But the transactions cannot thus be rendered innocuous. Mrs. Harding was deceived in the first instance, and was later delayed and annoyed, and has incurred the expense of employing another attorney and of having a lawsuit.
At respondent’s request the court gave an instruction numbered 11, which reads as follows: “You are instructed that to constitute an improper retention of a client’s money sufficient to warrant disbarment, some element of fraud or dishonesty must appear'from the evidence. In other words, mere nonpayment of money by an attorney is insufficient as a ground for disbarment, in the absence of fraud or dishonesty in the retention of money.”
It thus appears that, before finding respondent guilty upon any of the charges, the jury was required to find that “some element of fraud or dishonesty must appear from the evidence,” and without further review of the testimony, we announce our conclusion that the testimony Avas sufficient for this purpose.
It is objected that other instructions permitted the jury to make this finding upon a mere preponderance of the evidence, whereas the finding should have been permitted only upon evidence that was clear and satisfying, such as would be required in a criminal case.
We said, hoAvever, in the case of Wernimont v. State, 101 Ark. 210, 142 S. W. 194, Ann. Cas. 1913D, 1156, that “Proceedings for the suspension or disbarment of attorneys for professional misconduct are not criminal, but civil in their nature. They are not instituted or intended for the purpose of punishment. Their object is to preserve the purity of the court's and the proper and honest administration of the law. Attorneys are officers of the court, made so by its order when they are admitted to practice therein. The purpose of the proceedings for suspension and disbarment is to protect the court and the public from attorneys who, disregarding their oath of office, pervert and abuse those privileges which they have obtained by the high office they have secured from the court. The right to practice law is not an absolute right, but a privilege only. It is but a license which the court grants by its judgment of admission to the bar, and which the same court may revoke whenever misconduct renders the attorney holding such license unfit to be entrusted with the powers and duties of his office. The revocation of such license is therefore only a civil proceeding, governed by the rules applicable to all civil actions.”
As we have announced the rule to be followed in this State in proceedings of this character, no occasion arises to consider the rules prevailing in other jurisdictions. Having held that this is a civil proceeding, it is governed by the rules applicable in such cases, and it has been held error to require that the material allegations in cases of that character be established by anything more than a preponderance of the evidence. Hays v. Williams, 115 Ark. 406, 171 S. W. 882 ; Bocquin v. Theurer, 133 Ark. 448, 202 S. W. 845 ; Sealy Mattress Co. v. Southern Cotton Oil Co., 167 Ark. 405, 268 S. W. 611 ; Whaley v. Nivin, 175 Ark. 839, 1 S. W. (2d) 3.
It is finally insisted that the judgment of the court permanently disbarring respondent is unnecessarily severe ; that the court was not required to make this order, and that the ends of justice would have been subserved by suspending respondent for some fixed period of time only. The case of State v. Huddleston, 173 Ark. 686, 293 S. W. 353, is cited to support this contention. There the attorney was disbarred for the period of one year only, and we affirmed that judgment. The appeal in that case was prosecuted by the local bar association, which had instituted the proceeding, for the purpose of making the disbarment order permanent. We there said, however, that the statute under which both that proceeding and this was conducted requires the trial court, in all cases of conviction, to pronounce judgment of removal or suspension according to the facts found, and vested the trial court with discretion either to remove or suspend according to the facts found, and that “Where the trial court is vested with judicial discretion, it has always been the rule of this court not to reverse the trial court in the exercise of such discretion, unless, in the judgment of this court, under the facts presented, the trial court in its ruling has abused its discretion.”
Under the facts in this case we are unable to say that there has been an abuse of discretion, and the judgment of the court below must therefore be affirmed, and it is so ordered.
Haet, C. J., Kirby and Meiiaffy, JJ., dissent.
P'er ¡Curiam
on rehearing. In the early case of Beene v. State, 22 Ark. 149, the court quoted with approval the language of Chief Justice Marshall in Ex parte Burr, 9 Wheat. 530, as follows: “On one hand, the profession of an attorney is of great importance to an individual, and the prosperity of his whole life may depend on its exercise. The right to exercise it ought not to be lightly or capriciously taken from him. On the other, it is extremely desirable that the respectability of the bar should be maintained, and that its harmony with the bench should be preserved. For these objects, some controlling power, some discretion, ought to reside in the court. This discretion ought to be exercised with great moderation and judgment; but it must be exercised; and no other tribunal can decide, in a case of removal from the bar, with the same means of information as the pourt itself. If there be a revising tribunal, which possesses controlling authority, that tribunal will always feel the delicacy of interposing its authority, and would do so only in a plain case. ’ ’
This rule has been followed and applied according to the' varying facts of each particular case since that time. Wernimont v. State, 101 Ark. 210, 142 S. W. 194, Ann. Cas. 1913D, 1156 ; Nichols v. Little, 112 Ark. 213, 165 S. W. 301 ; Craig v. Sims, 160 Ark. 269, 255 S. W. 1 ; State v. Huddleston, 173 Ark. 686, 293 S. W. 353 ; McGehee v. State, post p. 603 ; and the original opinion in this case.
After mature deliberation, with the full sense of our responsibility and delicacy in reviewing the action df the lower court, the majority is of the opinion that the judgment of disbarment should be set aside and that the protection of the public, the ends of justice, and the atonement of appellant for the offense committed will be attained by his suspension from the practice of the law for a period of one year from the date of disbarment in the court below. The grounds of disbarment relate to the professional conduct of appellant. It was not shown that he was guilty of unprofessional conduct of a continuing character. He was only found guilty by the jury of a single offense. His past conduct at the bar had been of an exemplary character, in so far as the record discloses. The office of an attorney is his property; it is the capital from which his income is derived. Disbarment is the severest penalty known, to the law; and, when all the circumstances are considered together, we believe that the harshest penalty of the law should not he pronounced against the appellant, and that his suspension from the practice for one year will enable him to regain his former character as a lawyer and warrant him in returning to the practice again. It is so ordered.
SmiHee and Humphreys, JJ., dissent. | [
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Garleton Harris, Chief Justice.
Bobby Lowery instituted suit in the Jackson County Circuit Court, alleging personal injuries by reason of a car - bus collision which occurred on September 8, 1971. Appellees, West Memphis Transportation Company and Henry Robertson, filed a general denial on November 26, 1971, and on January 18, 1972, appellees filed a motion asking that the complaint be dismissed because of a lack of verification and alleging improper venue on the basis of the contention that Lowery was not a resident of Jackson County, Arkansas, but rather a resident of Florida; that the commencement of the action in such county constituted a fraud upon the court. Appellant responded, denying the allegations and asserting that the deposition of Lowery reflected that he was a resident of Jackson County on the day of the accident, and that the venue was proper. It was, further asserted that any defect in venue had been waived by the filing of an answer and the taking of the discovery deposition of Lowery by the attorney for the appellees. In this pleading, Lowery also offered to make the verification “pursuant to an order of this court.” On February 7, 1972, the court entered its order denying the motion to dismiss, but not ordering verification of the complaint. On September 25, 1972, a pre-trial conference was held at which time the court propounded the question, “Are there any jurisdictional questions?” Counsel for appellant replied in the negative, stating, “The pleadings are settled and the issues joined.” No response to this question was made by counsel for appellees and subsequently during the conference, both sides asked for a continuance. On November 21, 1972, at another pretrial conference, appellee, West Memphis Transportation Company, moved to dismiss its complaint against two third parties who had been brought into the case as third party defendants in April, 1972, and also moved to amend its previously filed answer so as to reflect appellees’ admission of liability for appellant’s damages resulting from the collision of September 8, 1971. The court granted both motions and the answer stood amended.
On February 15, 1975, the case was called for trial. Before proceeding into the courtroom, a motion in limine, made by appellant, was heard, and after discussion by the attorneys on each side, the motion was granted in part. Thereafter, a jury was selected and after being admonished, a ten minute recess was given to the jury and the court and parties returned to chambers where appellees moved the court, under the provisions of Ark. Stat. Ann. § 27-1109 (Repl. 1962) (no verification) to dismiss the complaint. Appellant again offered to verify, but after hearing argument of counsel, the court granted the motion, dismissed the complaint without prejudice, and dismissed the jury. From the order so entered, appellant brings this appeal. While four points are asserted for reversal, all are closely related, and will be discussed together in this opinion.
Ark. Stat. Ann. § 27-1105 (Repl. 1962) provides that “Every pleading must be subscribed by the party or his attorney, and the complaint, answer and reply must each be verified by the affidavit of the party to the effect that he believes the statements thereof to be true; ***.” Section 27-1109 provides that where complaints are filed without verification, as required by § 27-1105, the action shall not on that account be dismissed, if the verification “be made on or before the calling of the action for trial.”
Appellees assert that the question of verification is important because they contend that appellant is not a resident of this state, thus having no right to institute suit in Jackson County, and that his failure to swear to the allegations in the complaint, is accordingly most pertinent to that contention. We do not consider that argument appealing, since Lowery’s discovery deposition was taken by counsel for appellees on January 4, 1972, at which time counsel thoroughly questioned Lowery on various matters relating to residence, including where he was registered to vote at the last election, where he paid personal taxes, where various items of property are assessed, with whom he lived in Arkansas and Florida, and many other related matters. At the very outset of the deposition, the record recites that Lowery was “first duly sworn to tell the truth, the whole truth and nothing but the truth ***." Accordingly, if false statements were willfully made, and such statements established, this would tend to show fraud upon the court as much, or even more, than the allegations in the complaint, and if Lowery were mistaken as to what constituted residence under the statute, he still would not be guilty of deliberate falsification.
The verification certainly is not absolutely essential to the validity of the complaint, i.e., it does not deprive the court of jurisdiction, nor, under our prior interpretations of the statute, does the failure to verify require dismissal of the action. In Pinkert v. Reagan, 219 Ark. 822, 244 S.W. 2d 961, we pointed out that the purpose of the statute in requiring verification is to prevent a judgment from being taken on an unverified pleading alone, without any evidence being introduced. See, also Parker v. Nixon, 184 Ark. 1085, 44 S.W. 2d 1088. The case of Andrews v. Lauener, 229 Ark. 894, 318 S.W. 2d 805, involved the failure to verify an answer. (While the present action involves a complaint, the principle is the same for § 27-1105 requires verification for the complaint, answer, and reply.) We said:
"The appellants first argue that the court erred in refusing to strike the appellees’ answer. On December 11, 1957, appellant B. B. Andrews verified the appellánts’ complaint and on the next day the appellants filed a motion to strike the appellees’ answer because it was not verified. This motion was not presented to the court until the appellants had completed their proof and the appellees had moved for dismissal on February 4, 1958. At that time the court permitted appellee W. E. Lauener to verify the answer in open court. We find no error in this procedure.
“In construing Ark. Stats. 1947, Sec. 27-1105, pertaining to the verification of pleadings, we said in Bank of Dover v. Jones, 192 Ark. 740, 95 S.W. 2d 92, that the court did not abuse its discretion in permitting the defendant to verify her answer when it became apparent that the plaintiff sought to take advantage of her failure to do so.”
In M. W. Elkins & Co. v. Ashley, 195 Ark. 313, 112 S.W. 2d 627, appellant moved to dismiss the complaint because of the failure to verify, but we held the contention to be without merit, stating:
“Appellant’s motion to dismiss for failure to verify was not filed until January 18, 1937. The depositions of Ross Mathis and W. P. Dawson, to be read in evidence on behalf of appellees, were filed September 14, 1936. The depositen of M. W. Elkins, a witness for appellant, was taken on notice dated March 24, 1936, and was filed January 11, 1937. All of the testimony on each side had been taken and the depositions filed before appellant’s motion was made. If an oral motion were made prior to the time proof was taken, it is not shown by the bill of exceptions, and cannot be considered. It follows that, even if appellant’s contention as to the effect of § 1437 [identical with § 27-1105] could be maintained, the irregularity was waived by the proceedings taken.”
In the instant litigation, the discovery deposition of Bobby Lowery had been taken and filed, and interrogatories to appellant had been propounded, answered, and filed. The record reflects a notice to take depositions on December 1, 1972 of two other persons, but it is not clear whether these were actually taken. Of course, under the order entered by the court, all time spent in preparation of the case by the attorneys and the parties, as well as the time of the witnesses, has been for naught; likewise, the time spent by the court in holding pretrial conferences has been fruitless.
Appellees argue that the statute permitted appellant to verify his complaint at any time before the “calling of the action for trial”, and that accordingly, the court actually could not dismiss the complaint earlier. We are not impressed by this argument. When the first motion to dismiss was filed, the court certainly could have entered an order requiring the complaint to be verified before the case was called for trial; in fact, appellant offered to do so if the court so ordered. The record does not reflect why the court denied appellees’ motion at that time, but between that date, and the date of the dismissal (over a year), two pre-trial conferences had been held. At the first of these conferences, in reply to a question by the court, counsel for appellant replied that the pleadings were settled and the issues joined, and no disagreement with this statement was expressed by counsel for appellees. At the second pre-trial conference, appel-lees amended their answer to reflect an admission of liability for appellant’s damages. In other words, only the question of the extent and amount of appellant’s damages was to be heard. The resolving óf preliminary motions and the determination of issues are among the primary purposes of pre-trial conferences. Certainly, a view by appellant that verification was no longer an issue would be understandable. Though perhaps not intentional, it would somewhat appear that appellant was entrapped, since a second motion to dismiss was'not made until after the jury was selected; even then, appellant offered to verify.
Whether it be on the basis of a waiver of the verification by appellees, or inappropriate action by the trial court, we think, under the circumstances herein set out, that the court- erred in granting the motion, and that Lowery is entitled to reinstatement of his complaint.
Reversed.
Fogleman, J. not participating.
Appellant also argues that under Ark. Stat. Ann. § 27-1111 (Repl. 1962), no verification of the complaint was required. That section reads as follows:
“Verification by affidavit mentioned in the last section (§ 27-1105) shall not be required to the answer of a guardian (or committee) defending for an infant, or person of unsound mind, or imprisoned; nor in any case where the admission of the truth of the allegations of the complaint or answer might subject the party to a criminal or penal prosecution; nor to pleadings affecting injuries to person [our emphasis] or character; nor to complaints in actions founded on a note, bond, bill of exchange, mortgage or other written obligation of the defendant; nor to defense founded on the written obligation, release or written obligation of the plaintiff, unless the writing on which the action or defense is founded is lost, mutilated or destroyed.’’
We do not pass upon this argument since it does not appear that it was presented to the trial court, and we have stated that we do not consider points not first presented below. White Company v. Bragg, 168 Ark. 670, 273 S.W. 7 (1925). | [
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Smith, J.
This appeal is from a judgment sentencing appellant to a term of twenty-one years in the penitentiary for murder in the second degree, committed by killing Maurice Osborne.
It was the theory of the State that appellant had conspired with Osborne’s wife to commit the homicide, and the revolting details of the crime are set out in the opinion of this court affirming the judgment of conviction against Mrs. Osborne, the wife of the deceased, for her participation in the crime. Osborne v. State, 181 Ark. 661, 27 S. W. (2d) 783.
Among other errors assigned for the reversal of the judgment is that the testimony is not sufficient to support the verdict. This assignment of error would be fully answered if the testimony in the former case'were set out, all of which was offered at the trial from which this appeal comes. There is, in addition to that testimony, the admission of appellant upon his own trial that he shot and killed Osborne, although he claimed that the killing was done in self-defense, a theory which the jury did not believe. There was also the additional testimony of Mrs. Osborne to the effect that appellant had previously stated that he intended to kill Osborne, and that he would do so “to get shed of him.”
No brief has been filed on behalf of appellant, but we have considered all of the errors assigned in the motion for a. new trial, none of which appears to be of sufficient importance to require extended discussion.
One of these errors is that it was error to offer in evidence the gun with which appellant admitted he had shot Osborne, for the reason that its condition was not the same as it was when found. This was a proper and a very damaging bit of evidence, as it tended to rebut the theory of self-defense. It furnished an explanation of the cut found in the back of deceased’s head, the inference being fair and reasonable that, after shooting de ceased unce in the face and twice in the back, the gun had then been used as a club, and that it was wielded with such force for that purpose as to break the grin, it being found near the body. The witness who identified the gun detailed the only difference between the then condition of the gun and its condition at the time it was found, this being that some of the wooden pieces which were hanging on to the stock had fallen off. It is competent always to, offer in evidence the instrument used in causing death, where it is clearly identified, as was done here. •
Objection was made to the testimony of Mrs. Osborne to the effect that appellant had said the night before the killing, that he intended to kill deceased. When this objection is stated, it is answered, as its admissibility is obvious.
It is assigned as error that the court refused to permit W. B. Minard to state whether appellant’s reputation for being truthful was good or bad. The witness had testified that appellant’s reputation for being peaceful and law-abiding was good. But appellant had not then testified as a witness, and no attempt had been made to impeach his reputation or veracity. However, it appears that the court, after so ruling’, offered to permit the introduction of testimony on the question of appellant’s veracity.
Peter Fowler testified on behalf of appellant that appellant was a fine shot with a gun, the purpose of the testimony being, no doubt, to show that, had appellant desired to' kill Osborne, three shots would not have been required for that purpose. Upon the cross-examination of the witness he was asked: ‘ ‘ You don’t know what kind of shot J. P. (appellant) would make leveling down a man and the man coming in home with J. P. trying to kill him, do you?” to which question the witness answered: “No, sir.” We see no error in this question, as its effect was to inquire whether one’s markmanship might be affected by the character of his target and re lated to an opinion which the witness had expressed in response to a question propounded to him by appellant’s counsel. It was invited error, if error at all, but we think there could have been no prejudice, especially when the witness gave a negative answer to the question.
Appellant admitted the identity of the'gun, and that he had thrown it down on the floor after shooting Osborne, but he stated: “I don’t know how hard I threw it down.” He was then asked: “Did you throw it down on the floor hard enough to break it?” when the judge remarked, “He said he didn’t know how hard he threw it,” but when the question was repeated the court permitted appellant to answer it, after first excluding it, and he stated: “If it hits right it would break it. I judge it is according to the way it hit the floor. ’ ’
The only other assignment of error relates to the refusal of the court to require Mrs. Osborne to state why she and her husband went back to the toilet when he first entered the house. No attempt was made to explain the relevancy of this testimony, and we do not see how any prejudice could have resulted from its exclusion.
Upon a consideration of the whole case, we find no error in the record, and the judgment must be affirmed, and it is so ordered. | [
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Conley Byrd, Justice.
Late in the afternoon of the day before trial of this rear end automobile collision case appellants Elaine Warren, a minor, and William C. Warren amended their general denial answer to plead contributory negligence. Over objections of appellee Betty Hayes and notwithstanding a motion for a continuance, the case was tried to a jury resulting in a $1,000 personal injury verdict. The trial court granted appellee a new trial. We cannot say that the trial court abused its discretion under the circumstances.
Affirmed. | [
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Frank Holt, Justice.
The appellees purchased a portion of a ranch from the appellants. Subsequent to a delivery of the deed with a vendor’s lien, pursuant to a written contract, the appellees successfully sought reformation as to the recited acreage and purchase price. For reversal of that decree, appellants first contend the chancellor “erred in permitting Barnes [appellee] to reopen the question of acreage eleven months after the transaction was closed” because “(A) Time was expressly made the essence of the contract” and “(B) After February 15, 1971 the contract was an executed (fully performed) contract and was not subject to rescission either wholly or partially.”
The appellees purchased a portion of appellants’ ranch which was estimated to consist of 156 acres for the agreed purchase price of $70,000 with $30,000 down payment and the balance to be secured by a vendor’s lien payable in one year. By mutual agreement the formal description of the property was waived with the understanding that “accurate legal descriptions” were in the process of being determined, the abstract brought down to date and a survey made if necessary. “A rough copy of the plat of the land” being conveyed was made a part of the contract. Following the foregoing provisions is paragraph 2 of the contract which reads:
If it be ascertained that the acreage is in excess of one hundred fifty-six (156) acres, the Purchasers agree to increase the purchase price by Two Hundred Fifty Dollars ($250.00) per acre; and if it be ascertained that the acreage is less than one hundred fifty-six (156) acres, the Sellers agree to reduce the price by Two Hundred Fifty Dollars ($250.00) per acre.
Subsequent paragraphs related to oil, gas and mineral rights; the appellants’ right to continue in possession rent free until April 1, 1971; the proration of taxes; the parties’ respective obligations as to insurance coverage; and the appellants would furnish an abstract of title reflecting a merchantable title. Thereafter follows the concluding paragraph 8 which recites:
The Thirty Thousand Dollar ($50,000.00) down payment is also considered as a forfeiture in the event the Purchasers fail or refuse to go ahead and complete the transaction and it is specifically stipulated that time is of the essence and the entire transaction is to be closed by a Vendor’s Lien transaction within ten (10) days.
The contract was dated February 2, 1971. However, by mutual agreement the transaction was closed on February 15, 1971. In doing so, the parties relied upon appellants’ surveyor, a Mr. Wood, who a few days previously had ascertained that the lands being conveyed consisted of 158.35 acres. The appellees paid the appellants $587.50, which was computed at $250 for the 2.35 acres in excess of the estimated acreage. The appellees, after taking the agreed delayed possession of the property, employed a Mr. Weaver to survey the property. When time permitted him, Weaver made a survey which revealed there was actually a shortage in the conveyance of 8.61 acres.
Appellants strenuously contend that time was made the essence of the contract by express stipulation and therefore any action which either party desired to take with reference to a survey and consequent acreage determination must have been done by the closing date, or otherwise any party so failing would be forever foreclosed from so doing. In other words, appellants assert that paragraph 8, which contains the provision that time is of the essence, is controlling as to paragraph 2. We cannot agree. It is true that according to the cases cited by appellants time can be made the essence of a contract. However, generally this provision relates to a forfeiture of the purchase price. In the case at bar, we are of the definite view that the essence of time expressed in paragraph 8 relates to and is confined solely to the forfeiture of a very substantial down payment ($30,000) on the purchase price. Appellants recognize that “[T]he contract does not specifically say when the acreage excess or deficiency will be ascertained. . . ” However, appellants forcefully argue that from a construction of the entire contract the parties intended the ascertainment of the correct acreage was foreclosed upon delivery of the deed. If the parties actually desired that the correct acreage had to be ascertained before closing the transaction, then that limitation should have been so expressed in paragraph 2, which relates specifically to the right of adjustment as to acreage and price.
Although agreements respecting the sale of lands are deemed to be merged into a deed subsequently issued, this principle of law does not prevent reformation upon a showing of mutual mistake of fact, a misrepresentation or perpetration of a fraud. Otherwise there could never be a reformation. Reynolds v. Davis, 245 Ark. 255, 431 S.W. 2d 841 (1968), Duncan v. McAdams, 222 Ark. 143, 257 S.W. 2d 568 (1952), Stack v. Commercial Towel & Uniform Service, Inc., 120 Ind. App. 783 91 N.E. 2d 790 (1950). In the case at bar, the contract was subject to reformation (the pleadings were amended to confrom to the proof) based upon a showing of mutual mistake. Furthermore, the cause of action cannot be characterized as one for rescission as suggested by appellants.
In the sale of land by acreage where the quantity of acres is essential to the contract, we have recognized the purchaser is entitled to an adjustment of the acreage and a corresponding adjustment as to the purchase price. Glover v. Bullard, 170 Ark. 58, 278 S.W. 645 (1926). In the case at bar, the parties expressly agreed in paragraph 2 as to the estimated acreage and for a reduction or increase in the purchase price upon ascertainment of the correct acreage. As stated previously, we cannot agree that by paragraph 2 the parties restricted themselves to the agreed adjustment upon the closing of the transaction.
Appellants next contend the court erred in decreeing reformation of the deed to conform to the Weaver survey (appellees). The law is well settled that reformation of a written instrument is permitted in equity to show the true intent of the parties where there is a mutual mistake. Welch v. Welch, 132 Ark. 227, 200 S.W. 139 (1918). The parties seeking reformation, however, must present evidence that clearly and convincingly warrants a finding that a mutual mistake occurred. Glover v. Bullard, supra, Dent, Adm’r. v. Industrial Oil & Gas Co., 197 Ark. 95, 122 S.W. 2d 162 (1938). However, the proof need not be undisputed in order to achieve reformation. Galyen v. Gillenwater, 247 Ark. 701, 447 S.W. 2d 137 (1969).
In the case at bar, 158.35 acres were conveyed by the deed which was based upon the survey made by Wood, appellants' surveyor. After the conveyance, as previously indicated, the appellees’ surveyor, Weaver, ascertained from his survey that the deed conveyed a shortage of 8.61 acres and so testified. It appears that Wood and Weaver were each county surveyors. Wood, as a witness, did not have the advantage of his original map since he had lost it. However, following the initial hearing, Wood was permitted to testify again after resurveying the acreage. This time he testified that the acreage actually conveyed consisted of 161.65 acres of 3.30 acres in excess of his original survey. We have held many times that when the evidence is conflicting on factual issues the chancellor is in a better position to evaluate the evidence since he observes the witnesses, hears their testimony and we, on appeal, have only the printed word and exhibits before us. Brown v. LeTourneau College, 251 Ark. 851, 475 S.W. 2d 521 (1972). The provisions of the written contract specifically give the parties the right to ascertain the correct acreage. Therefore, when we consider the initial conflicting evidence (8.61 acres disparity) between the two su-veyors coupled with the admission by appellants’ own surveyor at a subsequent hearing that his first survey was inaccurate by 3.30 acres (increasing the disparity to 11.91 acres), we are unable to say that the finding of the chancellor, in reconciling the factual issue, failed to adhere to the standard of clear and convincing proof.
Appellants next contend that the court erred in denying interest on the $40,000 note from June 1, 1971, to March 8, 1972. This figure represents the balance of the purchase price which was secured by a vendor’s lien. Paragraph 1 of the contract provided that this balance would be paid “just as soon as they [appellees] dispose of their place in Houston, Texas, but not later than one year thereafter.” The promissory note, which was given at the time of the closing of the transaction, provided that the appellees [makers] agreed that whenever they disposed or sold “certain of their real property in Houston, Texas, before the due date” they would thereupon pay the balance and “at any rate not later than one year from the date of this note [February 15, 1971].” The note further provided that interest would be computed at the prevailing interest in the local area. Appellee Barnes testified “certain property in Houston” meant his home place. It is undisputed that his home had not been sold. Appellant Bicknell took the position that the sale by Barnes of his business on June 21, 1971, activated the interest on the note from that date. However, Bick-nell himself testified on direct examination that in their discussion of pre-payment on the note, Barnes stated “just as soon as I sell the property in Houston we will pay the note.” Bicknell acknowledged that only the house was mentioned as being on the market and Barnes expressed the belief he would sell it in the near future. On this subject Bicknell then testified “[W]ell, I’ll take a chance and gamble, then, that you do sell it right away and won’t have to ride a full year.” Bicknell further testified that Barnes told him he had a very profitable business which he could sell; however, Barnes expressed no desire to sell it. In view of this testimony, we certainly cannot say the chancellor’s finding on this factual issue is against the preponderance of the evidence. We have considered and find without merit any subsidiary arguments raised under this contention, as previously stated, with reference to the note and interest.
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J. Fred Jones, Justice.
This is an appeal by D. R. Hol-lingsworth and Rockwood Insurance Company, the employer and compensation insurance carrier respectively, frorr a circuit court judgment reversing the Arkansas Wo men’s Compensation Commission’s dismissal of claims filed by Jimmy Ray Evans and Mary Lee Evans against Hollingsworth. The appellants contend on this appeal that the decision of the Workmen’s Compensation Commission is supported by substantial evidence and the circuit court erred in reversing the Commission.
The facts appear as follows: Hollingsworth had a contract with the Georgia Pacific Corporation whereby Hollingsworth purchased pulpwood in Bradley County and shipped it to Georgia Pacific. When the contract was entered into, Hollingsworth was required to submit proof to Georgia Pacific that Hollingsworth had procured a policy of workmen’s compensation insurance. Before Georgia Pacific would pay Hollingsworth for the pulpwood he shipped, Hollingsworth was required to attach to each ‘bill of lading a statement that he had complied with state law pertaining to workmen’s compensation insurance coverage. Hollingsworth carried workmen’s compensation insurance under a policy issued by Rockwood Insurance Company and was charged a premium of 47 cents per cord of pulpwood he shipped to Georgia Pacific. Mr. Hollingsworth maintained a pulpwood yard in Warren, Arkansas, where pulpwood was delivered by truck and loaded onto railroad cars for shipment to Georgia Pacific.
Hollingsworth purchased pulpwood from various individuals including Jimmy Ray Evans. Mr. Evans owned a pulpwood truck and was engaged in the business of purchasing timber, cutting it into pulpwood and selling it to Mr. Hollingsworth. At Mr. Evans’ request, Hollings-worth withheld from the amount due Evans for pulpwood sold to Hollingsworth, the amounts Evans had agreed to pay the owner of the timber he purchased and Hollings-worth would pay that amount direct to the timber owner and the balance to Evans.
Mr. Evans had purchased some saw log tree tops on land owned by a Miss Hardy and on November 1, 1971, Evans and his wife were cutting the tree tops into pulpwood to be delivered to Hollingsworth when a bolt in their chainsaw broke. Mr. and Mrs. Evans started in their pickup truck to Warren to have the chain saw repaired when they were involved in a collision with another vehicle in route and both of them were injured. They filed a claim for workmen’s compensation benefits and following a hearing before a Referee, their claims were denied by the Referee and the Commission.
On appeal to the circuit court, the court found there was no substantial evidence to warrant the Commission in denying the claims. The court found that Hollingsworth was required by Georgia Pacific to provide workmen’s compensation insurance for the workers who produced the pulpwood Hollingsworth shipped to Georgia Pacific. The court further found that the claimants paid a consideration to Hollingsworth for each cord of wood claimants produced, or had a consideration withheld by Hollings-worth from each cord produced, and for these reasons the claimants were covered by the policy of insurance issued to Hollingsworth by the respondent, Rockwood Insurance Company. The court further found that the respondents were estopped to deny that claimants were covered by the policy because they had already paid similar claims. The court reversed the decision of the Commission and remanded the case with directions to award benefits to Mr. and Mrs. Evans. We must agree with the appellants that the decision of the Workmen’s Compensation Commission is supported by substantial evidence and the circuit court erred in reversing the Commission.
Mr. Evans testified that he had been cutting and hauling pulpwood to Hollingsworth for about four years with the exception of perhaps one week when he hauled his pulpwood to another buyer. He said that he was receiving $15 per cord for pine and $12 per cord for oak for the pulpwood delivered to Hollingsworth’s yard. He said he purchased his timber from various individuals and at the time of his and his wife’s injuries, he was hauling from downed tree top timber he had purchased from Miss Hardy. He said Miss Hardy’s woods foreman directed him to the tract from which he was to cut and that by mutual agreement, Mr. Hollingsworth paid directly to the Hardy interest the amount per cord he agreed to pay for the timber tops he was cutting, and that Hollingsworth paid the balance directly to him. He was asked and answered the following questions:
“Q. Was anything taken out of your wages or the money that you got for insurance?
A. I really don’t know how that insurance is set up.
Q. You don’t know how that is set up?
A. It is so much a cord. I don’t know whether that is held out of our check or just how that works. I really don’t know.”
Mr. Evans testified that he carried no insurance of his own and at one time, prior to his injury, he had a conversation with Hollingsworth concerning insurance. When asked about the conversation, he testified in part as follows:
“A. Well, it was brought up a time or two, but I never did question it. Donnie just said that we were covered out there in the woods if we got hurt or anything, that we had the insurance.
Q. When did Mr. Hollingsworth tell you that?
A. I don’t remember exactly. It’s been — well I believe that was before I even went to hauling to him. I’m not sure.”
Mr. Evans said Hollingsworth’s statement concerning insurance was made when he, Evans, was in partners with his uncle. He said he had a helper about that time who was injured and his claim was accepted by Hollingsworth’s compensation carrier. He said he is quite sure he was hauling for Hollingsworth at that time. He then said:
“I don’t remember the date. I do remember we was talking about that insurance. I remember this much about it, it was ever who we hauled the last wood to, if we had an accident before we got in with the next load, the one that we hauled the last load to, whether I hauled it to Martindale or down to Hermitage, their insurance was the one obligated to pay it. I do remember hearing — I do remember that about the insurance.”
Mr. Evans testified that he had no employees except himself and his wife when he was injured; that he owned his own equipment including his pulpwood truck, loader and saws; that he purchased his own timber and furnished his own fuel. He said that Hollingsworth did not direct any of his activities in connection with the pulpwood cutting and hauling except that he designated the length of pulpwood acceptable. He said that he carried on his operation without any interference or assistance from Hollingsworth and that he worked when he wanted to. On cross-examination he testified that cost of stumpage was forwarded directly to the owner of the stum-page and that he received the amount left over for the pulpwood he delivered to Hollingsworth.
“Q. So there was nothing withheld out of your check except the amount of the cost of the stumpage?
A. To the best of my knowing, that’s all.”
On redirect examination Mr. Evans testified that after he dissolved the partnership with his uncle, he continued to haul pulpwood to Hollingsworth, but that nothing else was ever said about insurance until after his accident and injury. He said that after the injuries he and his wife sustained, he asked Mr. Hollingsworth about insurance coverage.
. . [M]e and Donnie were just talking, and I asked him about did he think that I ought to be covered or was I covered, and he said, ‘Well, I can’t tell you that you are and I can’t tell you that you ain’t, but my opinion you should be covered. . . .”
Lawrence H. Derby, Jr., the insurance agent from whom Hollingsworth obtained the policy issued by Rock-wood, testified that he did not recall Rockwood paying a claim on a man named E. L. Davis. At this point the appellant’s attorney, after conferring with Hollingsworth, volunteered the information that there was a “medical only’’ claim filed for $4 or $5 which was paid. The insurance policy issued to Hollingsworth was a standard workmen’s compensation insurance policy agreeing “to pay, promptly when due, all compensation and other benefits required of the insured by the workmen’s compensation law.”
Mr. Hollingsworth testified that he had workmen’s compensation insurance coverage at the time Mr. and Mrs. Evans were injured, and that he was paying 47 cents per cord in premiums for the insurance and that the premium was paid on the basis of check stubs he received from Georgia Pacific for the pulpwood he shipped to them. He said he would take, or mail, his check stubs to his agent Derby, and that Derby would then mail back to him a premium statement based on the total number of cords of pulpwood he had shipped to Georgia Pacific during the month. He said he shipped all his pulpwood to Georgia Pacific and that his insurance premium would vary with the number of cords of pulpwood he shipped. He said when he purchased the insurance, agent Derby told him his subcontractors would be covered under the policy, but that he did not withhold anything for insurance premiums from the amounts due the haulers. He testified that he had no “direct” employees. He said that he had no employees from whom he was withholding Social Security or income tax, and that he turned in no quarterly reports pertaining to same.
Mr. Hollingsworth was not asked to explain his meaning of direct employees as distinguished from em ployees that were not direct. In attempting to explain the insurance coverage he purchased from Derby, he testified as follows:
“Mr. Derby and I talked about this when I began business. My father had this business prior to the time that I took it from him. At the time he was paying an extra ten cents a cord to cover a sub-contractor. At the time I took the policy, I had only sub-contractors and I felt like it would be only reasonable that I should pay only the ten cents a cord and not the basic policy fee. At that time we discussed it. It’s been many years ago and I could not say, word for word, what was said at that time. I don’t think Mr. Derby could. There was no written agreement but the only reason I had the policy was to protect me against liability and to protect my employees as such, as sub-contractors.”
Mr. Hollingsworth then testified that he entered into his contract with Georgia Pacific about 1968 and Georgia Pacific required him to furnish proof that he had workmen’s compensation insurance coverage. He said:
“I bought it because it was required by law and because I had to have protection for myself at the time I bought it. I was under the impression that my subcontractors were covered. That’s the best answer I can give you on it. ... ”
Mr. Hollingsworth said he had been selling wood to Georgia Pacific and buying it from people such as Mr. Evans and others similarily situated for approximately three years. He said he usually had between three and ten different haulers who delivered pulpwood to him on the same basis as Mr. Evans; that “they come and go.” He said the contract between him and Georgia Pacific was subject to cancellation at any time by either party notifying the other; that he was required to attach to the bill of lading on each car of pulpwood he shipped to Georgia Pacific a form saying he had complied with all laws and statutes of Arkansas, but that he was not required to present a receipt showing he had purchased workmen’s compensation insurance except the one time when he entered into the original contract with Georgia Pacific.
Ark. Stat. Ann. § 81-1306 (Repl. 1960) provides that when a subcontractor fails to secure compensation required by the Act, the prime contractor shall be liable for compensation of the employees of the subcontractor. Mr. Hollingsworth refers repeatedly to his obtaining insurance for the protection of his “subcontractors.” The prime contract is not in evidence and there is no evidence one way or the other relating to the duties of subcontractors as distinguished from haulers or producers such as Mr. Evans, from whom Mr. Hollingsworth purchased pulpwood. It is entirely possible that Mr. Hollingsworth considers the haulers, such as Mr. Evans, as “subcontractors.” He said, however, that when he took the business over from his father, that his father had one subcontractor. Mr. Hollingsworth did say he had no “direct employees” but he did not say who loads the pulpwood from his wood-yard to the railroa.d cars, and he did not say whether anyone else is involved in his operation except himself and the haulers from whom he purchases pulpwood delivered to his yard.
There is, of course, a considerable difference between a subcontractor and an independent contractor. In Black’s Law Dictionary, Rev. 4th Ed., a subcontractor is defined as:
“One who takes portion of a contract from principal contractor or another subcontractor. * * * One who has entered into a contract, express or implied, for the performance of an act with the person who has already contracted for its performance.”
In Gaydos v. Packanack Woods Dev. Co., 166 A. 2d 181, at page 184, the New Jersey Court defines a subcontractor in a workmen’s compensation case as follows:
“A subcontractor is one who enters into a contract with a person for the performance of work which such person has already contracted to perform. In other words, subcontracting is merely ‘farming out’ to others all or part of work contracted to be performed by the original contractor.”
. As already stated, the prime contract between Hollings-worth and Georgia Pacific is not before us so it is entirely possible that in addition to purchasing pulpwood from haulers or producers such as Mr. Evans, Hollingsworth did have subcontractors performing part or all of his contract with Georgia Pacific and these employees, as well as Georgia Pacific, would have been protected as a matter of law by Hollingsworth’s compensation coverage.
The employees of a subcontractor are covered by workmen’s compensation benefits under the prime contractor’s coverage in the event the subcontractor does not have separate coverage for his employees, but the employees of an independent contractor who is not a subcontractor are not covered as are the employees of a subcontractor under § 81-1306.. This statute does not provide coverage, as a matter of law, for the subcontractor himself but only applies to his employees. The record is not clear whether Mr. Hollingsworth himself was a subcontractor under Georgia Pacific or was simply an independent contractor who purchased and sold pulpwood to Georgia Pacific. It is apparent, however, from Mr. Hollingsworth’s testimony, he believed he was required to carry a workmen’s compensation policy by the laws of Arkansas, but there is no evidence in the record that he was so required.
The trial court apparently based its decision on such cases as Stillman v. Jim Walter Corp., 236 Ark. 808, 368 S.W. 2d 270, and Hale v. Mansfield Lbr. Co., 237 Ark. 854, 376 S.W. 2d 670. In the Stillman case the contract between the parties was in evidence in which Jim Walter was designated “contractor” and Roy Stillman was designated as “subcontractor.” The Jim Walter Corporation engaged Stillman to build houses for a specified consideration depending upon the type of house constructed. Stillman was to furnish only the labor. The contract in that case provided that the subcontractor was to furnish the contractor with a certificate of workmen’s compensa tion coverage on subcontractors and on employees of the subcontractor. In the absence of such certificate, all payments due the subcontractor were subject to a three per cent deduction and the contractor would furnish such workmen’s compensation coverage. Stillman was injured on the job and filed a claim for compensation benefits. The claim was defended on the ground that Stillman was an independent contractor and not an employee. In that case we pointed out that the Jim Walter Corporation had agreed, for a consideration of three per cent of the contract price payable to Stillman, to furnish workmen’s compensation coverage for Stillman as well as his employees. With Stillman’s consent the three per cent was deducted and the coverage furnished. In that case we held that regardless of whether Stillman was in fact, an independent contractor or employee, under the facts in that case, the Jim Walter Corporation was estopped to say that Stillman was not entitled to workmen’s comepnsation. The decision in that case turned on the written contract supported by valuable consideration. Such is not the fact supported by any substantial evidence in the case at bar.
In Hale v. Mansfield Lbr. Co., supra, Hale was to receive $7.50 per 1,000 board feet plus payment of the insurance premum for skidding logs out of the woods and loading them on trucks. Hale owned and used his own team in the operation and no other insurance premiums were involved except workmen’s compensation insurance premiums. The primary distinction in Hale and the case at bar, however, was that Mansfield Lumber Company was removing timber from government land under a contract with the government, and in that case we said:
“Even if it can be said that Hale was an independent contractor, he was an independent subcontractor, and Mansfield would be liable to his employees under the workmen’s compensation law.’’
Hale had no employees of his own and was simply one of the workmen getting out the timber in the performance of Mansfield’s contract with the government. Mansfield paid a premium for workmen’s compensation insurance in the amount of $11.36 on every $100 of remuneration paid to Hale and we held that it could be fairly inferred that the insurance was to cover Hale as well as the other workers. The insurance policy in that case specifically covered logging and that was what Hale was doing. Had Hale been the one who entered into a contract with the government for the purchase and removal of timber from government land, and if he in turn had cut the timber and sold the logs to the Mansfield Lumber Company, the Hale case would have been more in point with the case at bar and also in point with the cases of West v. Lake Lawrence Pulpwood Co., 233 Ark. 629, 346 S.W. 2d 460, and Pearson v. Lake Lawrence Pulpwood Co., 247 Ark. 776, 447 S.W. 2d 661.
The facts in West, supra, as set out on page 631 of the Arkansas Report are almost identical to the facts set out in the case at bar and in West this court on appeal, sustained the Commission in denying compensation. As pointed out in the dissenting opinion in West, both West and Lake Lawrence thought West was covered by Lake Lawrence’s workmen’s compensation policy and Lake Lawrence deducted a fixed sum per cord of wood cut for workmen’s compensation insurance. The dissenting members of the court in West would have applied the rule of estoppel but the majority of the court did not agree.
In the Pearson case, supra, the facts were very similar to those in the case at bar and we there held there was substantial evidence to support the Commission’s denial of compensation on the basis that the decedent was not an employee of the appellee pulpwood company. We wound up our decision in Pearson by quoting from Herman Wilson Lbr. Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487, as follows:
“ ‘* * * The question is not whether the testimony would have supported a finding contrary to the one made, but whether it supports the finding which was made.’ ”
We found in that case that there was substantial evidence to support the Commission.
We are in sympathy with Mr. Hollingsworth’s alleged statement to Evans that he thought Evans should be covered by Hollingsworth’s compensation insurance policy, but we are forced to the conclusion that he was not.
The judgment of the circuit court is reversed. | [
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Lyle Brown, Justice.
Appellant was convicted of possession of marijuana with intent to deliver and sentenced to ten years imprisonment. He asserts three points as reversible error: (1) that the search warrant and the fruits of the search should have been suppressed; (2) that the contraband was improperly identified and its integrity not maintained; and (3) that the State should not have been allowed to reopen its case after resting.
Point I. We think the search warrant met the test of probable cause as set out in Bailey v. State, 246 Ark. 362, 438 S.W. 2d 321 (1969). The affidavit for a search warrant was made by Sgt. Robert B. Jones of the Little Rock Police Department. He swore there were reasonable grounds to believe that marijuana was being possessed and offered for sale at 9211 Adkins Street, Apt. 7, Little Rock; that he received his information from a confidential informant whose statement was based on personal observation; that the informant was considered reliable; and that in the preceding three months the informer had given similar information on other suspects and his information formed the basis of felony charges being filed in such other cases. (The informer was Tom Johnston, a Little Rock city detective with five years experience.)
During the course of the trial it developed that at the precise tíme the informer called Sgt. Jones, the contraband was not actually inside Apartment 7; it was in the trunk of the informer’s car. The recited discrepancy forms the basis of appellant’s main attack on the invalidity of the search warrant. The testimony revealed that the informer, the appellant and others, drove by prearrangement to Apartment 7, and from that address it was understood the informer was to make a telephone call to his “money man”. (Actually, the call was going to be made to Sgt. Jones.) Officer Johnston, the informer, testified he parked his car so that he could observe it through the apartment window and the contraband was in fact within his sight at the time the call was made; and that immediately after completing the call the parties brought the marijuana inside the apartment. We think it was sufficient that the parties had agreed to bring the contraband into the apartment — it was at all times within the view of the informer, and that it was brought into the apartment within minutes after the call. Shortly after the informer’s call the police arrived at Apartment 7 and found the drugs as represented by . the informer.
Point II. Under this point appellant alleges that the contraband was: (a) improperly identified, (b) its integrity was not maintained, and (c) it was improperly displayed to and inspected by the jurors. Sgt. Jones testified he removed the original wrappers from the bricks and rewrapped the material in clear plastic bags and attached numbered tags. We think the fact that the officers found it necessary for identification purposes to transfer the material to clear plastic bags was not improper or prejudicial.
Appellant argues that the integrity of the material was not maintained in that the State chemist analyzed some bricks that did not have a tag on them. We per ceive no prejudice. The chemist received the 98 bricks confiscated. The trunk and the box in which the material was delivered were appropriately tagged. In addition, all the bricks examined, except one, had individual tags. When Officer Royster delivered the material the chemist placed it in a vault. The chemist, along with two officers, brought the material to court.
The entire collection of material was brought into the courtroom prior to the trial and appellant’s counsel noted that prospective jurors had viewed the material and that one or more jurors picked up some of the bricks. Appellant classes the procedure as prejudicial error. We do not agree. What the jurors saw and inspected was all introduced by the State. Appellant's counsel appeared to agree that his objection was probably rendered moot when the total contraband was introduced. We agree.
Point III. Appellant contends the court abused its discretion in permitting the State to reopen the case after the State had rested. We find no such error. In the first place, the court stated that the case was being reopened to permit additional testimony only with regard to appellant’s co-defendants. Secondly, we are cited to no testimony whatsoever that was given to further implicate the appellant.
Affirmed.
Harris, C.J., not participating. | [
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Tom Glaze, Justice.
The appellee, an attorney appointed to represent an indigent charged with murder, petitioned the trial court for $18,020.00 in attorney’s fees and $435.00 in costs. No response or objection to the appellee’s petition was filed or made. The trial court subsequently entered an order granting attorney’s fees in the amount of $12,900.00 and $435.00 in expenses for a total award of $13,350.00. In its order the trial court specifically recognized our holding in Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991), wherein we declared the statutory fee “caps” contained in Ark. Code Ann. § 16-92-108 (1987) were unconstitutional; we further stated that, under the circumstances in that case, court-appointed attorneys are entitled to “just compensation” to reasonably compensate them for services rendered. In awarding appellee his fees and expenses, the trial court made no mention in its order as to who was to pay such award. Nor is there anything in the record showing any attempt by appellee to collect the fees and expenses awarded him.
Although appellant made no objection below to the award obtained by appellee, appellant for the first on appeal argues the trial court erred in interpreting § 16-92-108 as imposing liability on the county for the payment of attorney’s fees. He also argues the trial court misapplied our holding in the Arnold case to the facts here because the appellee here volunteered his services prior to the decision in Arnold.
Appellant acknowledges the well-settled rule that issues not raised in the trial court will not be considered for the first time on appeal. Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d371 (1992). However, appellant cites Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), wherein this court listed the four rare exceptions when it will review a case on appeal in the absence of an appropriate objection in the trial court. He suggests the court should add another exception where the court would review any issue which could be characterized as a “difficult and novel question” even though that question was not argued at trial. Of course, appellant further opines the issues raised in this appeal come within the “difficult and novel question” category and should be reviewed. We must reject appellant’s argument largely because such a proposed exception offers little or no definition. What might be considered a difficult or novel question is often in the eyes of the beholder and to adopt such a vague and undefined exception would arguably be adopting a version of the federal court’s “plain error” rule which this court has steadfastly refused to do.
For the above reasons, we affirm.
Holt, C.J. and Brown, J., concur. | [
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Robert L. Brown, Justice.
This case concerns a grant of summary judgment to appellee Twin City Bank on various counterclaims asserted by the appellants, Forrest City Machine Works, Inc. and Mallard Farms Holding Co., Inc., and David A. Hodges. The appellants urge that the chancellor erred in his decision. They further invite this court to review the record, as abstracted, to see if facts were established to overcome summary judgment. The background of the case is complex and involves multiple issues, shifting parties, and interplay between federal and state court decisions. We conclude that the chancellor correctly awarded summary judgment, and we affirm his order.
The essential facts are these. Appellee Twin City Bank agreed to make a working capital loan to the appellant Forrest City Machine Works, Inc. on March 30, 1983. The loan was secured by farm land and guaranteed by appellants, Mallard Farms Holding Company and David A. Hodges, and by the United States Department of Commerce. On August 13, 1990, following default, the Bank foreclosed on the note and mortgage. In a counterclaim, the appellants alleged three causes of action: malicious prosecution, abuse of process, and tort of outrage. The tort counterclaims had their foundation in allegations that the Bank knew that the foreclosure suit was groundless because of litigation and a settlement between the parties in bankruptcy court in 1986.
In 1990, the Bank sued appellee Department of Commerce in the name of then-Secretary Robert A. Mosbacher, in federal district court on its guarantee of the Forrest City Machine Works loan. The Commerce Department brought the appellants into the suit on a third-party complaint as the primary obligors on the loan. In December 1990, the Commerce Department was substituted as party plaintiff for the Bank in the federal litigation as part of a settlement between the Department and the Bank.
On February 4, 1991, Special Chancellor John W. Martin denied the appellants’ motion for summary judgment relating to the Bank’s foreclosure suit. That motion had been predicated on res judicata due to the prior litigation in bankruptcy court.
On May 30, 1991, the federal district court entered a directed verdict at trial in favor of the appellants because of the failure of the Commerce Department to prove its case against the appellants.
On February 3, 1992, the chancellor granted summary judgment to the appellants on the working capital loan based on the decision of the federal district court. The chancellor also granted the Bank and the Commerce Department summary judgment on the appellants’ three tort counterclaims and dismissed a fourth amended counterclaim. Notices of appeal were filed by both appellants and appellees on March 2,3, and.9,1992.
On March 17, 1992, the appellants filed a partial record in this court. The partial record was comprised of a petition for writ of certiorari to complete the record; the chancellor’s decision on the various motions, including the summary judgments; notices of appeal by the appellants and appellees; and a motion to modify by the appellees. We granted the writ of certiorari on April 6, 1992.
On February 24, 1992, the federal district court reversed itself and set aside its May 30,1991 order for a directed verdict in favor of the appellants. The court reinstated the Commerce Department’s third-party complaint against the appellants, and the matter was set for a second trial on August 10, 1992.
On April 24,1992, the chancellor vacated his order in favor of the appellants as a direct result of the reversal by the federal district court of its decision and reinstated the Commerce Department’s lawsuit.
On August 12,1992, the Commerce Department settled the federal litigation with the appellants. The appellants filed their abstract and brief in this court as part of this appeal a month and a half later on September 28, 1992. On March 10, 1993, the Commerce Department moved this court to dismiss its appeal due to the settlement in federal district court.
I. APPEALABLE ORDER
We first address the question raised by the Bank of whether we have a final appealable order before us which disposes of all of the issues between the parties on appeal as required by Ark. R. App. P. 2(a) and Ark. R. Civ. P. 54(b). The chancellor reinstated the Commerce Department’s cause of action against the appellants on April 24, 1992, but did so after he had lost jurisdiction of the case due to a filing of a partial record in this court on March 17, 1992, following notice of appeal.
Despite the ineffectiveness of the chancellor’s order, the cause of action between the Commerce Department and the appellants has been settled and is moot. This is evidenced by the Commerce Department’s motion to dismiss its appeal filed March 10,1993, and the appellants’ representation in their brief that all matters between the Commerce Department and them had been settled and that an order of dismissal had been entered in federal district court on August 12, 1992.
The motion to dismiss appeal is granted. Hence, all issues between the parties have been disposed of, and the matter is ripe for appeal. Because several issues raised by the appellants on appeal derive from the cause of action assigned by the Bank to the Commerce Department and then settled, they are now moot, and we will not consider them.
II. TORT COUNTERCLAIMS
The dismissal of the Commerce Department’s appeal does not affect the appellants’ appeal of the summary judgment in favor of the Bank relating to the tort counterclaims.
We begin by summarizing our standards for summary judgment review. In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Nixon v. H & C Elec. Co., 307 Ark. 154, 818 S. W.2d 251 (1991). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d31 (1989). All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992); Harvison v. Charles E. Davis & Assoc., 310 Ark. 104, 835 S.W.2d 284 (1992); Reaganv. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991). Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. Ark. R. Civ. P. 56(c); Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
The appellants first urge that the Bank prosecuted its foreclosure claim on August 30, 1990, with malice because the Bank was well aware that the claim was part of a prior settlement in bankruptcy court. In reviewing the tort of malicious prosecution, we concentrate on facts that occurred before the action was commenced. Cordes v. Outdoor Living Center, Inc., supra. The essential elements of the tort are: 1) institution of a legal proceeding; 2) termination of that proceeding in favor of the plaintiff; 3) absence of probable cause to institute the proceeding; 4) malice; and 5) damages. Farm Services Cooperative v. Goshien Farms, 267 Ark. 324, 590 S.W.2d 861 (1979).
The salient element that is clearly not present in this case to support the appellants’ contention is a terminated proceeding in the appellants’ favor. When the chancellor granted the Bank summary judgment on this counterclaim, the foreclosure suit was pending. Since that time, the suit was assigned to the Commerce Department, and now it has been settled with the appellants. Hence, it has never been terminated in favor of the appellants. Accordingly, the claim of malicious prosecution has no merit.
Nor has the claim of abuse of process. We recently set out the requirements to sustain this tort. There must be:
(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.
Union National Bank v. Kutait, 312 Ark. 14, 17, 846 S.W.2d 652, (1993). In considering this tort, we focus on facts occurring after the institution of the action. Cordes v. Outdoor Living Center, Inc., supra. If there was no “process” abused after the initiation of the action, a cause of action will not be sustained. Union National Bank v. Kutait, supra.
The appellants failed to show the chancellor or this court any factual basis to support a claim that some process was issued and abused after the foreclosure complaint was filed, and that the additional process was used for a coercive or improper purpose. This showing was pivotal to withstand summary judgment. The chancellor correctly found this counterclaim to be meritless as a matter of law.
The appellants further counterclaimed on the tort of outrage. We have described the essential elements of this tort as follows:
1. The act must be intended to inflict emotional distress or the actor must know or should have known that emotional distress was likely to result from his conduct;
2. The conduct must be extreme and outrageous and utterly intolerable in a civilized society; and
3. The distress suffered must be so severe and of such a nature that no reasonable man could be expected to endure it.
Deason v. Farmers and Merchants Bank, 299 Ark. 167, 771 S.W.2d 749 (1989).
It is clear to us that this has been a hotly contested matter between the Bank and the appellants in which emotions ran deep and feelings were at a high pitch. The appellants in particular feel aggrieved by what they perceive as the Bank’s bad faith. The primary contention supporting the outrage claim is that the Bank brought the foreclosure action in 1990 when it knew the action was barred under the doctrine of res judicata by a 1986 settlement agreement between the parties in bankruptcy court and by the statute of limitations. On these claims and others the chancellor made this finding:
I am of the opinion that all of the allegations, if true, fall woefully short of outrageous and indecent conduct, even when viewing the record most favorably to the Respondent to the Summary Judgment.
We agree. The test for outrage is an extremely narrow test that is committed by the most heinous conduct. The allegations by the appellants simply do not approach that level. Nor were there issues of material fact presented which might support the cause of action.
III. AMENDED COUNTERCLAIM
We next turn to the appellants’ appeal of the chancellor’s order dismissing their amended counterclaim which sought a declaratory judgment relating to a debt claimed by the Bank in the amount of $620,000 and a statute-of-limitations defense raised by the appellants. The Bank had objected to the amended counterclaim under Ark. R. Civ. P. 15(a) as in no way relating to the pending litigation. The chancellor found that the counterclaim was directed to a separate debt that was not part of the chancery litigation and, thus, should not be addressed.
The appellants argue vigorously that the counterclaim, though it regarded a separate indebtedness, was compulsory and would have been barred under the doctrine of res judicata if not asserted in St. Francis County Chancery Court. That debt, however, emanated from a separate loan between the parties and had been foreclosed, following default, in another jurisdiction — Jackson County Chancery Court — and was then the subject of a bankruptcy court settlement in 1986.
The appellants have presented us with nothing persuasive in their briefs to convince us that the chancellor abused his discretion in dismissing the amended counterclaim. The $620,000 indebtedness was a separate matter originally foreclosed in a different venue. Even if it did somehow relate to the working capital loan which was the subject of this appeal, that matter has been settled between the appellants and the Bank’s successor in interest — the Commerce Department.
There is no reason to reverse the chancellor on this point.
IV. RULE 9
The Bank did not raise the issue of Rule 9 deficiencies, but we may do so on our own motion. Ark. Sup. Ct. R. 9(e) (2). We observe in this appeal that we were subjected by the appellants to an abstract of five volumes totalling almost 1,200 pages. In reviewing the abstract, it became obvious that the appellants had not fully complied with Rule 9(d) which states in part:
The appellant’s abstract or abridgement of the records should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision. (Emphasis ours.)
There was some effort by the appellants to abridge, abstract, and condense the pertinent parts of the record which our rule requires. The record was fifteen volumes plus exhibits and ran over 3,500 pages in length. The abstract was 1,200 pages. The appellants also included record references, as required by the rule, and abstracted some testimony in narrative form. They also state in their Reply Brief that they felt compelled to present an expansive abstract for this court to review in order to determine issues of fact that would contravene the summary judgment granted on the tort counterclaims.
Nevertheless, a considerable number of pages appear to be a verbatim retyping of the record, and much of the testimony abstracted is verbatim colloquy which has been retyped. Further, a good portion of the abstract is in single-spaced type. Single spacing is not expressly prohibited under Rule 9, but double spacing is required in briefs under Rule 8. That has been the universal practice in this court for abstracts, as well.
Moreover, the appellants begin the Statement of the Case with a statement that their lawsuit with the Department of Commerce has been settled in federal district court. Yet, the abstract abounds with irrelevant and redundant material relating to the federal litigation.
The question we must address is whether the abstract is flagrantly deficient as a whole. We take this opportunity to underscore, yet again, the point that excessive abstracting is as violative of our rules as omissions of material pleadings, exhibits, and testimony. Rose City Property Owner’s Assoc. v. Thorne, 299 Ark. 29, 770 S.W.2d 655 (1989); Coffelt v. Arkansas State Hwy. Comm’n, 289 Ark. 348, 712 S.W.2d 283 (1986); Oaklawn Jockey Club, Inc. v. Jameson, 280 Ark. 150, 655 S.W.2d 417 (1983); Harris v. Arkansas Real Estate Comm’n, 274 Ark. 537, 627 S.W.2d 1 (1982).
What distinguishes those cases from the present case is that in all of those cases there was no concerted effort to comply with Rule 9. The appellants copied either most or all of the record as their abstract. Here, the appellants did condense the record by more than one-half and did not simply copy parts of the record for their abstract. They also included record references throughout the abstract. And a portion of the pleadings, testimony, and exhibits is abstracted correctly.
The lapses in full compliance with Rule 9 procedures give us concern. As former Justice George Rose Smith related in his concurring opinion to Oaklawn Jockey Club v. Jameson, supra, members of this court are expected to read the abstract and when there is no discernible basis for inclusion of material, the court must engage in a prodigious waste of time. We enforce Rule 9 to hold practicing lawyers to a reasonably high standard of compliance.
We disagree with the appellants that a fullblown abstract was necessary to determine the existence of factual issues involved in the tort counterclaims. It would have been a relatively simple matter to prepare an abstract pertinent to the tort counterclaims, highlighting the factual issues that the appellants wished to bring to this court’s attention.
Though the abstract was excessive and burdensome, we opted to review the case on the merits only because of a considerable condensation of a fifteen volume record and a manifest effort to comply with Rule 9. With this opinion as notice, we will be less tolerant of failures to condense, double space, and abstract in narrative form in the future.
Affirmed.
Dudley, J., concurs. | [
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Robert L. Brown, Justice.
This case brings to the forefront again the payment of attorney’s fees for court-appointed counsel. The issues raised are the constitutionality of Ark. Code Ann. § 16-92-108 (1987), the responsibility of the state or county to pay those fees and expenses in excess of the statutory limits, and what constitutes “just compensation” for the taking of an attorney’s property in the form of legal services. The trial court concluded that the fee caps were unconstitutional; that the county should pay fees of $350 in each case and costs of $ 100 in one case and $78.44 in the other case and that the State of Arkansas should pay the balance; and that just compensation was substantially less than compensation claimed by defense counsel. We affirm as modified and remand.
The appellee, L.J. Campbell, was charged with nine counts of delivery of marijuana and as a habitual offender. An attorney, James E. Goldie, was appointed to represent him due to his indigency. The case was tried to a jury over three days, and a conviction resulted. Goldie then moved for attorney’s fees in the amount of $10,335, under Ark. Code Ann. § 16-92-108 (b)(1), and costs of $165.78. By judgment entered May 19, 1992, the trial court concluded that counsel was “not entitled to be compensated at the maximum rate he charges private clients” but “only a reasonable amount of compensation.” It then awarded $3,500 as compensation and $165.78 in costs. Of those amounts, Newton County was ordered to pay $3 50 in fees and $ 100 in costs, and the State of Arkansas was ordered to pay the balance.
Campbell was also charged in a second information with two counts of delivering methamphetamine and propylhexadrine, manufacturing marijuana, and as a habitual offender. Campbell pled guilty to these charges on February 28, 1992. Goldie, as appointed counsel, then moved for attorney’s fees in the amount of $3,030 and $78.44 as costs. The trial court entered judgment on May 26,1992, again finding that counsel was “not entitled to be compensated at the maximum rate he charges private clients” but “only a reasonable amount of compensation.” The court then awarded $650 as compensation and $78.44 in costs. Newton County was ordered to pay $350 of the fees and the full $78.44 in costs, with the State of Arkansas being responsible for the balance of the fees.
On June 4, 1992, the State filed a motion to amend both judgments as to the issue of responsibility for payment. No order was entered on the motion within thirty days, and the State proceeded with this appeal on the issue of liability for payment of fees. Goldie cross-appealed on whether he was denied just compensation for his services.
I. DIRECT APPEAL — STATE LIABILITY FOR PAYMENT OF LEGAL FEES
The statute embracing fee and expense caps, Ark. Code Ann. § 16-92-108 (1987), reads:
(a) Whenever legal counsel is appointed by any court of this state to represent indigent persons accused of crimes, whether misdemeanors or felonies, the court shall determine the amount of the fee to be paid the attorney and an amount for a reasonable and adequate investigation of the charges made against the indigent and shall issue an order for the payment thereof.
(b) (1) The amount allowed for investigation expenses shall not exceed one hundred dollars ($100), and the amount of the attorney’s fee shall be not less than twenty-five dollars ($25.00) nor more than three hundred fifty dollars ($350).
(2) The amount of attorney’s fees for attorneys who defend indigents accused of capital murder or murder in the first degree shall be not more than one thousand dollars ($1,000).
(3) The attorney’s fees provided for by this section shall be based upon the experience of the attorney and the time and effort devoted by him in the preparation and trial of the indigent, commensurate with fees paid other attorneys in the community for similar services.
(c) (1) Upon being furnished an order of the court fixing the fees, the quorum court of the county in which the indigent was charged shall appropriate from the county general fund adequate funds to pay the fees, not to exceed the amount of three hundred fifty dollars ($350) for the attorney’s fees nor one hundred dollars ($100) for investigation expenses, and the county treasurer shall disburse the fees to the appointed attorney.
(2) The balance not paid by the counties shall be paid by the state from the Trial Expense Assistance Fund created by § 16-92-109.
(d) An attorney shall not be so appointed by a court if the attorney certifies to the court, in writing, that he or she has not attended or taken a prescribed course in criminal law in an accredited school of law within twenty-five (25) years prior to the date of appointment, that the attorney does not hold himself or herself out to the public as a criminal lawyer, and that he or she does not regularly engage in the practice of criminal law.
There has been a division on this court concerning the facial viability of the fee cap provisions of § 16-92-108. Our plurality decision in State v. Post, supra, illustrates that division. Two members of this court agreed that the statute was constitutionally impaired and should be invalidated. Two members, concurring, agreed that Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1990), struck down the fee cap section, § 16-92-108(b), as applied to that case on Due Process and Equal Protection grounds. Three members of this court, dissenting, also referred to the fact that Arnold v. Kemp rendered the fee cap and expense section of § . 16-92-108 unconstitutional under the circumstances of that case.
We'take this opportunity to clarify our position and for that reason refuse to grant the State’s motion to dismiss its appeal. We hold that the fee cap statute — § 16-92-108 — is unconstitutional on its face. This accords with our statements in cases subsequent to Arnold v. Kemp where we professed that § 16-92-108 was unconstitutional. See Lynch v. Blagg, 312 Ark. 80, 847 S.W.2d 32 (1993); Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1991) (per curiam); Finley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991). Because the statute is unconstitutional there is no statutory vehicle for the assessment of part of the fees and expenses against Newton County. Accordingly, as was the case in State v. Post, supra, the portion of the trial court’s order assessing $450 against Newton County in one case and $428.44 in the other is modified to place full responsibility for payment of the award on the State.
II. CROSS APPEAL — JUST COMPENSATION
Mr. Goldie contends on cross appeal that the fees awarded do not represent just compensation for a taking of his property. We recently considered this issue and concluded that just compensation did not mean full compensation but rather reasonable compensation to be determined by the trial court based on certain relevant factors. State v. Independence County, No. 92-1298 (April 5, 1993). In that case, we quoted from our decision in Arnold v. Kemp, supra, and reaffirmed our understanding of just compensation:
In awarding fees to Messrs. Arnold and Allen for reasonably expended services, we do not mean that the trial court must simply award fees based on their customary hourly charges or fixed fees for services in criminal cases of this nature. To the contrary, the trial court should determine fees that are considered “just.” In Chrisco v. Sun. Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990), we recognized various factors to be considered by a trial court in making its decision, on an award of attorneys’ fees, including the experience and ability of the attorney, the time and labor required to perform the legal service properly, the novelty and difficulty of the issues involved, the fee customarily charged in the locality for similar legal services, the time limitations imposed upon the client’s defense or by the circumstances, and the likelihood, if apparent to the court, that the acceptance of the particular employment will preclude other employment by the lawyer.
306 Ark. 304-305, 813 S.W.2d at 776. This reasoning certainly applies to the present case.
One additional factor bears mention. We note that federal judicial officers are advised by the Administrative Office of the United States Courts to be aware of the available judicial appropriation in awarding compensation. See 7 Guide to Judiciary Policies and Procedures, “Appointment of Counsel in Criminal Cases,” Ch. VI, § 6.02(B), p. 60 (Supp. 1990). Similarly, prudence dictates that our courts be aware of what government funds are available for payment of court-appointed counsel.
The trial court in the instant case made several findings in assessing reasonableness of the fees: 1) a fiat fee charged for similar cases to those handled by counsel would be less than the fee claimed; 2) the federal system does not compensate court-appointed counsel at counsel’s rates of $80 an hour for work out-of-court and $100 an hour for work in-court; 3) counsel had not been overburdened by criminal appointments in the past two years; 4) there were too many hours invested in the case; and 5) court-appointed counsel in criminal cases are not entitled to receive the maximum rate charged in civil cases. The court concluded that a reduction in fees was appropriate and set the fees accordingly.
We hold that the trial court’s findings were not in error and that its conclusions of what fees and costs to award did not constitute an abuse of discretion. See State v. Independence County, supra; Chrisco v. Sun Indus., Inc., supra; Southall v. Farm Bureau Mutual Ins. Co. of Arkansas, Inc., 283 Ark. 335, 676 S.W.2d 228 (1984). We underscore that it is incumbent upon the trial courts to decide the reasonableness of fee requests based on relevant factors such as we outline here. That is precisely what the trial court did in this case.
Affirmed as modified and remanded.
On March 23,1983, the State moved to dismiss its appeal on the basis that this issue was decided in State v. Post, 311 Ark. 510, 845 S.W.2d 487 (1993). We deny the motion for the reason stated in this opinion. | [
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Robert L. Brown, Justice.
The Pulaski County Circuit Court granted summary judgment in favor of the appellees on the issue of whether the appellant, Marlin Cash, could sue them in tort. Cash appeals and contends, among other things, that he was employed by Little Rock Quarry Company, Inc. at the time of his injury and was paid benefits under the Longshoreman’s and Harbor Worker’s Compensation Act (“LHWCA”) as a consequence of that employment. He argues that payment of the LHWCA benefits does not preclude tort actions against third-party appellees.
The appellee, Isaac F. Carter, is the owner of Carter Companies, a parent corporation for several subsidiaries, including appellee Carter Construction and non-party Little Rock Quarry. He is also the owner of appellee Arkansas Dredging Company, Inc., which is a separate parent corporation. On July 22, 1987, Cash was doing welding work on a barge owned by Carter Construction at the direction of Carter Construction employees. The barge was dry docked at a yard owned by Arkansas Valley Dredging. While welding, he inhaled toxic fumes and suffered permanent brain damage. He subsequently filed a claim under the LHWCA and is currently receiving benefits for his disability as an employee of Carter Construction.
On August 3, 1988, Cash filed a negligence action against the appellees and contended that the barge was not adequately ventilated, that safe tools and safety equipment were not provided, and that other safety precautions were not followed. The appellees answered and then moved for summary judgment, asserting that Cash was either an actual employee of Carter Construction or a loaned employee to that firm and that Carter, individually, and Arkansas Valley Dredging were in no way involved in the accident.
The circuit court granted summary judgment to the appellees. It agreed with Carter Construction that Cash was either its actual employee or a loaned employee when the accident occurred and that his exclusive remedy against that firm was under the LHWCA. The court further found that Carter, individually, owed no duty to Cash at the time of the accident and that Arkansas Valley Dredging was not involved.
Cash first argues that summary judgment was inappropriate due to unresolved factual issues in this case. He is correct that summary judgment is an extreme remedy which is only proper when it is clear that there are no issues of fact to be litigated. Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992); Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986). It is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Daniels v. Riley’s Health and Fitness Centers, 310 Ark. 756, 840 S.W.2d 177 (1992). The burden of proving that there is no genuine issue of material fact is upon the summary judgment movant, and all proof submitted must be viewed in a light most favorable to the party resisting the motion. Any doubt and all inferences must be resolved against the moving party. Lively v. Libbey Memorial Physical Medical Center, 311 Ark. 41, 841 S.W.2d 609 (1992).
Once the movant makes a prima facie showing of entitlement to summary judgment, the respondent must meet proof with proof by showing a genuine issue of material fact. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992); Pruitt v. Cargill, Inc., 284 Ark. 474, 683 S.W.2d 906 (1985). On appeal, the appellate court determines the appropriateness of a grant of summary judgment based on whether the evidentiary items presented in support of the motion left a material question of fact unanswered. Thruston v. Little River County, Ark., 310 Ark. 188, 832 S.W.2d 851 (1992).
Cash is adamant that a material fact issue exists as to which business employed him when he was injured. In determining employment, we look to various factors with the degree of control being the most universally accepted standard for establishing an employer-employee relationship. Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969); see also Blankenship v. Overholt, 301 Ark. 476, 786 S.W.2d 814 (1990).
Here, Cash urges that his employer was Little Rock Quarry because that is the entity that issued paychecks to him. He also did some work for that business. According to his deposition, he was at the quarry three or four times, one day at a time, presumably over the course of a year. The quarry, he stated, is located at a separate site from the shipyard where the barge in question was dry docked and where the welding took place.
In that same deposition, however, Cash admitted that he worked sixty to seventy percent of the time at the yard and at times on barges owned by Carter Construction. Moreover, the record in this case evidences, contrary to Cash’s affidavit, that his LHWCA benefits were paid showing Carter Construction as his employer. His W-2 Form also shows employment with Carter Construction. At the time of the injury, he was working on a Carter Construction barge at the direction of Carter Construction personnel. Little Rock Quarry, the appellees aver, was only used for payroll account purposes to issue paychecks for employees of the Carter Companies. The weight of the evidence on which firm controlled Cash at the time of the accident appears to predominate in favor of Carter Construction. Nevertheless, we cannot say that Cash’s sworn statements that Little Rock Quarry employed him and the accompanying paycheck stubs do not present a fact question for the jury to resolve.
The same doubts do not afflict us, though, as to whether Cash was a loaned employee to Carter Construction, and thus a temporary employee of that firm, at the time he was injured. We recently had occasion to examine the doctrine of dual employment. See Daniels v. Riley’s Health & Fitness Ctrs. (“the Club”), supra. In Daniels, the facts and issues bear some similarity to those in the present case. An employee claimed workers’ compensation benefits due to an injury experienced at the Club on the basis that he was an employee of Aaron Temporary Services and not the Club. He then sought to sue the Club in tort. Summary judgment was granted in favor of the Club, and we affirmed. In doing so, we cited the dual employment doctrine and quoted from Larson, The Law of Workmen’s Compensation, § 48.00 (1962):
When a general employer lends an employee to a special employer, the special employer becomes liable for workmen’s compensation only if
(a) The employee has made a contract for hire, express or implied, with the special employer;
(b) The work being done is essentially that of the special employer; and
(c) The special employer has the right to control the details of the work.
When all three of the above conditions are satisfied in
relation to both employers, both employers are liable for workmen’s compensation.
Employment may also be “dual” in the sense that, while the employee is under contract of hire with two different employers, his activities on behalf of each employer are separate and can be identified with one employer of the other. When this separate identification can clearly be made, the particular employer whose work was being done at the time of injury will be held exclusively liable.
310 Ark. at 759,840 S.W.2d at 178. We concluded that there was no question that the Club had the right to control Daniels at the time of his injury and that Daniels was performing a task within the scope of his employment at that time. Daniels averred that he was not employed by the Club, but we determined that there was nothing in the contract of employment with Aaron Temporary Services that precluded a holding that he was a temporary employee of the Club by virtue of an implied contract at the time of his injury. We, therefore, affirmed the summary judgment.
In the case before us, the circuit court found that Cash was either an employee of Carter Construction or a loaned employee to that same firm. This stands to reason. The most significant question regarding a loaned employee is which company has direction and control of the employee. George’s Inc. v. Otwell, 282 Ark. 152, 666 S.W.2d 406 (1984). If Cash was not an employee of Carter Construction in actuality, he was on loan to that firm on a temporary basis and subject to its control. Again, Cash was working on a Carter Construction barge at the direction of Carter Construction supervisors when the accident occurred. Though he maintains he was an employee of Little Rock Quarry, he knew that he was not working at the quarry site: He admitted that he did work for Carter Construction on occasion on its barges in dry dock. Though he describes his supervision on the barge as not “detailed,” he also admitted that he was assigned to work there. The LHWCA Payment of Compensation form and his W-2 form both show Carter Construction as his employer. And Cash presents no proof that he was not working for Carter Construction when he was injured other than a bald assertion to the contrary. Offsetting this assertion is his response to the appellees’ amended and substituted motion for summary judgment, where he refers to his status as that of loaned employee, though the particulars of this status are not revealed. In sum, Cash has presented nothing of substance to support a finding that he was not a loaned employee to Carter Construction or that he had not acquiesced in temporary employment with that firm at the time of the accident.
It is clear that if Cash was a loaned employee to Carter Construction, his exclusive remedy is LHWCA as to Carter Construction. Touchet v. Travelers Indemnity Co., 221 F.Supp. 376 (W.D.La. 1963); see also Beaver v. Jacuzzi Brothers, Inc., 454 F.2d 284 (8th Cir. 1972) (workers’ compensation is exclusive remedy for loaned employee). We hold that there was no error in granting summary judgment in favor of Carter Construction.
Nor do we conclude that there was any error in the summary judgment in favor of Carter individually and Arkansas Valley Dredging. Cash presented no evidence that Carter was directly involved in the events surrounding the injury or that he was acting in any capacity other than as a corporate officer when the accident occurred. Hence, there is nothing on which to premise individual liability on the part of Carter.
With respect to Arkansas Valley Dredging, Cash contends that it is liable because it owned the dry dock and loaned an extension cord and perhaps some fans for use in the welding job. Arkansas Valley did not own the barge or the welding equipment or employ the supervisory personnel. Assuming that the dry dock, the extension cord, and the fans did belong to Arkansas Valley Dredging, this participation in the events that transpired was incidental. Moreover, the alleged negligence by Cash was failure to provide safe tools, and there is no contention by Cash that these accessories were not safe. Having had no role in the employment of Cash or in the task he was called upon to perform, Arkansas Valley Dredging owed him no duty.
Affirmed.
Glaze, J., not participating. | [
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Jack Holt, Jr., Chief Justice.
This is an appeal of the White County Circuit Court’s approval of a decision of the Arkansas Contractors Licensing Board (Board) to fine Judge Brimer, Jr. (Brimer) for acting as a contractor without a license in violation of Ark. Code Ann. § 17-22-101 (1987). Weagree and affirm.
Michael Hoofman is an investigator with the Board. According to Hoofman’s testimony before the Board, he first investigated the appellant, Brimer, when he was working on the Brown Sheet Metal Building in Gravel Ridge. Brimer told Hoofman that he was getting out of the business and working for his cousin, Mrs. Brown. So, Hoofman closed the investigation without a hearing.
Hoofman next encountered Brimer when he was working as a contractor on the Russell Grocery Store in Russell, Arkansas. This investigation led to a hearing' before the Board at which it voted unanimously to charge Brimer with a civil penalty of $547 to be suspended and ordered him to refrain from bidding on projects in excess of $20,000 prior to being properly licensed as a contractor.
Mr. Hoofman then testified as to the contracting job at issue stating that he was in Blytheville, Arkansas and saw a church, First United Pentecostal, under construction. He took photographs of it and then went up to Brimer, who was on the job site, and asked him how he was involved in the project. Brimer replied that he was being paid by the hour and that Pastor Stephen Spears was in charge.
Hoofman talked to Pastor Spears who indicated that Brimer had given him proposals and contracts for the concrete work and the metal building. The concrete work proposal quoted $15,000 and the building proposal quoted $ 16,000. Both of these proposals were signed by Brimer.
Hoofman next subpoenaed Razorback Concrete to obtain statements it had sent to the church. These statements totalled $16,814.16 for materials. And, according to a proposal by M.B.I. Enterprises, the metal for the building would total $75,084.80. This proposal is addressed to and signed by Stephen Spears.
After hearing this testimony, the Board voted unanimously to find Brimer guilty of violating the Contractor’s Licensing Law and fined him $100 per day to the limit of three percent of his contract. This fine would be reduced to two percent if he obtains a license within one hundred twenty days. The Board’s findings were:
FINDINGS OF FACTS
1. Judge Brimer, Jr. has undertaken the position of contractor as defined in Section 1. (Act 150 of 1965 as amended), 1st United Pentecostal Church in Blytheville, AR.
2. Judge Brimer, Jr. is not licensed by the Contractors Licensing Board.
CONCLUSIONS OF LAW
Judge Brimer, Jr. is guilty of violating Section 13, Act 150, as amended. (See Act 180 of 1985.)
ORDER
(1.) The Board voted unanimously that Judge Brimer, Jr. shall pay a civil penalty of $3,687.00, suspended to $2,458.00 upon licensure within 120 days of receipt of this Order and refrain from bidding on or performing work on any projects in excess of $20,000.00 prior to being licensed with the Contractor’s Licensing Board.
DONE AND SO ORDERED this 8th day of May, 1992.
Brimer appealed this decision to the White County Circuit Court. After reviewing the transcript of the hearing and briefs submitted by both sides, the court affirmed the decision of the Board. It is from this decision that Brimer brings this appeal.
Brimer claims that proper interpretation of the statute, Ark. Code Ann. § 17-22-101 (1987) leads to the conclusion that he is not a contractor.
The language of the statute clearly indicates that in determining whether a person is a contractor, the court should look at the total costs of the contracting job:
As used in this chapter, unless the context otherwise requires, “contractor” means any person, firm, partnership, association, corporation, or other organization, or any combination thereof, who, for a fixed price, commission, fee or wage, attempts to or submits a bid to construct, or contracts or undertakes to construct, or assumes charge, in a supervisory capacity or otherwise, or manages the construction, erection, alteration, or repair, or has or have constructed, erected, altered, or repaired, under his, their or its direction, any building, apartment, condominium, highway, sewer, utility, grading, or any other improvement or structure on public or private property for lease, rent, resale, public access or similar purpose, except single-family residence, when the cost of the work to be done, or done, in the State of Arkansas by the contractor, including but not limited to, labor and materials, is twenty thousand dollars ($20,000) or more.
(Emphasis added.)
Our rule of interpreting statutory language is that we construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. City of Hot Springs v. Vapors Theatre Restaurant, Inc., 298 Ark. 444, 769 S.W.2d 1 (1989). The language in licensing statutes must be strictly construed. Wilcox v. Safley, 298 Ark. 159, 766 S.W.2d 12 (1989). Applying this rule, the statute clearly indicates that the court is to look at the total cost of the work to be done and not merely the cost of the materials actually ordered or passing through the contractor’s hands. In short, the statute refers to the cost of the project.
The purpose behind the Contractors Licensing Act is to require contractors who desire to engage in certain types of construction work to meet certain standards of responsibility such as experience, ability, and financial condition. Bird v. Pan Western Corp., 261 Ark. 56, 546 S.W.2d 417 (1977). Brimer has twice been penalized for acting outside this law.
When an administrative agency’s decision is appealed, a number of general rules of appellate review apply. Review of administrative decisions, both in the circuit court and here, is limited in scope. The appellate court’s review is directed, not toward the circuit court, but toward the decision of the agency. In Re Sugarloaf Mining Co., 310 Ark. 772, 840 S.W.2d 172 (1992); Arkansas Alcoholic Bev. Control v. Person, 309 Ark. 588, 832 S.W.2d 149 (1992). The construction of a statute by an administrative agency should not be overturned unless it is clearly wrong, and the court will not substitute its judgment for that of an administrative agency unless the administrative agency’s decision is “arbitrary and capricious.” Ramsey v. Department of Humans Services, 301 Ark. 285, 783 S.W.2d 361 (1990); Arkansas State Bank Comm’r v. Bank of Marvell, 304 Ark. 602, 804 S.W.2d 692 (1991). The evidence is given its strongest probative force in favor of the ruling of the administrative agency. Arkansas Contractors Licensing Bd. v. Butler Constr. Co., 295 Ark. 223, 748 S.W.2d 129 (1988). The court may not reverse a decision of an administrative agency if there is any substantial evidence to support its decision. Butler Constr. Co., supra, citing Williams v. Scott, 278 Ark. 453, 647 S.W.2d 115 (1983).
Brimer contends that because he did not directly oversee or order the materials used for the building and the concrete work, his work did not total $20,000 or more as required by the statutory definition of contractor. But, the evidence presented at the administrative hearing clearly indicates that the labor and materials for the metal building totalled over $90,000 and for the concrete work it totalled over $30,000. Taken together or separately these jobs designate Brimer as a contractor for the purposes of Ark. Code Ann. § 17-22-101 (1987).
Yet, Brimer insists that because the materials were paid for by the church and not by him, then he is not a contractor. This argument is not persuasive. In Arkansas Contractors Licensing Bd. v. Butler Constr. Co., 295 Ark. 223, 748 S.W.2d 129 (1988), this court was faced with a similar argument. Like Brimer, Butler contended that he was working for a flat fee and did not furnish any materials or labor. In finding against Butler, we determined that the court should look to see if the overall cost of the project equals or exceeds $20,000 in determining if a contracting license is required.
Nevertheless, Brimer argues that Butler Constr. Co. is not persuasive because the board found that Butler had agreed to be responsible for obtaining all material and no such finding was made in Brimer’s situation. It seems, though, that the Board’s decision comes down to a question of sufficiency of the evidence before the Board. This court has previously held that in order to establish an absence of substantial evidence, the appellant has the burden of establishing that the proof before the administrative board was so nearly undisputed that fair-minded persons could not reach the Board’s conclusions. Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992); Arkansas Health Planning and Development Agency v. Hot Springs County Memorial Hospital, 291 Ark. 186, 723 S.W.2d 363 (1987).
Brimer has failed to meet this burden. The evidence before the Board indicated that he has a history of refusing to become licensed... he even admitted that he did not want to get a contractor’s license. He submitted proposals for the metal building and the concrete work on his business stationery. He admittedly oversaw the concrete work and the metal building. The evidence presented clearly proves that Brimer was in charge of jobs costing more than $20,000, and as such, the decision of the administrative board is upheld and the findings of the White County Circuit Court are affirmed.
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Jack Holt, Jr., Chief Justice.
Appellant, Kenneth Talley, appeals his conviction of delivery of a controlled substance arguing that the evidence was insufficient to corroborate an alleged accomplice’s testimony. We hold that in light of the fact that the witness was not an accomplice, the evidence was more than sufficient and affirm.
Talley was charged with delivery of a controlled substance, possession of a controlled substance with intent to deliver, possession of a controlled substance (marijuana and codeine), and intent to use drug paraphernalia (rolling papers). As a former felon with four or more previous convictions, he was subjected to sentence enhancement under Ark. Code Ann. § 5-4-501 (1987). After a bench trial on Count Two, delivery of morphine, Talley was sentenced to forty-five years imprisonment.
Talley’s arrest transpired after the following events: a confidential informant, Charles Schrader, contacted Jacksonville Police Department Detective Kelley Smiley and said that he could purchase morphine from Kenneth Talley.
Detective Smiley testified that he and Office John Williams met the informant at the park. They reviewed the conversation Schrader had with Talley. Then, the officers searched Schrader from “head to toe” to make certain he did not have any drugs on him. Although they did not remove any of his clothing or his shoes, the officers pulled out Schrader’s pockets, checked his waistband and gave him a complete pat down. The officers then searched the informant’s pickup truck. Confident that Schrader did not have any drugs on him, the officers gave him two hundred dollars of Jacksonville Police Department money for the drug buy. The serial numbers on the bills were recorded, and Schrader signed an expenditure form to record his receipt of the funds.
Detective Smiley stated that they then followed Schrader to Talley’s house and watched him walk to the door and knock. Talley answered the door.
According to Schrader’s testimony, once he entered the house, he told Talley that he had the money. The two men went to the bathroom where Talley gave him morphine in exchange for the money. The pills were in a medicine bottle, but Talley poured the pills onto toilet paper and wrapped them before giving them to Schrader. The entire transaction took approximately ten minutes.
After leaving Talley’s house, Schrader drove directly to the police station, the designated meeting place, with the officers following behind him. Once in the police department parking lot, he exited his truck and handed the officers the sixteen purple tablets, later identified by Dan Hedges of the Arkansas State Crime Lab as morphine sulfate tablets, wrapped in toilet paper. The officers searched Schrader and his vehicle again to ensure there were no more controlled substances present.
Talley was subsequently arrested and waived his right to a jury trial. After a bench trial, Talley was found guilty of delivery of a controlled substance and sentenced to forty-five years imprisonment.
The sole issue on appeal is whether the trial court erred in denying Talley’s motion for directed verdict because there was no corroborating evidence to support Schrader’s “accomplice” testimony. As this argument has no merit, we affirm the conviction.
While it is true that an accomplice’s testimony must be corroborated pursuant to Ark. Code Ann. § 16-89-111 (e)(1) (1987), the record is devoid of any evidence indicating that Schrader was an accomplice rather than a confidential informant. A buyer of illicit drugs is not an accomplice of the seller. Ellis v. State, 306 Ark. 461, 464, 816 S.W.2d 164, 166 (1991); Williams v. State, 290 Ark. 449, 451, 720 S.W.2d 305, 306 (1986).
Accordingly, Talley’s conviction is affirmed. | [
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Robert H. Dudley, Justice.
Respondent, George Galbraith, was injured on August 1, 1971 when a piece of steel lodged in his left eye. That same day he sought medical treatment. He was unable to work for a period of five weeks and was paid temporary total disability benefits pursuant to our Workers’ Compensation Act. On October 2, 1971, the object was surgically removed. His ophthalmologist’s report stated “it is possible that this lens opacity may mature later on and the patient would have occupational vision lost left eye.” On May 1, 1972, respondent was paid a lump sum for forty percent permanent partial disability to the left eye. Almost two years later, in February, 1974, respondent suffered the complete loss of sight in the left eye. On February 5, 1975, almost three years after payment of compensation for the permanent partial disability, respondent filed a claim for compensation for complete loss of the eye. The Court of Appeals, in an unpublished opinion, found the inj ury was compensable and remanded the case to the Workers’ Compensation Commission for consideration of the issues of a latent injury and the statute of limitations. Galbraith v. Cornish Welding Shop et al, September 30, 1980. Upon remand the Workers’ Compensation Commission found the claim was filed within the period of limitations and awarded respondent additional benefits for the complete loss of sight in the eye. The Court of Appeals then affirmed the commission. Cornish Welding Shop et al v. Galbraith, 6 Ark. App. 115, 639 S.W.2d 68 (1982). We granted certiorari pursuant to Rule 29 (1) (c) to determine whether there was error in interpreting the applicable statutes. We reverse the Court of Appeals and dismiss the claim because it is filed outside the period for additional compensation.
The statute of limitations at issue is as follows:
Additional Compensation. In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one [1] year from the date of the last payment of compensation, or two [2] years from the date of the injury, whichever is greater. . . .
Ark. Stat. Ann. § 81-1318 (b) (Repl. 1976).
It is uncontradicted that the claim was not filed within one year from the date of the last payment of compensation. However, both the Workers’ Compensation Commission and the Court of Appeals held that the claim was brought within two years from the date of the injury.
Arkansas is an “injury state” because we have long interpreted the applicable statutes as meaning that the date of accident and the date of injury are not necessarily the same. Ark. Stat. Ann. § 81-1302 (d), (n) (Repl. 1976); Donaldson v. Calvert-McBride Printing Company, 217 Ark. 625, 232 S.W.2d 651 (1950). Injury means the state of facts which first entitled the claimant to compensation, so that if the injury does not develop until some time after the accident, the cause of action does not arise until the injury develops or becomes apparent. It was upon the concept of a latent injury that the Court of Appeals and the Workers’ Compensation Commission found the claim was filed within two years from the date of the injury. However, there was no latent injury. The respondent knew he was injured on the date of the accident, August 1, 1971. In May, 1972, his ophthalmologist’s report stated that there was a permanent partial disability to the eye and that he might lose occupational vision of the eye. An operation was performed on the inj ured eye. He filed a claim for benefits and was compensated for a permanent partial disability. The injury was patent, at the latest, by May 1972, when the ophthalmologist made his report. From that time forward it was not a latent injury. In Sanderson & Porter v. Crow, 214 Ark. 416, 216 S.W.2d 796 (1949), we said: “[W]hen the substantial character of the injury becomes known, then the claimant must file his claim within a specified period of time, or be barred thereafter by the statute of limitations.” Likewise, this claim for additional compensation in this case is barred because the two year statutory period of limitation from the date of the inj ury expired long before the February, 1975, filing of this claim.
Reversed and dismissed. | [
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George Rose Smith, J.
TMs appeal is from a judgment by which the appellant was fined $600 for the offense of selling intoxicating liquor in a dry county.
The appellant contends that the State failed to prove that what he sold was intoxicating liquor. Lee Mode testified that on the night of the offense he refused to allow his son Gerald, a confirmed alcoholic, to order whiskey by telephone. Gerald then went off in a taxi, and Lee followed in his car. He testified that Gerald stopped at the appellant’s house and entered the kitchen. Lee watched through the window and saw the appellant hand Gerald a half pint of whiskey in exchange for two dollars. The witness said that the bottle was labeled whiskey, but he did'not smell or taste the contents.
This testimony is sufficient to support the jury’s conclusion that intoxicating liquor was sold. We have held that a jury question is presented when a witness testifies that liquor was sold, even though he does not say that it was alcoholic or intoxicating. Fuller v. State, 179 Ark. 913, 18 S. W. 2d 913. The appellant is mistaken in thinking that a witness should not be permitted to identify whiskey by sight alone. If it were required that the witness must have smelled or tasted the liquor it would be possible for bootleggers to sell their wares on the streets with impunity, merely by having the buyer hasten away with his purchase before anyone could smell it or taste it.
Several witnesses testified that the appellant’s reputation for violating the liquor laws is bad. Ark. Stats. 1947, § 48-940. On the authority of Richardson v. State, 211 Ark. 1019, 204 S. W. 2d 477, it is insisted that the-court should have restricted this testimony to recent reputation only. The record shows that the testimony was in fact so restricted. All questions about reputation were framed in the present tense, and when the objection was made below the court stated that he assumed the witness was referring to the appellant’s present reputation. Later on, the jury were instructed that they might consider proof of recent reputation if corroborated by other substantial evidence of guilt. This procedure conforms to even the most strict interpretation of our earlier holding.
Complaint is made of the court’s refusal to give an instruction requested by the appellant. Lee Mode, the State’s principal witness, admitted on cross-examination that he had been convicted of a felony. The appellant submitted an instruction to the effect that the jury might take previous felony convictions into consideration in weighing the testimony of any witness. This instruction was properly refused. The court had given a comprehen sive instruction upon tlie matter of credibility, telling the jury that they might consider the witnesses’ demeanor on the stand, their means of knowledge, the reasonableness of their statements, their interest in the ease, their bias or prejudice, and all the facts and circumstances testified to. The court’s instruction, however, did not mention previous convictions as bearing upon the issue of credibility.
Had the requested instruction been given it would 'have unduly singled out this particular test of credibility and would have placed unnecessary emphasis upon Mode’s criminal record. In a similar situation we have upheld the trial court’s refusal to give a separate instruction telling the jury that they might consider the accused’s evidence of good character in weighing the testimony. “This court is thoroughly committed to the rule that in the trial of cases a court should not single out specific features of the case and emphasize them in separate instructions, but should submit all the facts and circumstances together for the consideration of the jury.” Price v. State, 114 Ark. 398, 170 ,S. W. 235. In a later case we disapproved an instruction that wonld have unnecessarily stressed the testimony of certain witnesses. Shank, v. State, 189 Ark. 243, 72 S. W. 2d 519. At most the appellant was entitled to have the matter of previous convictions mentioned along with the other tests of credibility that were set forth in the court’s instruction. No such modification was requested.
It is also asserted that certain testimony given by a State police officer was prejudicial to the accused. The court, however, immediately instructed the jury to disregard these statements, and the appellant did not press the point by asking for a mistrial, nor was the court’s ruling assigned as error in the motion for a new trial.
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John I. Purtle, Justice.
Appellant was convicted by a jury of the crime of aggravated robbery, in violation of Ark. Stat. Ann. § 41-2102 (Repl. 1977), and of battery in the first degree, in violation of Ark. Stat. Ann. § 41-1601 (Repl. 1977). He was sentenced to consecutive terms: life imprisonment for aggravated robbery and 20 years imprisonment for first degree battery. On appeal he argues: (1) the trial court erred in not granting a new trial because of a tainted in-court identification by a witness; and, (2) the trial court erred in convicting him of aggravated robbery and first degree battery, both of which arose out of the same conduct.
We agree that the conviction of both offenses cannot stand in view of the provisions of Ark. Stat. Ann. § 41-105 (Repl. 1977). Therefore, the conviction of battery in the first degree and the sentence therefor will be set aside.
Appellant was charged with the offense of aggravated robbery in that he employed physical force upon the victim through the use of a deadly weapon, a pistol. He was also charged with battery in the first degree by use of the same pistol which was employed in committing the aggravated robbery. There is no dispute that the person who robbed the victim shot him while following the same course of conduct which constituted the aggravated robbery. The battery occurred when the victim attempted to use his own pistol to prevent the robbery. The robber and his victim engaged in a shoot-out but only the victim was injured. His injuries were severe and he was hospitalized for a time.
After the conclusion of the trial appellant’s attorney learned from a witness that the deputy prosecuting attorney had called witnesses Richards and Hooks outside the witness room and allegedly exhibited to them a picture of the appellant for the purpose of enabling them to identify the appellant when they testified before the jury. A motion for new trial was made based upon the alleged improper conduct of the deputy prosecuting attorney. A hearing on the motion was held and the deputy prosecuting attorney denied the allegation. Also, witness Richards denied seeing a photograph of the appellant before he testified. During the trial on the merits of the case Hooks had been unable to identify the appellant. Therefore, there is no damage even if he did see a picture of the appellant. On the other hand, Richards made an in-court identification. During his testimony in the trial Richards made inconsistent statements to the jury. The victim also made inconsistent statements and misidentified a photograph of the appellant. Although both Richards and the victim made apparent errors in the identification process, both made positive in-court identifications of the appellant. This was all brought to the attention of the trial court during the hearing on the motion for new trial. The matter of a new trial is within the discretion of the trial court. We do not reverse the decision of the trial court unless appellant can meet the burden of proving that the trial court’s decision was clearly erroneous. Tedder v. Blackmon’s Auctions, Inc., 274 Ark. 241, 623 S.W.2d 516 (1981). In the present case, this burden was simply not met by appellant.
We recognize there has been some confusion in situations where more than one offense was committed during a single course of conduct. Ark. Stat. Ann. § 41-105 (Repl. 1977) reads in part:
(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(a) one offense is included in the' other, as defined in subsection (2). . .
(2) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or
(b). . .
We interpret this statute to prohibit multiple sentences when the same conduct results in more than one offense. An accused may be convicted of only one offense when the proof required to prove the offense necessarily included proof of another. The purpose of this statute is to allow a conviction of a lesser included offense when the accused is not convicted of the greater offense. In the present case the appellant was convicted of both the greater offense and the lesser included one. The plain meaning of the words used in this statute provides there may be only one conviction. Since the record clearly establishes a basis for both convictions, we must reverse one of them. The statute makes no provision as to the procedure to follow when there has been more than one finding of guilt resulting from the same conduct. In Wilson v. State, 277 Ark. 219, 640 S. W.2d 440 (1982), we held that the lesser penalty should be set aside in situations such as exist in the present case. We affirm our holding in Wilson and set aside the 20 year sentence and conviction for battery in the first degree.
The information charged battery in the first degree by use of the pistol which was used to commit the aggravated robbery. Therefore, the facts of the present case required proof of thé aggravated robbery, the underlying felony, in the course of proving battery in the first degree which was alleged to have been committed during the course of a felony. Under the informations here in question the greater offense was actually included in the lesser offense. We are not unaware of our decision in Foster v. State, 275 Ark. 427, 631 S.W.2d 7 (1982), wherein we held that it was possible to commit aggravated robbery without committing first degree battery. In Foster the appellant did not raise the question of lesser included offenses pursuant to Ark. Stat. Ann. § 41-105. The issue raised by appellant Foster was that of double jeopardy. Although we held that aggravated robbery could be committed without committing first degree battery, we have an opposing situation before us here. In the present case the aggravated robbery is actually included in the proof required to sustain the charge of battery in the first degree.
Appellee relies heavily on the case of Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980); cert. denied, 450 U.S. 1043, However, no mention is made of Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982), wherein we granted Rule 37 relief and set aside one of the convictions in the first Rowe case. We agree with the appellee that the present case requires a decision in conformity with the Rowe cases. Since one offense was set aside in Rowe II, we do likewise in the present case.
We have reached the same result in a number of other cases including Swaite v. State, 272 Ark. 128, 612 S. W.2d 307 (1981) . In the case of Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982) , we addressed the issue by stating:
We affirm the conviction and sentence of capital felony murder but set aside the lesser included offenses of kidnapping and aggravated robbery in connection with offenses against Donald Lee Teague. Ark. Stat. Ann. § 41-105 (1) (a) and (2) (a) (Repl. 1977) prohibit the entry of a judgment of conviction on capital felony murder or attempted capital felony murder and the underlying specified felony or felonies.
The line of cases following Swaite and Hill holds that when a criminal offense by definition cannot be committed without the commission of an underlying offense, a conviction cannot be had for both offenses under Ark. Stat. Ann. § 41-105 (1) (a). Therefore, we set aside the conviction and penalty imposed for first degree battery and affirm the conviction and penalty for aggravated robbery.
Affirmed in part; reversed in part. | [
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Darrell Hickman, Justice.
This is an appeal by Marsha Moffitt, a teacher in the Batesville School District, from a decision of the Independence County Circuit Court upholding the school board’s termination of her contract. The issue on appeal is whether the school board had any cause to dismiss her according to the Teacher Fair Dismissal Act of 1979. Ark. Stat. Ann. §§ 80-1264 through 80-1264.10 (Repl. 1980).
I
Mrs. Moffitt had been a teacher in the Batesville School District for twelve years when she was terminated. She was a nonprobationary teacher whose contract could only be terminated for “any cause which is not arbitrary, capricious or discriminatory, or for violating the reasonable rules and regulations promulgated by the school board.” Ark. Stat. Ann. § 80-1264.9 (b). Chapman v. Hamburg Public Schools, 274 Ark. 391, 625 S.W.2d 477 (1981).
Mrs. Moffitt’s contract was renewed in March of 1981. However, she was informed in writing by the principal on May 15, 1981, that because of problems she had had during the school year he would take a serious look at any future recommendation to rehire her. A few days later the principal decided that Mrs. Moffitt violated two rules of the school district. She had destroyed the final examinations of her students and she had failed to turn in on time a list of students who had lost or damaged their books.
After final examinations, several parents complained when they learned their children had received lower grades in Mrs. Moffitt’s class. Then they found that the final examination papers had been thrown out and they could not find out why. Mrs. Moffitt claimed that she did not understand the rule to apply to spring semester finals because the students would not be back in class. Because of Mrs. Moffitt’s actions it was necessary to reconstruct the grades of certain students. Those who had a higher grade before the final examination were given the benefit of the doubt and the higher grade. Those whose grades were raised by the final examination were allowed to keep the final higher grade.
Regarding the books, a notice was sent to the teachers about their various duties during the last week of school, May 18th through May 21st. On the notice was the following sentence: “Don’t forget to turn in the following on the day assigned if possible.” Listed thereafter were various reports due and one of them was the report of damaged or lost books. The report of damaged books was due May 19th and evidently Mrs. Moffitt turned hers in on May 20th. It was the school’s policy to retain the report cards of students who had lost or damaged texts until they reimbursed the school for the books. When Mrs. Moffitt turned her list in, the report cards had already been mailed and it was necessary for the secretary to mail out to all of the students’ parents, some seventy in this instance, a notice of fines owed. According to the school secretary this cost the school district about $300.00. There was evidence that no teacher had ever turned in a list of seventy damaged or lost books and that rarely had the number exceeded five or six.
Consequently, the superintendent of schools informed Mrs Moffitt by letter that he would recommend to the school board that her contract for the next year be terminated. In that letter four reasons were given:
(1) Deficiencies in your job performance as evidenced by our 1980-81 evaluation form and failure to improve in these areas as evidenced by the numerous counseling forms that your principal and assistant principal have written up from their observations in your classroom and upon recommendations that they have made to you as to ways you might improve.
(2) The principal’s final recommendation that unless improvement in your job performance was evidenced in the 1981-82 school year it would be doubtful that he could recommend re-employment.
(3) Violation of Policy IHA in that you destroyed semester test exams before students or parents had a chance to review them.
(4) Failure to follow the principal’s directive in sending students who had lost or damaged books to the office for corrective action.
At Mrs. Moffitt’s request a hearing was held before the school board. Documentary evidence was introduced reflecting the problems Mrs. Moffitt had during the school year. First, a counseling form dated September 25,1980 indicating that Mrs. Moffitt was late to school every day was introduced. Her explanation was deemed satisfactory by the principal. Another counseling form signed in October by Charles E. Knox, the principal, noted a discipline problem with her students in class; he said they threw paper wads, showed disrespect toward other students giving reports, were loud and misused study time. On February 14, 1981, Danny Yeager, Jr., the vice-principal, observed her class and noted four matters of concern: Students had drinks in her class, were without text books, were talking, and were making casual remarks during class. Mrs. Moffitt’s annual teacher evaluation form, dated February, 1981, showed four areas in which she needed improvement. They were: (1) evidences careful planning and organization; (2) demonstrates effective instructional procedures and creative teaching techniques; (3) handles behavior problems and disruptions efficiently and unobtrusively; (4) is punctual and regular in attendance. Finally, a counseling form dated May 21, 1981, was introduced indicating she violated the two school policies. Mrs. Moffitt testified to the board that she was not aware she was required to keep final examination papers and that she turned the list of books in on time. The school board voted unanimously to terminate Mrs. Moffitt and the matter was appealed to the Independence County Circuit Court. Additional testimony was offered and the appellant argued that the violated rules were vague or unreasonable, but even if they were not, Mrs. Moffitt was discharged for arbitrary and capricious reasons. The trial court found otherwise and we affirm his decision.
The school board had an adequate basis on which to terminate Mrs. Moffitt’s contract. There is no doubt that she was on notice that the superintendent had recommended renewal of her contract with reservations, and just a few days after that it was learned that she had disposed of the final test papers, causing considerable concern to some students and parents. The grades were adjusted to pacify some parents because there was no way to satisfactorily prove the grades were fair and correct.
The examination rule in question reads:
All examination papers will be returned in class to the students and the examination discussed within one week after the examination is given. Students missing any part or parts of the questions will be shown why their answers are incorrect. Teachers may let the students retain the examination or may take them up and keep them in their files. It is recommended that the papers be filed for ready reference to any future discussion.
A fair reading of the rule leads to the conclusion Mrs. Moffitt should not have disposed of the tests.
The violation of the administration’s request to timely report lost or damaged books might, standing alone, seem trivial even though the secretary of the school testified it cost the district $300.00 to mail out notices to all the parents. But we do not have before us the question of an isolated instance of neglect of duty. Before us is the question of whether she was terminated for any cause which was not arbitrary, capricious or discriminatory, or for violating the reasonable rules and regulations of the school board. Other teachers testified that the rule about keeping examinations was clear to them and often reiterated by the administration. We find that neither of those school directives violated by Mrs. Moffitt is unreasonable or confusing.
It is argued the board’s reasons were arbitrary in that the two main reasons for her discharge, the destruction of the examination papers and the late book list, were not “just cause” for discharging a nonprobationary teacher.
The depositions of all the school board members were taken and they were asked specifically why they discharged Mrs. Moffitt. These depositions and other evidence were offered to the circuit court by both parties in what amounted to a retrial of the case. (Since neither party questioned this procedure, which may not have been the kind of review contemplated in the Teacher Fair Dismissal Act, we do not rule on its propriety.) The board members generally said they were aware of Mrs. Moffitt’s problems during the year when they decided to renew her contract, and she was terminated mainlyfor the two infractions. One member said she did so for the reasons contained in the superintendent’s letter of June 19, 1981. Another said he only considered the two infractions of the rule. Regardless, the question to the trial court was whether the school board terminated Mrs. Moffitt for a reason permitted by the Teacher Fair Dismissal Act. The judge found the board did have cause and our review is limited to deciding if the circuit court was clearly wrong. ARCP, Rule 52. It is not our function to substitute our judgment for the circuit court’s or the school board’s. Williams v. Marianna School District, 274 Ark. 539, 626 S.W.2d 361 (1982). We find no error.
Affirmed. | [
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Frank Holt, Justice.
These cases, which we consolidate, come to us on petitions for writs of prohibition. Petitioner Tucker Enterprises, Inc., is an Arkansas corporation with its place of business in Pulaski County, Arkansas. Petitioner Centurion Homes Corporation, which manufactures mobile homes, is a foreign corporation not qualified to do business in the State of Arkansas. The Lovettes, respondents, purchased from Tucker a mobile home manufactured by Centurion. Subsequently, the Lovettes filed a complaint against the petitioners in Van Burén Chancery Court, seeking a rescission of their contract and damages for breach of contract and warranties. Later, the Lovettes instituted an action against Tucker only in Pulaski Chancery Court seeking rescission and restitution. Tucker filed a third party complaint against Centurion. The Lovettes voluntarily dismissed these two actions with approval of the court but without written stipulation from the parties. Thereafter, the Lovettes instituted the present action in Van Burén Circuit Court against Tucker and Centurion seeking damages based upon the allegations of breach of contract and tort of misrepresentation. Petitioners filed motions to quash service of process and dismiss the actions alleging lack of venue and, further, that the two dismissals by the Lovettes operated as an adjudication on the merits according to ARCP, Rule 41. That rule provides that a second voluntary dismissal by the plaintiff of an action based upon or including the same claim as the previous action “operates as an adjudication on the merits.... unless all parties agree by written stipulation that such dismissal is without prejudice.” The respondent court denied the motions. Hence, these petitions for writs of prohibition.
Petitioners first argue that the two prior dismissals operated as an adjudication on the merits of the case, and thus writs of prohibition lie to prevent further litigation against them. It is well settled law in our state that when a trial court is proceeding in a matter where it is entirely without authority, the Supreme Court, in its exercise of supervisory control, has the authority to prevent the unauthorized proceeding by the issuance of a writ of prohibition. Monette Road Improvement District v. Dudley, 144 Ark. 169, 222 S.W. 59 (1920); and Springdale School District v. Jameson, Judge, 274 Ark. 78, 621 S.W.2d 860 (1981). However, the extraordinary writ of prohibition is never issued to prohibit a trial court from erroneously exercising its jurisdiction. Skinner v. Mayfield, 246 Ark. 741, 439 S.W.2d 651 (1969). Here, the petitioners’ argument that the two prior dismissals operate as an adj udication on the merits constitutes an attack, hot on the court’s authority in this action, but on the correctness of its ruling with respect to the defense of res judicata. However, it is not the office of the writ of prohibition to test the correctness of the trial court’s ruling on the defense of res judicata. Robinson v. Merritt, Judge, 229 Ark. 204, 314 S.W.2d 214 (1958). In Harris Distributors, Inc. v. Marlin, Judge, 220 Ark. 621, 249 S.W.2d 3 (1952), the writ of prohibition was sought because the defendant contended that liability had been discharged by a satisfaction of judgment. We denied the writ saying:
In substance its motion to dismiss asserts only that it has a defense to the plaintiffs’ cause of action. If prohibition may be used to test the sufficiency of a defense, there is no reason why it could not also be used to review the trial court’s action in overruling a demurrer to the complaint. Of course that is not the office of the writ. Petitioner’s question must be raised by appeal ....
The rule is well summarized in 63 Am. Jur. 2d, Prohibition, §33:
The fact that the defense of res judicata based on a decision in a former action is available in a second action involving the same issues does not deprive the court in which the second action is brought of j urisdiction to try the case again, so as to warrant the issuance of a writ of prohibition to prevent such court from proceeding with the suit, and the only remedy of the aggrieved party is to set up the res judicata plea as a defense in that suit and to appeal from an adverse decision therein.
To the same effect is Annot., 159A.L.R. 1283, p. 1293(1945).
Nevertheless, we do agree with the petitioner that the writs of prohibition should issue inasmuch as venue is not properly located in Van Buren County. The Lovettes argue that the proper place for venue is in the county of their residence, Van Burén County, pursuant to Ark. Stat. Ann. §§ 27-610 and 27-611 (Repl. 1979). We must disagree. Section 27-610 governs venue for actions for personal injury or death, which are not alleged here. Section 27-611 governs venue for actions asserting property damage due to force or violence, which also is not alleged. See Beatty v. Ponder, Circuit Judge, 278 Ark. 41, 642 S.W.2d 891 (1982). Here, the trial court ruled that since Centurion, a non-resident corporation subject to the long-arm statute, could be sued in Van Burén County, venue also would be proper over Tucker Enterprises, an Arkansas corporation with its principal place of business in Pulaski County. We rejected that argument in Ozark Supply Co. v. Glass, 261 Ark. 750, 552 S.W.2d 1 (1977), where we said:
We must disagree, however, with the appellant’s contention that ‘long-arm’ service on a non-resident of this state is sufficient to fix venue so as to permit the ‘dragging’ of a resident from one county to another to defend that action.
Venue in this case is governed by § 27-613 which provides: “Every other action may be brought in any county in which the defendant, or one of several defendants, resides, or is summoned.” Neither defendant resides or was summoned in Van Burén County. Venue in this case properly is in Pulaski County, where Tucker Enterprises has its principal place of business. This section is applicable to corporations. See International Harvester Co. v. Brown, 241 Ark. 452, 408 S.W.2d 504 (1966).
Additionally, Centurion Homes, which was served in Texas pursuant to our long-arm statute (Ark. Stat. Ann. § 27-2502 [Repl. 1979]), argues that a writ of prohibition should issue as to it because it does not have sufficient contacts with Arkansas to be subject to the jurisdiction of Arkansas courts. In the very recent case of Wise. Brick & Block Corp. v. Cole, Judge, 274 Ark. 121, 622 S.W.2d 192 (1981), we said:
Whether the “minimum contacts” test has been satisfied is a question of fact. In cases where jurisdiction depends upon the establishment of facts, the issue of jurisdiction must be decided by the trial court, and even if that decision should be wrong, we correct that error on appeal and not on prohibition. Robinson v. Means, Judge, 192 Ark. 816, 95 S.W.2d 98 (1936).
Writs granted.
Hickman, J., concurs. | [
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MiNOR W. Millwee, Justice.
Appellee, W. M. Holder, is a building contractor and appellants, John W. Harris, W. Bradley Trimble, and W. B. Justiss, are partners doing business as Justiss Motor Company. On May 12, 1948, appellee contracted to construct a Quonset steel garage bnilding for appellants in El Dorado, Arkansas. El Dorado Lumber Co. sold appellants the steel to be used in construction of the bnilding. Appellee was to furnish the labor, certain materials and construct the building for $4,446.
The Justiss Motor Co. moved into the building the latter part of July, 1948. On September 17,1948, appellee filed this suit alleging due performance of the contract, the payment by appellants of only $1,500 of the contract price, and prayed judgment for the balance together with damages to his reputation and credit.
Appellants’ answer and cross-complaint denied that the building was completed according to the contract and particularly alleged breach of the contract in construction of the concrete floor which was alleged to be defective and unusable for the purposes intended. Appellants prayed damages on the cross-complaint against appel-lee and the surety on the performance and labor and material payment bonds executed by appellee.
A suit previously filed against appellee by certain materialmen was consolidated with the instant suit and judgments sustaining liens in favor of said materialmen were entered under a stipulation of all the parties.
After an extensive hearing the trial court found that the concrete floor was defective, but that such condition resulted from appellants’ interference with appellee in the manner and method of doing the work. A decree was entered in favor of appellee for the balance found due under the contract after discharge of the judgments entered in favor of the materialmen. Appellants’ cross-complaint was dismissed for want of equity and they have appealed.
In reference to the construction of the 6,000-foot floor the contract provides that appellee shall fqrnish: “All materials and labor for 6" floor of 2,000 lbs. concrete, reinforced with 6" x 6" x 10-gauge steel in slabs 20 ft. x 20 ft., reinforcing mesh to be broken at all expansion joints and joints cleaned and filled with either mastic or formed expansion strips; all slabs to be floated and finished in a workmanlike manner and all details to be strictly adhered to.” While a great deal of testimony was directed to the condition of the concrete floor, it is undisputed that it was defective and not finished in a workmanlike manner as required by the contract. Expert and lay witnesses on both sides testified that the floor was rough, uneven, or out of level in many places, and that the topping was soft, pitted, flaky and crumbly.
In his testimony appellee first denied but later admitted that the floor was defective and offered a variety of reasons therefor. He stated that the building site was moved back 50 feet from the original level location called for in the contract to a place where there was a three-foot fill which he was required to ‘ ‘ cat-pack. ’ ’ The written contract recites that the building was to be located at 1200 West Hillsboro Street, but does not otherwise designate the building site. Appellee apparently acquiesced in the change of building sites, if made, and the preponderance of the evidence fails to disclose that the defective condition of the floor resulted from such change.
The contract also provided for erection of the building “according to blueprints furnished by El Dorado Lumber Co. subject to changes as directed by engineer approved by El Dorado Lumber Company.” Edward Bader was sent to El Dorado by the manufacturer of the steel furnished by El Dorado Lumber Co. and was employed by the latter as the engineer designated in the contract. The evidence on behalf of appellants is that they knew nothing about concrete construction and made no attempt to supervise appellee or his employees in the construction of the concrete floor. Appellee stated that both Bader and Justiss supervised the laying of the floor and that Harris and Bader directed appellee to pour concrete on ground that was too soft and wet.
The preponderance of the evidence was to the effect that it is not an improper practice to pour concrete on wet ground in hot weather, but that the use of too much, water might cause the concrete slab to crack or sink. According to the greater weight of the evidence the slab base of the floor in controversy did not crack or sink and the defects in the floor resulted from the manner in which the topping or surface was laid and finished.
There was evidence that the soft and flaky condition of the topping was caused by allowing it to dry while unprotected and uncovered from the hot sun. Appellee stated that such condition might have been caused by leaving the floor uncovered, but asserted that appellants failed to furnish material for that purpose. Appellants were not required to furnish such covering either under the contract or local custom. Several contractors testified that dirt, which was available to appellee, furnished the best covering and was used generally by them for that purpose.
Another reason assigned by appellee for the defective condition of the floor was that appellants and Bader ordered delivery of the mixed concrete too rapidly and before appellee was ready for it to be poured. The mixed concrete was purchased by appellee from Gilliam Bros. Appellants’ denial that they ordered the concrete is corroborated by the representative who handled the orders for Gilliam Bros. He testified that appellee ordered the concrete sent out and all the delivery tickets were shown to have been signed by appellee. While appellee stated that he told the truck drivers to slow down the delivery, there is no showing that he made any complaint to the representative who handled the orders.
Appellee also claimed that appellant Justiss interfered by allowing water to run all night on the fresh concrete floor. His testimony on this point is somewhat contradictory. Although he testified that he directed Justiss to sprinkle the concrete at night, he stated that it constituted a bad practice when the floor was unprotected from the sun. He also testified that Justiss continued to run too much water on the floor after being warned not to do so, but this was stoutly denied by appellants’ witnesses.
Appellee and his employees stated generally that Bader supervised and directed the construction of the floor but they were unable to name specific orders which contributed to the defective conditions found. Bader directed the use of extra steel in the curb walls and larger expansion joints in the floor, but neither of these changes had anything to ■ do with the defects in the floor and appellee apparently concurred in the changes which were authorized under the contract.
The contract stipulated that the 20' x 20' slabs should be “floated and finished in a workmanlike manner.” According to the evidence there are two types of finish — ■ a “wood float” finish and a “steel trowel” finish. Either finish will produce a smooth surface, but a steel trowel finish produces a harder surface and requires more time. Ed Moore, the only finisher on the job, testified that he was putting a wood float finish on one of the first slabs when Justiss told him he didn’t like it and wanted it steel finished; that appellee refused to agree to a steel finish, but witness disregarded the wishes of his employer and followed the instructions of Justiss; and that a bad finish resulted because they were laying too much concrete per day. Bader corroborated Moore as to the direction by Justiss that a steel trowel be used, but stated that appellee ordered Moore to use the steel trowel in compliance with the suggestion of Justiss. Although ap-pellee stated that he told Justiss he would not pay Moore for a “slick finish,” he admitted that he told Moore to do what Justiss requested in connection with the finishing of the floor. It thus appears that appellee acquiesced in the method of finishing suggested by Justiss.
It is undisputed that Moore was a good finisher, but the greater weight of the evidence discloses that he was trying to finish more concrete (1,200 feet) per day than could be done in a workmanlike manner regardless of the type of finish used. Pat Riley, an experienced contractor and witness for appellee, examined the floor and, after listening to the testimony of Moore, testified: “Q. What was the trouble out there? A. I think it was too much work for one finisher.”
W. M. Bearden, another contractor, testified on behalf of appellee as follows: “Q. How many feet can a man trowel in a day? A. 500 feet, and that is all he can. Q. How many feet can a man float finish with wood? A. A thousand feet. Q. Did yon hear some witness testify that they were trying to float 1,200 feet? A. Then they got what they have out there. It is pretty expensive' to try to do it that way. It can’t he done. . . .” Other contractors stated that one finisher could only finish from 300 to 750 feet per day, particularly in hot weather. Bader testified that appellee repeatedly stated that he was going to employ more finishers.
It is elementary that there is no breach of a contract where performance is prevented, or rendered impossible, by the conduct of the other party. Townes v. Oklahoma Mill Co., 85 Ark. 596, 109 S. W. 548. It is also generally recognized that a defective performance of a building contract is excused where it is due to the acts of the owner or his representative, tinless the contractor has not offered a substantial compliance with the contract. 17 C. J. S., Contracts, § 46 (a). See, also, 9 Am. Jnr., Building and Construction Contracts, § 45.
We conclude that the preponderance of the evidence does not show that the defective condition of the floor was occasioned by interference on the part of the appellants, but was^ primarily due to the failure of appellee to furnish a sufficient number of finishers and to properly cover and protect the freshly laid floor from the sun. The greater weight of the testimony also warrants the conclusion that appellee acquiesced in any changes and suggestions made by appellants and Bader in the construction of the floor.
There was considerable conflict in the testimony as to whether appellants accepted the work of appellee when they moved into the building, but a determination of this question is immaterial under the rule which this court has adopted. In Fitzgerald v. La Porte, 64 Ark. 34, 40 S. W. 261, it was held: “Where work has been done substantially in compliance with the terms of a contract, or there has been an acceptance of the work by the contractee, the contractor may, notwithstanding defects therein, recover the contract price, less the cost of correcting such defects.”
In Roseburr v. McDaniel, 147 Ark. 203, 227 S. W. 397, the court said: “The rule established by decisions of this court is that where a building contract is substantially performed, even though there are omissions and deviations therefrom, if such defects do not impair the structure as a whole and are remediable 'without doing material damage to other parts of the building in tearing down and reconstructing, and may without injustice be compensated by deductions from the contract price, ’ there may be a recovery for the amount found due after making such deductions.”
In Hollingsworth v. Leachville Special School District, 157 Ark. 430, 249 S. W. 24, we held that where defects are remediable without taking down and reconstructing any substantial portion of the building, the amount of deduction from the contract price to which the owner is entitled is the expense of making the work conform to contract requirements. This is in accord with the general rule stated in 9 Am. Jur., Building and Construction Contracts, §§ 43 and 152.
There is considerable variance in the testimony as to the expense necessary to correct the defects in the floor. The evidence is also conflicting as to the number of slabs that were defective. Two contractors submitted bids to appellants in the amounts of $2,580 and $2,500, respectively, for placing a four-inch concrete floor on top of the present floor. Thejr considered this the appropriate way to correct the defects. These bids were based on the use of “3,000 lbs.” concrete and a steel trowel finish. Another contractor who testified on behalf of appellants gave an estimate of $2,750 for a four-inch floor. He stated that a three-inch layer of concrete could be used with a patented “ceiling,” but he did not figure the cost of the three-inch floor. One witness experienced in concrete work stated that a four-inch top floor would cost $1,300 excluding overhead and profit. He thought a two-inch top might suffice after use of an air hammer oil tlie old floor. Another contractor stated that it would take $1,800 or $1,900 to remedy the floor while appellee stated that it could be done at a cost of $500. There was other evidence that a 3-inch top floor would be sufficient.
We hold that appellants are entitled to damages for appellee’s failure to properly construct the concrete floor in the sum of $1,500 which amount, together with the amount of judgments in favor of the materialmen, appellants are entitled to offset against the balance due on the contract price. Appellants are also entitled to judgment against appellee and the surety on his performance and material and labor payment bonds for any excess due after proper credit is allowed for the balance due on the contract price. The decree is, therefore, reversed and the cause remanded with directions to enter a decree in accordance with this opinion. | [
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Kirby, J.,
(after stating the facts). Appellant insists that the drilling contract constituted a partnership between Olvey and Clark, and that he was entitled to recover the costs of making the abstracts against the partnership and Olvey as a member thereof, and that the court erred in not so holding under the authority of Stephens v. Neeley, 161 Ark. 114, 255 S. W. 562, 45 A. L. R. 1236, and the tests as prescribed in 20 R. C. L. 823-33.
The intention of the parties is to be arrived at from their contract entered into for the drilling of the test well, and there appears to be no ambiguity about it. The leases were held by Clark, the party of the first part, and he was bound as a consideration for their procurement’ to have the test well drilled upon the block of acreage acquired by lease. He had already had certain abstracts of title made by appellant, and, after the drilling contract was entered into, he only directed that others be made, it being conceded by appellant that no directions were given him about the making of abstracts or suggestions for payment therefor by . Olvey, nor were any of the abstracts delivered to Olvey. It is obvious from the terms of the contract that it was the intention of the parties only to have the test well drilled, which was to be done at the actual cost of the party of the second part, the contract providing how the money should be realized to pay therefor by the selling of the leases by Clark or by Olvey in the event of Clark’s failure to procure sufficient money to pay the expenses as the drilling progressed. It was not contemplated by the parties, nor provided in the contract that drilling' operations would be continued and oil produced after the test well was finished, in case it should be a producer, without further agreement, the second party only being given an option of drilling any additional wells on the 80-acre tract at the then prevailing prices for drilling wells. In other words, the parties did not contemplate a partnership in the making of the contract or any further oil development after the test well came in a producer under the terms of the contract, which provided, in effect, as the lower’ court correctly held, but a means of compensation or method of payment to appellee Olvev for drilling the test well. Stone v. Riggs, 163 Ark. 211, 259 S. W. 412 ; Mehaffy v. Wilson, 138 Ark. 281, 211 S. W. 148.
The letter from Olvey to Clark, reciting- that the costs of abstracts and other expenses incident to clearing- the - titles “should be considered a part of the costs incident to the drilling of said well and may be paid out of funds raised to defray the costs of drilling,” expressly recited that “no charge is to be made for any services rendered in connection with the work on titles to any of the lands included in the block of acreage covered by said contract.” This expressly negatives any inference of liability for abstracts made to the lands included in the block of acreage contracted about where the test well was to be drilled and, although it recites that there was an agreement between these parties that the costs of certain abstracts should be considered a part of the costs incident to the drilling of the test well that could be paid out of the funds raised to defray the costs therefor, it was not made to nor with appellant or for his benefit, and, in addition, there were no funds on hand raised as provided out of which this cost could be paid, and, there being no partnership, appellant was not entitled to recover such costs against appellee, Olvey, herein.
We find no error in the record, and the judgment is affirmed. | [
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Richard B. Adkisson, Chief Justice.
Petitioner, Oklahoma Gas and Electric Company (OG&E), seeks to prohibit the Sebastian County Circuit Court from exercising jurisdiction over a class action suit for declaratory judgment filed by respondents, customers and ratepayers of petitioner. Respondents requested that that part of Ark. Stat. Ann. § 73-217(Repl. 1979andSupp. 1981) which allows a utility to collect a requested rate increase under bond be held unconstitutional; that Article 19, Section 13 of the Arkansas Constitution be held not to limit the amount of interest paid to customers on a refund; and that other ancillary relief be awarded. OG&E filed a motion to dismiss, which the trial court denied; this petition for a writ of prohibition followed.
In its petition OG&E argues that the respondents’ contentions should have been presented before the Arkansas Public Service Commission (PSC) rather than the circuit court because the PSC has exclusive jurisdiction over matters pertaining to utility rates. We agree and grant the writ of prohibition.
The facts of the case are not in dispute. On May 18,1980, OG&E filed a notice with the PSC requesting a 17.8 million dollar rate increase. On October 20, 1980, prior to approval of the requested rate increase, OG&E began collecting the increase under bond, a practice authorized by Ark. Stat. Ann. § 73-217. By orders of May 18 and July 20, 1981, the PSC approved a rate increase of 11.9 million dollars and ordered OG&E to refund, with ten percent interest, the difference between the amount approved and the 17.8 million dollar rate being collected. Respondents did not seek to intervene or request a hearing before the PSC but, later, on August 11, 1981, filed an original complaint in circuit court.
We have considered the question of the trial court’s jurisdiction in several utility rate cases which are controlling in this instance. In McGehee v. Mid South Gas Co., 235 Ark. 50, 357 S.W.2d 282 (1962) McGehee, a stockholder in Mid South Gas Company, filed a complaint in chancery court attacking the validity of a merger agreement between Mid South and Arkansas Louisiana Gas Company. Mid South moved to dismiss the chancery court case on the ground that the same questions between the same parties were then pending before the PSC. McGehee answered, claiming that the PSC was without jurisdiction to determine the issues raised by the stockholders’ suit. The chancery court dismissed the complaint and this court affirmed, holding that McGehee’s remedy before the PSC was full, adequate, and complete and, therefore, the chancery court correctly declined to exercise jurisdiction.
In Commercial Printing Co. Inc. v. Ark. Power & Light Co. & Ark. Public Ser. Comm., 250 Ark. 461, 466 S.W.2d 261 (1971) the PSC entered a rate order which permitted a utility company to charge a penalty for late payments. No consumer intervenors appealed the PSC order to circuit court within the allotted time, but later Commercial Printing filed an original action in the circuit court alleging that the PSC’s order was void because the penalty was discriminatory and usurious. The trial court dismissed, and we affirmed, following our holding in McGehee, supra.
Then, in General Telephone Co. v. Lowe, 263 Ark. 727, 569 S.W.2d 71 (1978) the PSC allowed General Telephone to raise its rates in Texarkana, Arkansas, contrary to a franchise agreement between General Telephone and the City of Texarkana, Arkansas. A class action suit was filed in the chancery court to prohibit the enforcement of the rate increase, thereby bypassing an intervention before the PSC. The chancellor decided the case on the merits. On appeal this court held that a court of equity does not have concurrent jurisdiction with the PSC in public utility litigation when there is a clear, adequate, and complete remedy by an application to the PSC.
Here, under McGehee, Commercial Printing, and Lowe, respondents had a full, adequate, and complete remedy by intervention in the proceedings before the PSC. At that time the PSC could have ruled on the constitutionality of Ark. Stat. Ann. § 73-217 and the other issues which respondents are now raising. The PSC, in exercising its exclusive jurisdiction over rate setting, can also pass upon questions of law that are germane and incidental to its legislative acts. General Telephone Co. v. Lowe, supra.
Writ of prohibition granted. | [
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Darrell Hickman, Justice.
Potlatch Corporation and others filed suit to set aside a tax deed to certain mineral interests in Pike County. The chancellor held the deed was void because the mineral interests, which were listed separately in the assessments books from the fee or surface interests, were not “subjoined” as the law and our decisions require. We agree and affirm.
In a line of cases we have held that when a tax deed to mineral interests derives from a defective assessment it is void. Adams v. Bruder, 275 Ark. 19, 627 S.W.2d 12 (1982); Stienbarger v. Keever, 219 Ark. 411, 242 S.W.2d 713 (1951); Sorkin v. Myers, 216 Ark. 908, 227 S.W.2d 958 (1950). See 12 Ark. L. Rev. 338, O. B. Core, Tax Forfeiture Problems in the Examination of Abstracts. Those cases all hold that when a separate assessment is made for mineral interests, the assessment must be “subjoined” to the fee assessment. The appellant argues the assessment was subjoined in this case, or at least that our holdings in those cases are distinguishable.
Subjoined means to add at the end, to append, to place in sequence or juxtaposition. THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1415 (Unabridged ed. 1967).
In Sorkin v. Myers, supra, and Steinbarger v. Keever, supra, the severed mineral interests were listed in a separate book from the fee assessments. In Adams v. Bruder, supra, the mineral interests were listed at random in a separate section of the tax books. In each case we held the assessments were improper because the mineral assessments were not subjoined.
In Pike County the separate mineral assessments were listed in one section following the fee assessments. The appellant argues they were listed in the same book, easy to find, and consisted of only about one hundred separate assessments. In Sorkin, a separate book was used and over 4,000 different assessments were listed.
But the question is whether the separate mineral assessments were subjoined to the fee assessments, and we hold they were not. The separate assessments must be listed individually immediately after each respective fee or surface interest. That is the only way a fee holder or any interested person can readily and certainly determine the state of taxes on mineral interests that lie under the tract.
The appellant, in addition, argues that her tax deed that she obtained in 1956 gave her color of title and because she has paid taxes since, she had gained title under Ark. Stat. Ann. § 37-102 (Repl. 1962). She argues that she has also gained color of title by paying taxes on the mineral interests for over fifteen years. Ark. Stat. Ann. § 37-103. This court has held that those statutes refer only to wild, unenclosed land and, therefore, only to the surface rights. Brizzolara v. Powell, 214 Ark. 870, 218 S.W.2d 728 (1949).
The statute of limitations did not begin to run against the appellees because appellant never took actual possession of the minerals by opening and operating mines as required to claim adverse possession of mineral rights. Adams v. Bruder, supra; Claybrooke v. Barnes, 180 Ark. 678, 22 S.W.2d 390 (1929).
The appellant claims that since the appellees did not respond to her defenses of laches, estoppel and abandonment they should be taken as admitted. Those are defenses. No response to such averments is required by the Arkansas Rules of Civil Procedure. See ARCP, Rules 7 and 8 (d). Although the chancellor did not specifically address the estoppel issue, we do not find that appellant was precluded from offering evidence on the issue. Here, appellant was relying on a defective tax deed and had not taken actual possession of the minerals. We have reviewed the case de novo and we find no merit to the defenses asserted under the facts presented. See Adams v. Bruder, supra.
Affirmed. | [
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Per Curiam.
The petitioner Darrell Wayne Hill was convicted of the capital murder of Donald Lee Teague and the attempted capital murder of E. L. Ward. He was sentenced respectively to death and life imprisonment for the two crimes. He was also found guilty of kidnapping and aggravated robbery in connection with the offense against Teague and kidnapping and aggravated robbery in connection with the offense against Ward. On appeal we affirmed the convictions for the offenses against Ward and the capital murder of Teague. We set aside the conviction for the lesser included offenses of kidnapping and aggravated robbery committed against Teague. Hill v. State, 275 Ark. 71, 628 S. W.2d 284 (1982). The United States Supreme Court denied petitioner’s petition for writ of certiorari on October 4,1982. Petitioner has filed a petition and an amended petition for postconviction relief under A.R.Cr.P. Rule 37.
I
Petitioner alleges that the Arkansas death penalty statute impermissibly penalizes petitioner’s exercise of his right to plead not guilty and to have a jury trial because only the jury may impose the death penalty, thus creating a situation whereby a defendant can be assured of escaping execution only by waiving his right to trial by jury. When this same argument was advanced in another capital case, we held that Ark. Stat. Ann. §§ 41-1301 — 1304 (Repl. 1977), which set forth the procedures governing jury trials for persons charged with capital murder, do not place an impermissible burden on the exercise of the constitutional right to trial by jury. Ruiz and Denton v. State, 275 Ark. 410, 630 S.W.2d 44 (1982), cert. denied,_U.S__(1982). § 41-1302 provides that the jury shall impose a sentence of death if it returns certain written findings, but the trial judge is not required to impose the death penalty in every case in which the j ury verdict prescribes it. Ruiz and Denton, supra, citing Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), cert. denied, 434 U.S. 977 (1977). The death penalty under Arkansas statutes has been consistently held constitutional. Hulsey v. State, 261 Ark. 449, 549 S.W.2d 73 (1977); Neal v. State, 261 Ark. 336, 548 S.W.2d 135 (1977); Collins, supra.
II
Petitioner asserts that the exclusion for cause of the veniremen with conscientious objections to the death penalty without a determination that their objections would preclude their finding petitioner guilty denied him his right to an impartial jury and to a jury that was representative of the community. The “death qualified” jury was approved by the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510 (1968). Since Witherspoon, we have approved the procedure. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982); Ruiz and Denton v. State, 265 Ark. 875, 582 S.W.2d 915 (1979); Collins, supra; Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979). Petitioner presents no new challenges to it.
Ill
On appeal, petitioner’s convictions for the kidnapping and aggravated robbery of Teague were set aside because they were lesser included offenses to the crime of capital murder. This was done despite the fact that no objection to the sentences was raised in the trial court because we will consider in a death case such errors argued for the first time on appeal. We declined to disturb the convictions for the lesser included offenses against Ward because petitioner was not sentenced to death for those crimes. He now asks that those sentences be set aside also, citing as precedent our decisions in Rowe v. State, 275 Ark. 37, 627 S.W.2d 16(1982) and Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1982).
This Court has held that when a criminal offense by definition includes a lesser offense, a conviction cannot be had for both offenses under Ark. Stat. Ann. § 41-105 (1) (a) (Repl. 1977), Wilson, supra; Rowe, supra, Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981); Simpson v. State, 274 Ark. 188, 623 S. W.2d 200 (1981); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). The statute provides:
(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense, if:
(a) One offense is included in the other as defined in subsection (2);
(2) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or
(b) it consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
(c) it differs from the offense charged only in the respect that a less serious risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.
In petitioner’s case, it was necessary to prove the elements of aggravated robbery and kidnapping to prove the elements of attempted capital murder. In light of our holdings in regard to Ark. Stat. Ann. § 41-105 (1) (a) in Rowe, Wilson, Singleton, Simpson, and Swaite, we find that the conviction and sentence imposed on petitioner for aggravated robbery and kidnapping should be set aside. The conviction and sentence for attempted capital murder are not disturbed.
IV
Petitioner states that over his objection the trial court admitted evidence of at least five prior convictions for the purposes of enhancement of his sentence, when the amended information only alleged four prior convictions. He does not give a transcript reference to where the objection can be found in the record, and the state contends that no such objection was made. This Court will not search the record page-by-page to determine the accuracy or inaccuracy of petitioner’s assertion. Counsel for petitioners seeking post-conviction relief are cautioned to provide the Court with transcript references in support of allegations that require specific verification in the record. In any event, the issue was not raised on appeal. In this Court, issues which were not raised in accordance with controlling rules of procedure must be considered waived. Ruiz and Denton, supra. See also Moore v. Illinois, 408 U.S. 786 (1972); Stembridge v. Georgia, 343 U.S. 541 (1952); Hulsey, supra; Williams v. Edmondson, 257 Ark. 837, 520 S.W.2d 260 (1975); Orman v. Bishop, 245 Ark. 887, 435 S.W.2d 440 (1968).
V
In the penalty phase of the trial, the jury was presented with proof of an aggravating circumstance that petitioner had been convicted of first degree robbery and robbery with a firearm in Missouri and Oklahoma. Petitioner now argues that since no details of the crimes were provided, the jury could only speculate that the crimes involved a threat or risk of violence and thus were proof of an aggravating circumstance as required by Ark. Stat. Ann. § 41-1303 (Repl. 1977). The statute provides in part:
Aggravating’ circumstances. — Aggravating circumstances shall be limited to the following:
(3) the person previously committed another felony an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person; . . .
There is no requirement that the State try the prior felony convictions a second time or that it present evidence that an out-of-state conviction for robbery had as an element the use or threat of violence. Furthermore, inherent in the definition of “robbery” is a threat of violence. Also, the issue was not raised on appeal and was therefore waived.
VI
Petitioner alleges that the trial court unconstitutionally commented on the evidence when it instructed the jury that it could consider only the two prior robbery convictions as aggravating circumstances; Petitioner argues that this amounted to instructing the jury to accept the convictions as an aggravating circumstance. We find that the record does not support the allegation. The record shows that the court in accordance with AMCI instructed the jury that it could consider the convictions and that the jury was responsible for determining if the State had met its burden of proving beyond a reasonable doubt that one or more of the aggravating circumstances existed.
VII
Petitioner states that a motion was filed to sever offenses, but he does not tell us where it appears in the record and the issue was not raised on appeal.
A.R.Cr.P. Rule 22.2 provides:
(a) Whenever two (2) or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not a part of a single scheme or plan, the defendant shall have a right to a severance of the offenses.
Petitioner contends that the denial of the motion was denial of his right to due process of law because (1) the State was allowed to. obtain convictions for four lesser included offenses in violation of Ark. Stat. Ann. § 41-105 (1) (a) (2) (a) (Repl. 1977); (2) the State was allowed to seek enhancement of punishment on five prior convictions when only the two prior robbery convictions were admissible as an aggravating circumstance; and (3) the State improperly argued petitioner’s criminal record as a basis for the death sentence.
As this Court found on direct appeal, the trial court instructed the jury that it was to consider only the two robbery convictions as an aggravating circumstance. The other three convictions were to be considered only for enhancement purposes on the non-capital crimes. Hill, supra at 87-88. Petitioner concedes that the trial judge also explained this to the jury. The jury was properly instructed on its consideration of petitioner’s prior crimes. The mere fact that the jury entered a finding of guilt on the lesser included offenses and was aware of five prior convictions does not in itself demonstrate prejudice. We also find no grounds for relief in petitioner’s allegation that the State improperly raised his criminal record. There was no objection to the State’s negating the mitigating circumstance that petitioner had no significant history of prior criminal activity. When an issue is not raised on direct appeal, as the issue of severance was not, the issue cannot be raised under Rule 37 unless the question is so fundamental as to render the judgment void and open to collateral attack. Neal, supra. Even questions of constitutional dimension are waived if not raised in accordance with the controlling rules of procedure. Collins, supra; Hulsey, supra. We find nothing in this petition that would render the judgment in petitioner’s case void.
VIII
Petitioner next asserts that the Arkansas death penalty statute is unconstitutional because capital felony mxirder and first degree murder are not distinguishable. This Court has rejected the argument raised by petitioner in several cases. Ford, supra; Wilson, supra; Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980).
IX
Petitioner alleges ineffective assistance of counsel in the penalty phase of trial. He contends that counsel failed to secure available mitigating evidence. He alleges that petitioner’s records from the Vinita State Hospital in Oklahoma would have shown that antipsychotic medication had recently been prescribed for him and that the Oklahoma hospital’s diagnosis conflicted with the Arkansas State Hospital’s diagnosis. He also contends that Herbert Callison and Edna Staudinger would have testified if called to mitigating factors such as petitioner’s work with juvenile delinquents. He further asserts that counsel cut short his examination of witness Nixon without inquiring into petitioner’s history of drug abuse and his unhappy childhood. Petitioner contends that petitioner could also have testified to these things but counsel inexplicably failed to call him.
A psychologist, who testified at length for the defense, mentioned that the results of his testing of petitioner were consistent with the conclusions of the Oklahoma hospital. It appears therefore that the Oklahoma records were used by the defense. Moreover, petitioner has not shown that his psychologist was not allowed to testify to any pertinent information.
There is a presumption of effective assistance of counsel. To overcome that presumption, a petitioner must show by clear and convincing evidence that the prejudice which resulted from the representation of trial counsel was such that he did not receive a fair trial. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184(1981). Petitioner has not shown that he was denied a fair trial by counsel’s failure to call any particular witness, including him, or his failure to question Nixon further. The calling of witnesses in a criminal trial is a matter which is normally within the realm of j udgment of counsel. Swindlerv. State, 272 Ark. 340, 617 S.W.2d 1 (1981), citing Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973). Likewise, questioning witnesses is ordinarily a matter of trial strategy about which advocates could disagree. Trial tactics, even if they prove unsuccessful, are not grounds for postconviction relief. Leasure, supra.
X
The aggravating circumstance that the murder was committed to avoid arrest or to effect escape from custody was submitted to the jury. Petitioner contends that the circumstance is vague and overbroad. We do not accept petitioner’s argument. Under the facts of the case the jury was justified in finding that petitioner shot Teague and Ward to increase his chances of avoiding arrest after he had robbed Ward’s service station. This same attack on the aggravating circumstance as being overbroad has also been rejected by the United States District Court. Pickens v. Lockhart, 542 F. Supp. 585 (E.D. Ark. 1982).
XI
Petitioner alleges that the jury arbitrarily and capriciously failed to consider mitigating evidence of petitioner’s mental disturbance and diminished capacity. Petitioner offers no support for the conclusory allegation, and we will not assume from the fact that petitioner was sentenced to death that the jury failed to consider all the evidence.
XII
In its closing argument the State sought to negate the mitigating circumstance, Ark. Stat. Ann. § 41-1304 (6) (Repl. 1977), that the defendant had no significant history of prior criminal activity by calling attention to petitioner’s extensive criminal record. Petitioner alleges that a criminal record is not a statutory aggravating circumstance and should not have been mentioned. This allegation was also raised in Point VII and found meritless. The jury was properly instructed as to aggravating and mitigating circumstances. No objection was made at trial and petitioner has not shown how he was prejudiced.
XIII
Petitioner contends that Ark. Stat. Ann. § 41-1302 (Repl. 1977), which sets out the findings required for a death sentence, is unconstitutional. There is no ambiguity in our statute. The statute clearly states that the aggravating circumstances must outweigh all mitigating circumstances beyond a reasonable doubt; and that after such consideration, the jury must find that the aggravating circumstances justify a sentence of death beyond a reasonable doubt. Even then, the trial judge is not required to impose the death penalty. The statute was not challenged at trial and petitioner cites no persuasive authority for his contention.
XIV
On appeal from a sentence of death, it is the practice of this Court to compare the sentence with sentences in other cases in which the death penalty was imposed. Collins, supra. Petitioner argues that in his case no comparative review was required or afforded by this Court, apparently because the opinion does not specifically state that it was.
While there is no absolute requirement under federal law that this Court make a comparative review of a death sentence, we have consistently afforded such a review since Collins, although our opinions do not so state in all cases.
XV
Finally, petitioner again challenges the constitutionality of the death penalty as it is imposed in Arkansas. The assertion is conclusory and does not warrant further discussion. Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982); Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978); Stone v. State, 254 Ark. 566, 494 S.W.2d 715 (1973); Cooper v. State, 249 Ark. 812, 461 S.W.2d 933 (1971).
XVI
In a thorough review of petitioner’s allegations, we find no constitutional error that would render the judgment void or evidence of ineffective assistance of counsel. Petitioner has fallen far short of making a showing that his trial was not fair or that the sentence was not properly imposed.
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Per Curiam.
The petitioner was convicted on May 27,1988, after his suspended sentence was revoked due to his possession of cocaine and drug paraphernalia. His notice of appeal was filed on June 27,1988. The record was tendered to the clerk’s office after the ninety day time limit had lapsed. See Ark. R. App. P. 5(a).
The petitioner filed a motion for rule on the clerk to compel the clerk’s office to accept the record. In his motion, it is contended that the petitioner’s mother called and inquired about the transcript after the notice of appeal was filed. The court reporter remembered telling her the cost of the transcript, but he did not treat the inquiry as a request for a transcript. The petitioner’s attorney waited until the day before the ninety day time period for filing the transcript expired to call and check on the transcript. The court reporter returned his call the next day and told him that he was not aware of a request for the transcript and therefore no extension was requested.
This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part but instead implies that there was a misunderstanding on the part of the court clerk. We have held that a statement that it was someone eise’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, the petitioner’s motion must be denied.
If the appellant’s attorney files a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, then the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.
Purtle, J., would grant. | [
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Donald L. Corbin, Justice.
Barbara Box appeals from a divorce decree and judgment entered by the Pulaski Chancery Court. She asserts only one point of error. John T. Box cross-appeals, asserting two points of error. As all assignments of error concern the classification and division of property, resolution of this appeal requires our interpretation of our division of property statute, Ark. Code Ann. § 9-12-315 (Supp. 1991). Our jurisdiction is pursuant to Ark. Sup. Ct. R. 29(l)(c). We reverse and remand on direct appeal and affirm on cross-appeal.
The parties married on March 25,1983. They separated on May 22, 1990, and appellant filed for divorce on May 9, 1991. Appellee counterclaimed for divorce on July 2, 1991.
The evidence presented at trial reveals that, prior to the parties’ marriage, appellee had acquired two parcels of real estate. He owned a 100-acre farm in Romance, Arkansas. Purchase-money mortgage payments on the farm are $ 190.83 per month. He also owned a 38-acre homestead in Jacksonville, Arkansas, which was given to him free of any debt by his parents. In September 1980, the homestead was mortgaged for $30,000.00, to be paid over 120 months at $465.90 per month. On the date the parties married, appellee owed $27,638.78 on this mortgage; during the marriage, the $27,638.78 balance on the mortgage was paid in full. Appellee stated that he borrowed the $30,000.00 to pay the property settlement in his prior marriage. In June 1985, the homestead was mortgaged for $2,000.00, to be paid over 24 months at $94.61 per month. This mortgage was paid in full during the marriage. Appellee stated that he borrowed the $2,000.00 to help purchase a car for one of appellant’s daughters. A court-appointed appraiser valued the homestead at $85,000.00 as of the date the parties married. The same court-appointed appraiser valued the homestead at $91,000.00 as of December 19, 1991.
Evidence presented at trial also reveals that, during the marriage, appellant was employed as a secretary for an insurance company earning $1,000.00 per month; appellee worked as a fireman for the civil service earning approximately $960.00 per month. During the first two and one-half years of their marriage, the parties and two of appellant’s three daughters lived in a house rented to appellant. Appellant paid the rent and all expenses on the rent house while the parties lived there and made improvements to appellee’s homestead. After the two and one-half years of living in the rent house while improving appellee’s house, the parties and appellant’s two daughters moved into appellee’s house and continued to live there for approximately five and one-half years. During this time, appellant used her earnings to pay the telephone bills, gasoline bills, grocery bills, and insurance on appellee’s house and all family vehicles; appellee used his salary to make the mortgage payments and utility bills on both his house and his farm. Appellant testified that over the course of the marriage, she spent a least $13,190.00 on improvements to appellee’s house and for living expenses. She stated that the $13,190.00 was proceeds from the sale of a house she owned a one-half interest in prior to the parties’ marriage.
Finding that the parties had lived separate and apart for more than eighteen months, the chancellor granted appellee an absolute divorce on those grounds effective March 27, 1992. A decree was entered on May 13, 1992, in which the chancellor found appellee to be the owner of the real properties he acquired prior to the marriage. The chancellor ordered that appellee would remain the owner of all real property owned by him prior to the , marriage and that appellant would have no interest in his real property except as provided in the decree. After considering the court-ordered appraisals, the chancellor then found that certain improvements were made to appellee’s house by the parties which caused the value of the house to increase by $6,000.00. The chancellor awarded appellant “$3,000.00 for one-half (1/2) of the increase in value of the home which resulted from the efforts of the parties.” The decree also distributed the parties’ personal property by ordering that the personalty should “remain the sole property of the one in possession.” There is little explanation of exactly what personalty was distributed. The decree also distributed part of appellee’s civil service pension to appellant.
DIRECT APPEAL REDUCTION IN MORTGAGE AS MARITAL PROPERTY
Appellant argues the chancellor erred by not considering evidence that during the parties’ marriage, the indebtedness held against appellee’s non-marital properties was greatly reduced through payments made with marital funds. Appellant argues, both below and on appeal, that section 9-12-315 permits the chancellor to award appellant one-half of the reduction in indebtedness, either as an increase in value of non-marital property, section 9-12-315(a)(2), or as a transformation of non-marital property into marital property through the investment of marital funds, section 9-12-315(a)(1)(A). Appellant claims the chancellor erred by not considering these sections of the statute when dividing the parties’ property. We agree.
With respect to the division of property in a divorce case, we review the chancellor’s findings of fact and affirm them unless they are clearly erroneous, or against the preponderance of the evidence; we review the division of property and affirm it unless it is clearly erroneous, or against the preponderance of evidence. Bagwell v. Bagwell, 282 Ark. 403, 668 S.W.2d 949 (1984); ARCP Rule 52.
In the present case, the chancellor’s finding with respect to ownership of the homestead and farm are supported by the preponderance of the evidence. Appellee owned these properties prior to marrying appellant. Section 9-12-315(b)(1) therefore excepts these two properties from the definition of marital property. In other more affirmatively phrased words, these two properties are classified as non-marital properties. We cannot say the chancellor erred in ordering that appellee remain the sole owner of these properties.
However, the chancellor did err in failing to consider that marital property was used to pay some of the debt against the non-marital properties. Earnings acquired subsequent to marriage are classified as marital property. Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984); Ark. Code Ann. § 9-12-315(b). In Bagwell, 282 Ark. 403, 668 S.W.2d 949, we stated that a chancellor may find that a non-owning spouse is entitled to some benefit by reason of marital funds having been used to pay off debts on the owning spouse’s non-marital property. We have also held that a non-owning spouse is entitled to some benefit when marital funds are used to purchase a home built on the owning spouse’s non-marital lot. Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983).
Section 9-12-315(a) gives a chancellor the discretion to divide equitably both marital and non-marital property after considering the stated factors. In fact, when considering the former property division statute, we have stated that a chancellor is given broad powers to distribute both non-marital and marital property to achieve an equitable division. Williford, 280 Ark. 71, 655 S.W.2d 398. The overriding purpose of the property division statute is to enable the court to make a division that is fair and equitable under the circumstances. Canady v. Canady, 290 Ark. 551, 721 S.W.2d 650 (1986).
There was evidence presented indicating marital funds were used to pay some of the debts against appellee’s homestead and farm. This is relevant evidence for the trial court to consider when dividing the parties’ marital and non-marital property. See Ark. Code Ann. § 9-12-315(a). See also Bagwell, 282 Ark. 403, 668 S.W.2d 949; Williford, 280 Ark. 71, 655 S.W.2d 398. We reverse the decree on this point and remand for consideration of this evidence.
CROSS-APPEAL INCREASE IN VALUE TO NON-MARITAL PROPERTY DUE TO IMPROVEMENTS; DEBT FOR IMPROVEMENTS
For his first point on cross-appeal, appellee claims the chancellor erred in awarding appellant the $3,000.00, or one-half the $6,000.00 increase in value to his house from the labor and efforts of the parties’ improvements to the house. He claims the chancellor erred further in making him responsible for the remainder of the $3,500.00 debt for the central heating and air unit added to his house during the marriage.
At trial, appellant presented evidence of improvements made to appellee’s house during the marriage. This evidence was contested by appellee who characterized the improvements as changes. He also disputed that all the improvements were made during the marriage, claiming that some were made prior to the marriage.
Appellant presented a list of improvements made and testified that during the marriage, the parties cleared the yard of excess building materials, debris, and approximately 30 trees; cleared the interior storage area of similar debris and finished it as a bedroom; replaced posts on front porch and added storm door; added baseboards, window frames and door frames throughout; removed paneling, patched sheetrock, and painted or wainscoted and papered walls throughout; replaced vinyl and sub-floor in kitchen; added dishwasher, Jenn-Air, stainless steel sink, ceramic tile and new Formica in kitchen; refinished cabinets in kitchen; installed new light fixtures in kitchen; installed ceiling fans throughout; installed new bathroom fixtures in both bathrooms; installed mini-blinds and carpet throughout; installed central heat and air unit; replaced shingles on roof; painted exterior wood; painted and shingled pump house; planted shrubs and trees; installed water lines and gas lines to connect with public utilities; laid foundation for addition of an attached three-car garage, utility room, and full bathroom.
Appellee specifically argues appellant did not meet her burden of proving that the $6,000.00 increase in value shown by the appraisals was caused by the alleged improvements. Appellee argues that the $6,000.00 increase is relatively small given the high rate of inflation and could have been caused by factors other than the improvements. He contends that an increase in value of non-marital property is classified as non-marital property pursuant to section 9-12-315(b)(5); and that the chancellor therefore erred in awarding appellant one-half of the increase in value of his home. The chancellor further compounded the error, argues appellee, by making him responsible for the debt on the improvements, namely the remainder of the $3,500.00 owed for the central heating and air unit.
As stated in the decree, the chancellor specifically found that the $6,000.00 increase in value reflected by the appraisals was caused by the improvements made to appellee’s house. The chancellor also found that the increase resulted from the parties’ efforts and therefore awarded appellant one-half of the increase.
Although section 9-12-315(b)(5) classifies an increase in value of non-marital property as non-marital property, it is appropriate for a chancellor to consider the non-owning spouse’s contributions toward the increase in value when dividing the property. See Ark. Code Ann. § 9-12-315(a). Given the evidence presented as to the improvements made by both parties, as well as the increase in value reflected in the appraisals, we cannot say the chancellor’s findings and division of property were clearly erroneous.
As for the chancellor’s decision placing full responsibility for the debt of the central heat and air unit on appellee, we note that although the division of debts is not addressed in section 9-12-315, the chancellor has authority to consider the allocation of debt in deciding a divorce case. In Hackett v. Hackett, 278 Ark. 82, 85, 643 S.W.2d 560, 562 (1982), we stated that “[i]ndeed it would be unrealistic for a chancellor to refuse to consider the debts of the parties in deciding a divorce case.”
At trial, the chancellor stated the following:
It’s also the finding of the court that he [appellee] will be totally responsible for the debt on the air conditioner and thát the air conditioner has remained in the house.
And just as I am not dividing all of the money that went into the house between the parties, I’m also not going to divide what remains in the house as being a debt. I mean, in other words, you can’t have it both ways. We’re not putting all the money that went into the house and saying that she gets that back; we’re also not going to say that she has to pay any part of the debt with something that is remaining with the house.
The chancellor specifically found that the unit was an improvement to the house and that the unit would remain in the house, which is appellee’s non-marital property. We are well aware that appellee disputes the finding that the unit is an improvement to his house. However, based on the appraisals and the evidence of the improvements, we cannot say the chancellor clearly erred in making such a finding nor by placing full responsibility on appellee for the $3,500.00 debt to finance the improvement to his non-marital property.
CROSS-APPEAL INEQUITABLE DISTRIBUTION OF APPELLEE’S PENSION
As his second point on cross-appeal, appellee argues the chancellor made an inequitable division of marital property when she awarded appellant part of appellee’s civil service retirement benefits. To be equitable, he argues the chancellor should have either awarded him part of appellant’s social security benefits or should not have awarded appellant part of his civil service benefits.
Appellee testified that he had a vested pension with the civil service, that he did not pay any social security taxes, and that he was not entitled to receive any social security benefits. He stated that he had worked for civil service almost 25 years and that if he continued to work there until he reached age 50, he could draw his civil service benefits then. Otherwise, he could draw his civil service benefits when he reached age 62. He also stated that his civil service benefits had a cash value of approximately $ 14,000.00, explaining that he could be paid the $ 14,000.00 if he were to quit working there immediately. He also stated the total amount he contributed into his civil service benefits plan during his marriage to appellant was approximately $14,000.00.
' There was no evidence presented relating to appellant and whether she was entitled to receive social security retirement benefits. Likewise, there was no evidence presented as to whether she had a private pension or any retirement benefits whatsoever.
The chancellor stated she was aware that appellee’s pension could be in lieu of social security benefits. However, she also stated that she was going to treat appellee’s pension just as she would any other. Accordingly, the decree states as follows:
Therefore, it is found that plaintiff [appellant] is entitled to participate in the retirement benefits of said plan to the extent that one-half (1/2) of the benefit which resulted in contributions made to the plan between March 25,1983, and March 27,1992. In the alternative, counter-claimant [appellee] shall have the right to pay $7,000.00 to plaintiff [appellant], which amount represents one-half (1/2) of the present cash value of the increase to the plan during the course of the marriage.
At trial, the chancellor stated that appellee could have the weekend and two working days in which to produce a reason she should treat appellee’s civil service pension differently than any other pension. The chancellor indicated if she did not receive any such reason within the given time, she would let her ruling stand. The record does not indicate that appellee ever presented the chancellor with the requested information.
Appellant argues that appellee has waived this argument on appeal by his failure to present the trial court with the requested information. We agree. Our research indicates that Congress has spoken in this area. 42 U.S.C. §§ 407, 659, 662(c) (1988) (indicating that social security benefits are not assignable, not subject to legal process, and not to be divided by a state court considering property division in a divorce case); 5 U.S.C. § 8345(j)(l) (1988) (providing that civil service retirement benefits may be paid directly to a person other than the employee pursuant to a state court order, divorce decree, or order of property settlement). Despite the fact that law exists in this area, and that appellee was given a gracious opportunity to present an objection and any supporting authority to the trial court, he did not do so. Accordingly, we hold appellee has waived this argument on cross-appeal and we do not address it.
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G-rieein Smith, Chief Justice.
Litigants sought answer to the plaintiff’s assertion that a life insurance policy had been wrongfully terminated. From a jury’s verdict requiring consideration of confusing and inconsistent equations — involving calculations from which one moderately versed in mathematics would retreat, and in respect of which an expert could only state a conditional result — the defending insurer has appealed.
The $2,000 policy on the life of Maurice Marion May was issued November 18, 1926, when he was 18 years of age. He died April 30, 1948. Mrs. Dora E. May, the insured’s mother, had on frequent occasions looked after her son’s business and claimed to have made some of the premium payments.
On March 18, 1945, the Company mailed Maurice its statement that on the premium anniversary February 18 of that year the unused loan value was $23.44. Applied as a payment on the annual requirement of $41.74, the available loan fund would extend the policy to September 11, 1945. Supplementing this notice, the Company wrote the insured on August 11th, saying the full loan value would he exhausted with use of the small' balance previously mentioned, and that $18.30 would be needed to complete the annual premium payment. If was then stated that this balance, if unpaid after 31 days from the date of notice, would work a forfeiture. The expression was that the policy would ‘ ‘ cease ’ ’. But [said the writer] “We offer any possible assistance to aid you in retaining the benefits of this policy, and will gladly furnish you with any information you may desire”.
On September 22d the Company wrote that through failure to pay the premium balance the policy had lapsed. Blanks for use in applying for reinstatement were enclosed. These, said the letter, .should be filled out and returned with $18.30. Further word was not received during the insured’s lifetime, but on the day of death an interested relative wrote for information. This suit followed the Company’s prompt disclaimer of liability.
Witnesses called by the defendant testified that if the 1945 premium had been fully paid when due February 18th the available loan value would have been $744. This does not appear to be contradicted; but appellee insists that the then loan value was $23.44 plus interest overcharges and other items of credit not shown on the statements rendered by the Company and that these were factors not taken into consideration by appellant when the forfeiture was declared. The Company’s right to add interest to a borrowed sum is conceded, but it is insisted that with failure to pay this item the interest cannot be added to the capital loan and become a part of the principal for the purpose of charging future interest, for this, says appellee, would be equivalent to paying “interest on interest on interest”, contrary to the principle announced in Vaughan et al. v. Kennan, 38 Ark. 114. For example, appellee concedes that a premium loan of $41.74 was made February 18, 1935, but maintains that the annual interest should have been computed to the policy anniversary (November 18) and set aside as a separate debt of $1.67 for the nine-months period, but that it should not be added to the principal for the purpose of becoming interest-bearing. The Vaughan-Kennan case is dis-
According to the Company’s records its first loan was for a part of the premium dne February 18, 1933— $30.30. The difference of $11.44 was paid with cash or by check. During the co-called ‘ ‘ depression years ’ ’ small money installments were accepted. These, in some instances, shifted the payment dates; but they did not affect the anniversary.
By April, 1939, according to Company records, loan indebtedness recognized by and acquiesced in by the insured was $213.36, including interest. At that time a • consolidated loan was made. By adding the premium of $41.74 due for carrying the risk to February, 1940, the amount was $255.10. The 1941 premium was paid by check.
On March 23, 1942, the insured asked for a loan of $492.57. The application included a request that the_ premium due February 18 of that year be included and that “previous loan indebtedness with accrued interest thereon” be deducted. The loan was to bear interest at 6%, payable on policy anniversaries, “. . . and I acknowledge said amount, with any interest that may accrue, to be an indebtedness to said Company on account of said policy. . . . When any interest on this loan becomes due and is not paid [it] may be added to and become a part of the principal indebtedness evidenced by this.agreement, and subject to the same rate of interest”.
The cause of action alleged in the complaint of August 27, 1948, was twofold: (a) the wrongful declaration that loan values were insufficient to maintain the policy beyond September 11, 1945, and (b) the Company’s rejection of the insured’s offer to pay a premium. The indebtedness was said to have been substantially less than loan values.
It was not charged that the loan of March, 1942, was for an erroneous sum or that the note was fraudulently procured; neither was it contended that its execution was the result of mutual mistake. At trial there was an attempt to prove by Mrs. Dora May (the decedent’s mother) that on March 17, 1933, she sent the Company $10.44 to be applied on her son’s policy, and that credit was not given. When asked whether she had searched for the original check, Mrs. May replied: “I haven’t looked for a check of any kind. I have just kept a record of most everything, and I let somebody else more competent than I hnnt np all of these checks”.
The Court then addressed this question to the witness: “In your bank account, Mrs. May (March 17, 1933) it shows an item — that a check was drawn on your account for $10.44. Do you know whether that check was issued to the Aetna Company in payment of the policy of Maurice May? You may answer yes or no, then you give any explantion you see fit”. A. “I will say ‘yes’, but you are not going to get me twisted up”. Q. “Do you have any personal recollection of that check” A. “No, sir, I do not”. Question by the Court: “Do you know of your own knowledge that that payment was sent to Aetna [to apply] on the policy of Maurice Marion May?” A. “You get me right back where you started with me. I know it wasn’t paid on mine because I didn’t have anything like that”.
If it should he held that examination of the account should start back of the 1942 note, the vice of this evidence is that Mrs. May admitted that she knew nothing about the bank entry except that she did not at the time in question make a payment on her own policy; but she assumed that the entry stood for a check to the Company. In short, merely because the bank account was charged with an amount equal to a quarterly premium on the son’s policy, she was confident the entry stood for such a check, although quarterly payments had not been the custom. Beginning with February, 1927, premiums were on an annual basis. The Company’s records showed that in February, 1933, a premium loan of $30.30 was made and that the difference was paid in cash; yet fifteen years later Mrs. May thought the hank’s charge “must, have been” for the check she did not remember sending for her son.
Illustrating the difficulty encountered in going back of the settlement made by the insured in 1942, attention is called to Mrs. May’s contention that a check for $18,76 sent the Company August 22, 1935, was intended as a payment on the son’s account. Here, again, the witness did not remember the transaction. Semiannual payments on her own policy were $18.27 until she attained age 60, when they were reduced to $17.67. Due dates were the 23d of January and July with a grace period of 31 days. The payment in question — claimed by the Company to haye been made for herself — was within the grace period. But, said Mrs. May, a penciled notation “Maurice” was found in the lower left-hand corner of the check. The witness thought it very likely that when her statement came from the bank she saw the check and at that time marked “Maurice” on it. A question by the Court was: “Very probably the notation was not written at the time the rest of the check was written?”, and Mrs. May replied, “It might not have been — I am not positive about that; but I know I wrote it afterwards when it came back. If I had written the same for mine, I wouldn’t have forgotten about it in a month’s time”.
When a question relating to the $10.44 check was again asked, Mrs. May replied: “I won’t answer that! I don’t know whether I’m answering right or wrong on that”. And finally, while being cross-examined, this question was addressed to the witness: “Tell the jury why— when you knew the premium [on your son’s policy] had been paid in February, 1935 — tell us why you issued a check for $18.76 in August of that year? . . .” The Court overruled an objection by the plaintiff’s attorney, and the question was in part repeated: — “Now, tell us why you issued another check in the same year”. The response was, “I won’t answer that”. After other questions had been asked regarding the two checks, Mrs. May made this final declaration: “You just as well quit asking me all those things. I am just not going to answer — not going to Imow another thing!”.
One of the questions she declined to answer was whether she had made an effort “to determine from the Company whether it had received those payments — do you know whether it denied receiving them?” [It should be remembered that Mrs. May had testified that she was her son’s agent and guardian, and had handled many of Ms business transactions, including the insurance matters].
Our conclusion is that the Company, under the plaintiff’s pleadings, bad a right to rely upon the 1942 loan and recitals in the note that it was a settlement as of that date.
The distinction between rescission and reformation was very clearly stated by Chief Justice McCulloch in Frazier v. State Bank of Decatur, 101 Ark. 135, 141 S. W, 941. The reformation of a contract [said Judge Me Culloch] involves an effort to enforce it as reformed, - whereas rescission involves an effort to abandon and recede from a contract which the parties did not intend to make. One of the parties to a contract cannot have it reformed on account of mutual mistake, for to do so would be to enforce the reformed contract which the other party had not intended to make. But a different question is presented where one of the parties to a contract seeks to have it rescinded because of a mistake on his part, for that makes only a case of there being no contract between the parties on account of the fact that there had not been a meeting of the minds of the contracting parties. Nor does this violate the rule of evidence which forbids varying or contradicting the terms of a written instrument. The instrument did not become the evidence of the contract between the parties until it was accepted, and if it was accepted by a mistake as to its contents, it constituted a mistake as to the identity of the subject-matter, as much [so] as if it had been the delivery of an article sold and purchased.
Generally speaking, no rule of evidence is violated by admitting parol proof of the consideration for a promissory obligation if the purpose is to show the want of any consideration, or that the consideration failed, or that it was illegal. Tate v. Gould, 175 Ark. 306, 299 S. W. 24..
In the case at bar the note was given approximately six years before the insured died. No one testified that he had ever questioned its correctness; and in going to trial under allegations of the complaint there was noth ing to put the defendant on notice that the note would be questioned. The Company asked that the complaint be made more definite and certain, but the response was that a premium was tendered “about the 18th day of February, 1945, and within the 31 days of grace; . . . and, in addition, there was sufficient loan value to keep the policy alive”. There was no effort at trial to establish the alleged tender.
At the conclusion of all the testimony the defendant moved for time within which to procure from the home office records pertaining to the alleged payment of $18.76 in 1935. The Court’s attention was called to the absence from the pleadings of any reference to the check, hence its introduction and the claim made as to its application came as a surprise. The Court announced that the evidence was closed, but the jury — without being instructed as to the applicable law — was excused until May 24th, a period of eighteen days. The verdict was for payment of $2,000 less $786, with interest at 6%. An attorney’s fee of $300 was assessed.
Since the suit was not of a character informing the defendant that the 1942 note would be questioned, we consider only the transactions subsequent to that time.
First, could the Company add interest to principal at annual rests and thereafter compute interest on the consolidated sums ?
In Guardian Life Insurance Co. v. Waters, 205 Ark. 87, 167 S. W. 2d 886, an insurance contract somewhat similar to the one here was considered. In case of default, interest was to be added to the loan, ‘ ‘ and in turn it bore interest at the principal rate.” We said that the promise to pay interest was a condition precedent to the insured’s right to have the contract continued in force.
Mr. Justice Eakin, Vaughan v. Kennan, supra, said that “. . . in case of notes bearing contractual interest, when there is no agreement as to the interest after maturity, they can bear interest at the ordinary rate of six per cent, after due. It is a matter of intention to be gathered from the direct expressions, or plain import of the instrument ’ ’. Kennan had sued Yaughan and another as joint makers of a note “with interest from date at the rate of 10 per cent, per annum”. It was added that “If interest is not paid annually, to become principal and bear the same rate of interest”. In construing this language the Court said, first, that it was unusual to speak of annual interest on a note running less than nineteen months, for “There would only be one payment,, and the whole interest would be payable at the end of another year. Besides, there is no obligation to pay anything before maturity, and nothing could be due to be converted into principal”. Therefore, said Judge Eakin, “The most probable view of the intention of the parties, to be gathered from the language, is,” . . . etc.
The holding was that each unpaid sum of annual interest should stand alone, as though a new note had been given for it, bearing like interest. "While this construction excluded a charge of interest on interest, the Court’s decision was tied to the intention of the parties. It was not a declaration that (while contracting in a non-usui’ious manner) the parties to an ■ instrument can not declare their own terms, saying what would and what would not be principal.
In some of the earlier cases it was held that interest was allowable on the overdue installments of interest, but not after the maturity of the principal. Wheaton v. Pike, 9 R. I. 432, 11 Am. Rep. 227.
Rector v. Collins et al., 46 Ark. 167, holds that where the maker of a note payable in futuro, with 10 percent interest from date, omitting the words “until paid”, paid that rate of interest after the note matured, he could not recover the excess over 6% accruing after maturity. Judge Battle, who wrote the Court’s opinion, said: “It was not proved that Collins paid any interest under a mistake of fact, or that he was induced by fraud practiced upon him to do so. He is not entitled to any credit for excessive interest”.
In the case at bar the contract was that loans would be made with a pledge of the policy as sole security, with interest at six percent per annum payable at the end of each policy year, but if the interest was not paid when due, “it shall be added to the principal and bear interest at the same rate”. With payment of the premium for a particular year, the entire loan value for the end of each policy year “will be available during the same year”. A premium not paid before the end of the grace period would be automatically loaned “and charged as an indebtedness secured by this policy, subject to interest at the rate of six percent per annum as prescribed for loans”.
We think the effect of the contract — and certainly it is not one prohibited by law or one contrary to public policy under our decisions — was to have unpaid interest added as principal each policy anniversary, with the right to compute interest thereafter as though the added interest were a part of the principal. That is what the parties intended when the contract is given a rational meaning.
With an acknowledged debt of $492.57 and the premium paid to February 18, 1943, the next debit would be six percent on the note, chargeable on the policy anniversary November 18. Since the note was dated March 31, 1942, the interest for 232 days to November 18 of that year would be on the basis of less than 8.1 per day, slightly in excess of the item of $18.72 charged.on the policy anniversary. This, added to the note, shows $511.29. Interest chargeable Nov. 18, 1943, would be $30.68; for Nov. 18, 1944, it would be $32.52, and the interest on the debt of $574.49 from Nov. 18, 1944, to Sept. 11, 1945, (297 days) would be slightly in excess of the item of $28.05 actually charged, reflecting an indebtedness on the note and interest of $602.54.
Since the premium paid for the 1942-’43 period was included in the March (1942) note, the 1943-’44 premium was credited when an automatic loan of $41.74 was made February 18, 1943. A similar transaction covering the 1944-’45 premium occurred February 18, 1944.
The questions are (a) did the Company correctly compute the policy’s cash surrender or loan value, and (b) were these values consumed by the note of March 31, 1942, with interest, plus subsequent premium loans, with interest ?
The loan value November 18, 1945, was $730; on November 18, 1944, $678. This testimony is not disputed, and the fact is shown by the policy. A. J. Moody, the Company’s Assistant Secretary, testified by deposition that the method for determining* the loan value on February 18 was to ascertain what it was on the preceding anniversary (Nov. 18) “and add thereto one-fourth of the difference between that value and the value indicated for the next November 18”. The difference between $730 and $678 — the increase for a year — is $52. A formulae giving the Company’s result (but not disclosed by any tabulation in the record) would be to prorate the increased value to Sept. 11, 1945 — the date of cancellation. Dealing with the time from Nov. 18, 1944, to Sept. 11, 1945, there would be this equation: 298 times 52 divided by 365 equals $42.46. Take the loan value on Nov. 18, 1944, and add to it this 298-day prorata, and the value as of Sept. 11, 1945, would be $720.46.
The charges would be as follows: Prorata premium on policy from Feb. 18,1945, to Sept. 11,1945, — 205 times $41.74 divided by 365 equals $23.44. Automatic premium loans were: Feb. 18,1943, to Feb. 18, 1944, $41.74; interest from 2/18/43 to 11/18/43, $1.87. Feb. 18, 1944, premium for period ending Feb. 18, 1945, $41.74; interest to 11/18/44, $1.87. Interest on $43.61 ($41.74 plus $1.87) from 11/18/43 to 11/18/44, $2.62. Interest on $46.23 ($41.74 plus $1.87 plus $2.62) from 11/18/44 to 2/18/45, 70c — [1943 loan]. Interest on $43.61 from 11/18/44 to 2/18/45, 66c — [1944 loan]; total of both loans, $91.20. Interest on $89.84 ($91.20 less 70c less 66c) from Feb. 18, 1945, to Sept. 11, 1945, $3.03. Total due Company on automatic loans, both principal and interest, subsequent to March 31, 1942, $94.23.
Recapitulation: Note and interest, $602.54; automatic loans [2/18/43 and 2/18/44] and interest, $94.23; prorata automatic loan, 2/18/45 to 9/11/45, $23.44; interest on $23.44 from 2/18/45 to 9/11/45, 79c. Total charges, $721. Difference between charges and loan value ($721.00 less $720.46), 54c. The Company’s computation of charges is shown to have been $720.45, or 55c more favorable to the insured than the results here.
These calculations — based upon testimony not in dispute — do not sustain the appellee’s contention that the insurance was wrongfully cancelled. It follows that the judgment must be reversed; and, since the cause has been fully developed in respect of matters in controversy subsequent to the note of March 31, 1942, the cause is dismissed. It is so ordered.
When the policy was issued the basis of payment was quarterly premiums of $10.44. The insured later requested that, beginning with February, 1927, the annual basis be established with payments of $41.74. cussed infra. .
In Doev. Warren 7 Greenl. 48, this interesting statement appears: “Interest is an accessory or incident to principal. The principal is a fixed sum; the accessory is a constantly accruing one. The former is the basis or substratum from which the latter arises, and upon which it rests. It can never by implication of law sustain the double character of principal and accessory. Whatever the plaintiff recovers beyond the face of the notes, the sum originally due, he recovers as interest. No part of it then has yet become principal, nor can it be so regarded. After interest, however, has accrued, the parties may, by settling an account, turn it into principal. It is then in the nature of a new loan; but it does not become principal, by operation of law, merely because it is due.” | [
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Richard B. Adkisson, Chief Justice.
Appellant, Bobby Canard, was convicted by a jury of rape and was sentenced to forty years in the Arkansas Department of Correction. The only issue on appeal is whether there is sufficient evidence to sustain the conviction. We affirm.
Testimony at trial revealed that on December 12, 1980, appellant picked up his daughter at the home of his ex-wife and took her to Wal-Mart, where he purchased some boots for her. They ate supper at the Sonic Drive-In. Afterwards, while driving towards Grubbs, Arkansas, he turned off onto a gravel road and raped her. The daughter, who was eleven years old at the time, testified that her father stopped on the gravel road, telling her he had to let his headlights warm up. She stated that he then “unzipped my pants and took my leg out... He unzipped his pants and took his penis out and put it into me and started raping me.” She testified that she told him that she “didn’t want to, but he did anyway.”
Appellant contends that there is no showing of forcible compulsion and alleges that deviate sexual activity could have occurred rather than rape because the testimony is unclear as to exactly what body orifice of the daughter was penetrated. He also argues that there was no showing that appellant was the man who raped her. These contentions are without merit.
Forcible compulsion is defined in Ark. Stat. Ann. §. 41-1801 (2) (Repl. 1977): “‘Forcible compulsion’ means, physical force, or a threat, express or implied, of death or physical injury to or kidnapping of any person.” In Spencer v. State, 255 Ark. 258,499 S.W.2d 856 (1973) we stated that the quantum of force need not be considered as long as the act is committed against the will of the victim. Here, the daughter testified that she “didn’t want to, but he did anyway,” and that she was very much afraid of appellant. She also used the word “rape,” which, in the context of her testimony, not only denotes sexual intercourse but also that it was done against her will. This fact, when considered with the age of the victim and the fact that appellant is her father, leads us to conclude there was sufficient evidence from which the jury could conclude that forcible compulsion was present and that rape rather than deviate sexual activity occurred.
Furthermore, there was sufficient evidence for the jury to find that appellant was the man who raped her. It is undisputed that appellant is her father, and she clearly testified that it was her “daddy” who picked her up at her house and later raped her. We find no error.
Affirmed. | [
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Richard B. Adkisson, Chief Justice.
The appellants own real property, zoned commercial, at 240 North College in the City of Fayetteville. In 1960, at a cost of $3,000.00 the appellants installed on-site free-standing signs to advertise the retail automobile dealership operated by them at that location.
When installed, the appellants’ signs complied with all applicable city ordinances. On December 19, 1972, a comprehensive sign ordinance (Ordinance No. 1893) was adopted by the Fayetteville Board of Directors. The signs owned by the appellants do not conform to the size restrictions and setback requirements prescribed by Ordinance No. 1893.
An amortization schedule contained in § 17B-5 (A) (1) (C) of the Fayetteville Sign Ordinance requires alteration or removal of all on-site nonconforming signs within seven years from the effective date (January 19, 1973) thereof. Ordinance No. 1893 provides for no type of compensation for owners of pre-existing, nonconforming signs, other than the granting of a period of seven years from the effective date in which to amortize their investment. The owners are also responsible for all removal costs. The appellants refused to alter or remove the nonconforming sign at 240 North College and this action was brought by the City of Fayetteville seeking an injunction against continued noncompliance.
The case was submitted to the trial court under stipulated facts and exhibits. On July 12, 1982, the Washington County Chancery Court ruled that § 17B-5 (A) (1) is constitutional on its face and as applied to the appellants. The court found that the appellants had failed to prove by a preponderance of the evidence that application of said Section to them would be unreasonable. The court based its decision on evidence of the original cost of the appellants’ signs, the signs’ age, the cost of removal, and the extent of depreciation for Federal Income Tax purposes. The court noted the absence of evidence to show damage to the real property, extent of business losses, or remaining economic life of appellants’ signs.
The appellants were ordered to remove the signs within 30 days and the appellee authorized, upon the appellants’ failure to do so, to remove the sign at the expense of the appellants.
Appellants argue on appeal that the Fayetteville Sign Ordinance is unconstitutional on its face and if not it is unconstitutional as applied to appellants. This Court resolved the issues raised here in the case of City of Fayetteville v. McIlroy Bank & Trust Company, et al. 278 Ark. 500, 647 S.W.2d 439(1983). There we upheld Ordinance No. 1893 as constitutional on its face and held that it was constitutional as applied under the same basic facts as are contained in this case; therefore, that case is controlling here.
Affirmed.
Holt and Purtle, JJ., concur. | [
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Jack Holt, Jr., Justice.
Herbert Hawkins and the appellant, George Scroggins, were charged with delivery of a con trolled substance, methamphetamine, in exchange for money.
After a jury trial, Mr. Scroggins was found guilty and sentenced to forty years in the Department of Correction and fined $50,000. Mr. Hawkins was found not guilty.
In particular, Mr. Scroggins questions the admissibility of an informant’s prior recorded testimony and the sufficiency of the evidence. He also presents numerous other assignments of error. Inasmuch as his arguments are meritless, we affirm the trial court.
SUFFICIENCY OF THE EVIDENCE
Although some of the arguments raised by appellant involve admissibility of evidence, we will not consider trial errors until after we have determined sufficiency of the evidence, including that which perhaps should not have been before the jury. Leshe v. State, 304 Ark. 442, 803 S.W.2d 522 (1991); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).
Mr. Scroggins argues that the trial court erred in denying his motion for a directed verdict. A motion for directed verdict is a challenge to the sufficiency of the evidence. Harris v. State, 309 Ark. 1, 828 S.W.2d 346 (1992). In reviewing the denial of a motion for directed verdict, the evidence is viewed in the light most favorable to the appellee, considering only the evidence that tends to support the verdict. Atkins v. State, 310 Ark. 295, 836 S.W.2d 367 (1992). On appellate review, we need only “ascertain that evidence most favorable to the appellee, and if there is substantial evidence to support the verdict, we affirm.” Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992). We find the evidence more than sufficient.
David Cains’ testimony incriminated Mr. Scroggins. In his testimony, Mr. Cains discussed the drug deal he made with Mr. Scroggins as well as referring to past transactions of drug sales with him. Evidence presented at trial indicated that prior to Mr. Scroggins’ visit to Cains’ home, the Drug Task Force searched the home for drugs to ensure that the house was clear of drugs and remained outside watching the house as Mr. Scroggins arrived. Shortly after Mr. Scroggins delivered the drugs, Drug Task Force members entered Mr. Cains’ home and secured the drugs allegedly delivered by Mr. Scroggins. The methamphetamines, according to a task force member’s testimony, were discovered underneath Mr. Cains’ pillow. A chemist testified that he tested the drugs and found them to be 91.9 grams of methamphetamine.
Determining credibility of witnesses is within a jury’s domain. See Felty v. State, 306 Ark. 634, 816 S.W.2d 872 (1991). Obviously, here, the jury believed the prosecution’s witnesses, and their testimony is more than sufficient to support the jury’s verdict.
ADMISSIBILITY OF INFORMANT’S PRIOR TESTIMONY
Mr. Cains, a confidential informant on behalf of the State, gave testimony during a suppression hearing in this case and was subject to cross-examination by Scroggins’ attorney. Cains was murdered prior to trial. After a hearing to determine the admissibility of his testimony, the trial court determined that because Cains was subject to a “well-developed” cross-examination, his testimony was admissible at trial. Over the defendant’s objections, a tape and its transcription of Mr. Cains’ testimony were submitted to the jury.
On the tape, Mr. Cains testified that he had been arrested on September 29, 1990 for delivery of a controlled substance and felon in possession of a firearm. When his house was searched the day of his arrest, police discovered 2.5 ounces of amphetamine and 5 ounces of marijuana. Cains claimed that he obtained the amphetamine from Mr. Scroggins approximately three days earlier.
As a result of his arrest, Cains agreed to be a confidential informant and set up a meeting with Mr. Scroggins to purchase methamphetamines. That same day Mr. Cains telephoned Scrog-gins to buy “motorcycle parts” — their code for methamphetamine. About eleven o’clock that evening, Mr. Scroggins and Mr. Hawkins showed up at Mr. Cains’ house. Scroggins gave Cains the drugs and told him that he could pay later.
The test for determining whether hearsay evidence should be admitted when the declarant is unavailable is provided in A.R.E. Rule 804(b)(1) which states:
Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
(Emphasis added.)
The question of admissibility of an unavailable witness’ testimony was fully addressed in Scott and Johnson v. State, 272 Ark. 88, 612 S.W.2d 110 (1981). In deciding that the testimony from a preliminary hearing was inadmissible, this court stated:
There has traditionally been an exception to the right of confrontation where a witness who testified at a prior trial is unavailable at a later judicial proceeding. State evidentiary rules can fall within this exception if two tests are met. First, the witness must be unavailable.... Next, the evidence must be reliable. . .[AJdmission depends upon the circumstances surrounding the hearing. In the case of a preliminary hearing admission depends upon what kind of hearing is involved and whether it is a “full fledged” hearing or a limited one.
(Emphasis added; citations omitted.) Scott and Johnson, 272 Ark. 88, 92-93.
By applying the Scott and Johnson analysis to the facts at hand, we hold that Cains’ testimony was clearly admissible. Obviously, Cains was unavailable, and the circumstances of the suppression hearing insured the reliability of his testimony which was given under oath and before a judicial tribunal. Counsel for Mr. Scroggins was present and cross-examined Mr. Cains extensively.
The suppression hearing was held upon a motion by the defense to suppress statements taped during phone conversations between the confidential informant, David Cains, and Mr. Scroggins.
At the suppression hearing, Mr. Cains testified as to his arrest and subsequent agreement with authorities to serve as a confidential informant. He discussed how he and the appellant used the term “motorcycle parts” to describe methamphetamines and how Scroggins and co-defendant, Hawkins, had arrived at his house and engaged in a drug deal.
Mr. Scroggins’ counsel was able to cross-examine Mr. Cains thoroughly. Although the purpose of the suppression hearing was to determine whether taped phone conversations between Cains and Scroggins should be suppressed, counsel for Mr. Scroggins went far beyond this issue in his cross examination. It is obvious that defense counsel’s primary purpose in cross-examination was to impeach Mr. Cains, and for eight full pages of hearing transcript, he did just that. We agree with the trial court’s finding that the cross-examination was “well-developed.” For example:
Q. Have you ever been arrested on any other charges—not convicted, but arrested other than what you’ve told today?
A. On any felony charges?
Q. Any charges.
A. A couple of speeding tickets.
Q. Anything else?
A. Not that I can remember.
Q. Have you committed any felonies and not gotten caught that you haven’t been arrested for?
A. No sir, not to my knowledge.
Q. Okay. Now, you said that you had called up George and told him that you had a man that had large amounts of money who wanted to buy some parts. Is that correct?
A. Yes, sir.
Q. When did this conversation take place?
A. On the afternoon of September 29th.
Q. After you were—you were arrested?
A. Yes, sir.
Q. But, we don’t have that on tape, do we?
A. You don’t have what on tape?
Q. The fact of the—when you said you had a man that had a large amount of money that wanted to sell-finance some drugs.
A. I believe that’s in the—in the trans—I haven’t heard the tape, but in the transcripts there was—the conversation that I had a man with some money that wanted to purchase some amphetamine.
Q. How much money were you talking about? What did you tell him?
A. I don’t believe we discussed any particular—any particular amount.
Q. All right. And, this two and a half ounces of methamphetamine, how much is that worth?
A. That’s an arbitrary amount actually. Some people sell it for more than other people sell it for.
Q. How much were you planning on paying for it?
A. For what he was going to bring?
Q. Uh, huh.
A. The four ounces that he was going to deliver?
Q. Uh, huh.
A. Six thousand dollars.
Q. That’s how much that you—that you were planning on paying it?
A. That’s what I was planning on paying for it.
Q. How did you know that was the amount of money you were going to pay for it?
A. Because that’s what we—our previous dealings had been.
Q. How many times have you bought drugs from him in the past?
A. (There is no response.)
Q. Do you have a problem with the question?
A. (The witness indicates affirmatively.)
Q. How many times have you bought drugs in the past?
A. Uh, a couple of occasions.
Q. Two occasions?
A. Two occasions.
Q. All right. And the occasion before this one we are talking about, when was it?
A. Two or three days—approximately two or three days . before that.
Q. And, how much did you buy at that time?
A. I didn’t buy any of it.
Q. Well, you said you bought some from him on two or three different occasions.
A. I never paid cash for it—it was—it was always, as the terms goes, fronted to me.
Q. Now, you had bought motorcycle parts from him in the past have you not?
A. Well, I’d sold him motorcycle parts.
Q. Okay. You never had bought any at all from him?
A. (The witness shakes his head negatively.)
Q. Never have traded with him?
A. (The witness indicates negatively.)
Q. You’re shaking you head no?
A. No, I’ve never purchased any parts from him. He bought parts from me, my shop.
The questions asked of Cains afforded the trier of fact with a satisfactory basis for evaluating the truth of Cains’ statements. As such, the testimony was reliable and admissible under A.R.E. Rule 804(b)(1).
As sub-issues of this admissibility question, Mr. Scroggins also contends that the trial court erred in not deleting certain portions of Cains’ taped testimony, providing the jury with a transcript of Mr. Cains’ testimony, and by not admonishing the jury that evidence of other crimes is not admissible to prove character. We do not agree.
Mr. Scroggins wanted the portion of the tape that referred to Cains’ previous purchase of drugs from Mr. Scroggins deleted. However, since Mr. Scroggins was charged with delivery of a controlled substance in exchange for money, the testimony was admissible to show his intent. A.R.E. Rule 404(b); Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992). As such, this portion of Cains’ testimony should not have been deleted.
As for the other two sub-issues, they fail because Mr. Scroggins’ objections at trial were either based upon different grounds or insufficient. Scroggins contends that the trial court erred in the procedure it used when the jury, during deliberation, asked to review Cain’s testimony. At the time, Mr. Scroggins objected claiming that by giving the jury the transcript of Cains’ testimony, the trial court was placing too much emphasis on it. Now, he claims that the trial court erred because it did not follow the procedure prescribed in Ark. Code Ann. § 16-89-125(e) (1987), which states that once the jury retires for deliberation, if there is a disagreement among them regarding some piece of evidence or if they need information on some point of law, “they must require the officer to bring them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, counsel of the parties.” We will not consider an issue where the party changes grounds for an argument on appeal. See Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988).
Scroggins’ second contention that the trial court erred in refusing to admonish the jury as to the admissibility of evidence of other crimes to prove character is based upon an insufficient objection. At trial, Mr. Scroggins failed to state specifically why the testimony should be disregarded. An objection must be specific enough to apprise the trial court of the specific error in question. Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992).
PRETRIAL DISCOVERY
Next, Mr. Scroggins contends that the State withheld evidence in violation of his due process rights as to: 1) bodymiked tape recording of Scroggins’ second trip to Cains’ residence at which time the drugs were alleged to have been delivered; 2) the Pope County Drug Task Force Manual; 3) the testing procedures utilized by the State Crime Lab for comparison by Scroggins’ expert; 4) prior bad acts and promises of immunity and leniency made to Cains in exchange for his testimony.
When testimony is not disclosed pursuant to pretrial discovery procedures, the burden in on the appellant to establish that the omission was sufficient to undermine confidence in the outcome of the trial. Orsini v. State, 287 Ark. 456, 701 S.W.2d 114 (1985). The prosecutor’s responsibility is to provide any information or materials that tend to negate the defendant’s guilty in some way. A.R.Cr.P. Rule 17.1 (d). The key in determining if a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor’s failure to disclose. Absent a showing of prejudice, we will not reverse. Hall v. State, 306 Ark. 329, 812 S.W.2d 608 (1991). Although Mr. Scroggins describes all of this material as “exculpatory,” there was no showing that this evidence would have negated his guilt or that he was prejudiced by the State’s failure to disclose.
For example, Mr. Scroggins wanted the tape of a bodymiked conversation between Cains and Scroggins allegedly recorded during drug transactions between the two men. Mr. Scroggins’ attorney claimed that he could have used it at the suppression hearing to impeach Cains in order to prove that the two men were really talking about motorcycle parts rather than drugs. On the second day of trial, the prosecution surrendered the tape to Scroggins, and he did not use it at all. Accordingly, no proof was provided to the trial court that this tape was exculpatory in any way.
Mr. Scroggins also claims that he needed the Drug Task Force Manual in order to highlight the allegedly slipshod manner in which this drug buy occurred. As for alleged deals between authorities and Cains, Mr. Scroggins cross-examined Mr. Cains on this very issue. There has been no showing that failure to disclose this manual hampered Mr. Scroggins’ cross-examination of Cains in any way.
Mr. Scroggins complains that discovery was violated by the prosecutor’s failure to provide appellant with descriptions of the procedures used by the State Crime Lab in testing the methamphetamine seized from Cains’ residence after the alleged drug buy between Scroggins and Cains. Mr. Scroggins requested that a sample of the drug be sent to defense’s independent analyst in Georgia, and this request was granted. Apparently, Mr. Scroggins wanted the State to provide him with descriptions of all procedures used by the State Crime Lab so that his independent expert could follow these procedures and explain why they were not appropriate in his testimony at trial. However, the prosecutor refused claiming that he only had to provide the results of the tests performed by the State Crime Lab.
Here again, Mr. Scroggins has failed to show how he was prejudiced by the prosecution’s failure to provide him with a description of these testing procedures. As such, this argument is not persuasive.
For his last discovery allegation, Mr. Scroggins contends that the state committed reversible error in failing to provide him with information concerning Cains’ prior bad acts or promises of leniency made to Cains. As Scroggins has failed to show how he was prejudiced by these omissions, this too is a meritless argument. As the suppression hearing transcript indicates, Mr. Scroggins cross-examined Mr. Cains fully on these very topics. Although trial testimony indicated that Cains was told that his cooperation would be reported to the prosecutor, there was no evidence indicating that he was promised leniency.
DIRECTED VERDICT FOR CODEFENDANT
Mr. Scroggins’ next assignment of error is that the trial court erred in failing to direct a verdict for co-defendant, Mr. Hawkins because without the directed verdict, Mr. Hawkins could not be called as Mr. Scroggins’ witness.
Scroggins does not have standing to argue that a motion for directed verdict for Hawkins should have been granted. And, Hawkins has no grounds to appeal because he was found not guilty.
LESSER INCLUDED CHARGE
Mr.Scroggins also contends that the trial court erred in refusing to give the jury an instruction on a lesser included offense. Although the methamphetamine sold to Cains weighed 91.900 grams, Mr. Scroggins asserts that because the drugs were only 10.2% pure, this amounted to less than 28 grams of actual methamphetamine, without any adulterants or diluents. Accordingly, says Mr. Scroggins, the jury should have been instructed that they could punish him for delivery of 28 grams rather than 91.900 grams.
Ark. Code Ann. § 50-64-401 (a)(l)(i) (Supp. 1991) clearly provides that the punishment is to be determined by the aggregate weight of the drugs “including adulterants or diluents”. Therefore, with adulterants and diluents, the methamphetamines sold to Cains have an aggregate weight of 91.900 grams, and the court’s instructions to the jury were correct.
Mr. Scroggins also asserts that he should have received a second probable cause hearing because the first one was not recorded. He does not cite any authority to support this position; nor does he explain how he was prejudiced by the failure to record this hearing. Assignments of error unsupported by convincing argument or authority are not considered on appeal. See Dixon v. State, 260 Ark. 857, 545 S.W.2d 404 (1977).
NEWLY DISCOVERED EVIDENCE
Scroggins also contends that after it was too late to file a motion for new trial, he discovered that one of the jurors, Austin Ledbetter, was the former father-in-law of one of the persons to whom Cains sold drugs and that the former daughter-in-law, Kelly Ledbetter, was mentioned by name during the trial.
Scroggins claims he should have been granted a new trial because Kelly Ledbetter was one of the “victims” of Cains. However, Cains was not on trial. And, while Ms. Ledbetter may have been a buyer of Cains, she certainly was not victimized by him, at least not in the sense Mr. Scroggins implies. Once again, this argument is not supported by any authority. As such, we will not consider it on appeal. Dixon, supra.
ALLEGATIONS OF MISTRIAL
Mr. Scroggins lists situations in which the court erred in denying his motion for mistrial. First, he claims a mistrial should have been granted when the State mentioned that Scroggins had previously sold drugs to Cains (alluding to a statement Cains made at the suppression hearing.). The court denied the motion, correctly, because these “prior bad acts” go towards proving that Scroggins was at Cains’ home with the intent to sell drugs.
Secondly, he argues that a mistrial should have been granted when the State asked the chemist from the State Crime Lab whether Scroggins could have asked the chemist to have the purity of the drugs tested. As discussed earlier, the purity of the drugs is irrelevant because the gross weight includes diluents; thus a mistrial was not warranted here either.
And thirdly, Scroggins contends a mistrial should have been granted when the State asked questions of a witness about the conversation on the tape (of the bodymiked conversation between Cains and Scroggins). The judge denied the motion but told the witness to discuss what he saw not what he heard. No prejudice resulted so the trial court did not err in refusing to grant a mistrial. See David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988).
The last mistrial argument involves the fact that the State did not provide the defense with the bodymiked tape of the second meeting between Scroggins and Cains. Again, Scroggins has not demonstrated any prejudice and the tape was not admitted into evidence at trial. Therefore, no mistrial was warranted.
Mr. Scroggins also argues that the trial court erred in admitting taped conversations of Cains and third parties. Although Mr. Scroggins objected to the tape initially, he agreed with the judge when the trial court said that he would admit the tape but admonish the jury that the tape had some transactions not relevant to the case. Obviously, Mr. Scroggins cannot now complain when he agreed with the trial court’s ruling. See Key v. State, 300 Ark. 66, 776 S.W.2d 820 (1989); Gilbert v. State, 277 Ark. 61, 639 S.W.2d 346 (1982).
SPEEDY TRIAL
For his final argument, Mr. Scroggins contends that the State failed to give him a speedy trial. He was arrested on September 29, 1990 but not tried until January 27, 1992.
Delays resulting from continuances given at the request of the defendant are excludable in figuring the time for a speedy trial. A.R.Cr.P. Rule 28.3(c); Matthews v. State, 268 Ark. 484, 598 S.W.2d 58 (1980). The first order of continuance was filed May 28, 1991, and upon motion of the defendants, the case was continued from June 3,1991, until September 16, 1991. At the hearing on this motion, counsel for Mr. Scroggins said that he wanted the continuance to investigate Mr. Cains’ criminal record and to allow for independent testing of the drugs. The time was charged to the defense at their request. As counsel for Scroggins stated, “I think it’s the State’s fault for us having to ask for this continuance; but I would ask a continuance at this time charged to us.”
Upon motion of the defendant, a second order of continuance was granted on October 15, 1991, continuing this case from October 30, 1991 until January 27, 1992. In his brief, Mr. Scroggins contends that the delays were not his fault because the prosecutor failed to cooperate with discovery requests.
It is true that once the appellant presents a prima facie case of violation of speedy trial, the burden shifts to the State to show that the delay is the result of the appellant’s conduct or otherwise justified. Meine v. State, 309 Ark. 124, 827 S.W.2d 151 (1992). Here, however, the continuances were at the specific request of Mr. Scroggins and were properly documented of record. Therefore, the State has shown that the continuances were excludable, and accordingly, there is not a speedy trial violation. While Mr. Scroggins contends that the continuances resulted from the State’s failure to comply with discovery, we have previously discussed and dismissed his discovery arguments.
Affirmed. | [
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George Rose Smith, Justice.
In appealing from a conviction and 21-year sentence for murder in the second degree, the appellant contends only that the State should not have been allowed to introduce a photograph of the decedent’s face, taken by the doctor who performed an autopsy to establish the cause of death. The photograph was clearly relevant. The doctor could not positively identify the decedent by name; so the photograph was used to enable another witness to identify the dead body as that of the decedent. It is now argued that the defense did not question the decedent’s identity, but even so the State had the burden of proving that fact beyond a reasonable doubt. We may add that there is nothing about the photograph that can fairly be said to be of a gruesome or inflammatory nature.
Affirmed.
Harris, C.J., not participating. | [
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Jack Holt, Jr., Chief Justice.
Appellant Conley Transport, Inc. (Conley), is a White County trucking company. Appellee Great American Insurance Companies (Great American), is the insurer of Conley Transport under a truckers physical damage policy. This policy only covered physical damage to Conley’s trucks.
On November 4, 1990, Conley’s driver was in a wreck in Oklahoma with Todd Bridson, who was insured by Farmers Insurance Group (Farmers). Conley sustained physical damage to its truck of $17,143.67 and $18,500.00 in lost net income from the truck being out of use for two and one-half months.
Great American paid Conley $14,068.37, or $17,143.67 less the deductible and other adjustments for physical damages to its truck. Conley settled for an additional $10,000.00 in monies from Mr. Bridson’s insurer, Farmers. This payment represented Bridson’s maximum amount of coverage. In exchange, Conley executed a release discharging Mr. Bridson “from any and all rights, claims, demands and damages of any kind, known or unknown, existing or arising in the future, resulting from or related to property damage arising from” the accident.
Mr. Bridson filed a negligence action on October 21,1991, in Oklahoma against the State of Oklahoma, Duit Construction, Inc., and Action Supply Company, for injuries to himself and a daughter and for the death of another daughter, all passengers in the wrecked car.
On December 23, 1991, Great American filed suit against Conley seeking reimbursement for the $14,068.17 it paid Conley since Conley had accepted $10,000 from Farmers and not paid it to Great American in contravention of its subrogation clause and because Conley wrongfully signed a release preventing Great American from pursuing responsible parties. Conley assigned its rights in connection with the Oklahoma lawsuit to Great American on February 21, 1992.
After a bench trial the court entered a judgment in favor of Great American for $14,068.37 plus taxable costs, finding that Conley had breached the terms of its insurance contract by executing the release, by effectively depriving Great American of its rights of subrogation and by failing to protect Great American’s rights.
We disagree with the trial court and reverse its judgment.
The language of Great American’s “TRUCKERS PHYSICAL DAMAGE POLICY” reads in part:
If we make any payment, we are entitled to recover what we paid from other parties. Any person to or from whom we make payment must transfer to us his or her rights of recovery against any other party. The person must do everything necessary to secure these rights and must do nothing that would jeopardize them.
The proof of Loss Form which Conley submitted to Great American stated:
The insured hereby subrogates the said company to all rights and causes of action the said insured has against person, persons, or corporations whomever to the extent of amount claimed above for damages arising out of or incident to said loss or damage to said property.
(Emphasis ours.)
The truckers’ physical damage policy is physical damage insurance which only obligates Great American to pay for physical damages to Conley’s truck and it is obvious from an examination of Great American’s proof of loss form, executed by Conley, that payment to it of some $14,068.37 was payment of the “whole loss” to his property, i.e. damage to his 1991 Kenworth truck, nothing more.
This being the case, a fair reading of these documents reveals that Conley’s policy with Great American merely encompassed payments of monies for the physical damage to the truck. And for this reason, Great American’s subrogation claim for recovery against other parties for damages arising out of or incident to the loss or damage to Conley’s property is limited to a claim for reimbursement on monies paid for damage to the truck. Conley’s settlement with Farmers, for which a release was executed, was not for damages to its truck, but was for “damages resulting from or relating to his property damage” as stated in its release. It is obvious to us that settlement with Farmers for $10,000.00 was not a double payment to it for property damage to the truck, but rather was payment toward the alleged $ 18,500.00 Conley claims in lost net income which resulted from the fact that the damaged truck could not be utilized until the appropriate repairs were made.
Thus, we conclude that by executing this release, Conley did not deprive Great American of its right of subrogation against third parties for recovery for property damages only. We have long recognized the first rule of interpretation of a contract is to give to the language employed the meaning which the parties intended. First Nat’l Bank of Crossett v. Griffin, 309 Ark. 164-1, 832 S.W.2d 817 (1992); Green v. Ferguson, 263 Ark. 601, 567 S.W.2d 89 (1978); C & A Constr. Co., Inc. v. Benning Constr. Co., 256 Ark. 621, 509 S.W.2d 302 (1974); Lee Wilson & Co. v. Fleming, 203 Ark. 417, 156 S.W.2d 893 (1941). This rule applies equally to insurance contracts:
In American Homestead Ins. Co. v. Denny, 238 Ark. 749, 384 S.W.2d 492 (1964), we reiterated:
It is the duty of the Courts to construe the language [in an insurance contract] used by the parties and such construction is performed by considering the sense and meaning of the terms which the parties have used as they are taken and understood in their plain ordinary and popular sense.
Southern Farm Bureau Casualty Ins. Co. v. Williams, 260 Ark. 659, 662, 543 S.W.2d 467, 468-9 (1976). See also Universal Sec. Ins. Co. v. Ring, 298 Ark. 582, 769 S.W.2d 750 (1989).
In short, we cannot agree with the trial court that Conley breached the terms of its insurance contract by executing the release with Farmers or that Conley has effectively deprived Great American of its subrogation or has failed to protect Great American’s rights. With regard to the latter, it is noted that Conley has assigned its rights to Great American in connection with an Oklahoma lawsuit and has agreed to cooperate fully with Great American toward the end of asserting its subrogation rights.
For these reasons, we reverse the findings of the trial court.
Glaze and Brown, JJ., concur. | [
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George Rose Smith, Justice.
Charged with first degree murder, the appellant Hill was convicted of second degree murder and was sentenced, as a habitual offender, to imprisonment for 26 years. He argues two points for reversal.
It is first contended that the trial court erred in allowing the State to introduce hearsay evidence. Hill and the decedent, Coy Daniels, had been neighbors in Dallas, Texas. In September, 1972, Hill, with his own family and three of Daniels’ children, moved to North Little Rock, where Hill rented a house. A day or two later Daniels came to North Little Rock and drove to Hill’s house at about four o’clock in the morning. When Daniels was seen, someone turned off the lights inside the house; but Daniels walked in the front door and turned on a light in the living room. Within a few moments Hill shot and killed Daniels, with a shotgun. Hill’s theory of the case was that he acted in self-defense.
The State called as a witness Mrs. Joel Lester, who had known the Daniels family in Dallas before she moved to North Little Rock. The court permitted Mrs. Lester to testify that at about 7:30 or 8:00 o’clock on the evening before the homicide Daniels had telephoned Mrs. Lester (apparently from Dallas) and had said that he was going to come and get his children and put them back in school.
Mrs. Lester’s testimony was admissible, as tending to show that Daniels’ mental state was not one of hostility toward Hill when Daniels went to Hill’s house. We have admitted similar statements by the victim of a homicide as part of the res gestae. Sullivan v. State, 171 Ark. 768, 286 S.W. 939 (1926); Spivey v. State, 114 Ark. 267, 169 S.W. 949 (1914). It is really more accurate to say that such statements are admissible as an exception to the hearsay rule. Morgan, Statements Evidencing Mental Condition, 3 Ark. L. Rev. 182 (1949). By analogy, our rule is that when self-defense is in issue, the victim’s uncommunicated threats against the defendant are admissible to show who was the aggressor. Decker v. State, 234 Ark. 518, 353 S.W. 2d 168, 98 A.L.R. 2d 1 (1962); Wilson v. State, 184 Ark. 252, 42 S.W. 2d 378 (1931). Since the accused may prove such uncom-municated statements to show an attitude of hostility, the State may prove uncommunicated statements, such as that made to Mrs. Lester, to indicate a peaceful intention.
We pass to the appellant’s second contention. Hill, testifying in his own defense, admitted three earlier felony convictions. The State’s attorney, in responding to an objection made to his cross-examination of Hill, said to the court: “Your Honor, he has testified that he has been convicted of three felonies, and I intend to show quite a few more things.” The court sustain ed defense counsel’s objection to the State’s line of questioning.
Defense counsel then asked for a mistrial on the ground that the State’s attorney should not have referred to “quite a few more things.” In denying the motion for a mistrial the court said, apparently to the jury: “I don’t [know] what the statement is that, by the Prosecutor, that he intends to show quite a few more things. You’ll disregard that, because I don’t know what he had in mind. There’s some ambiguity there, but you’ll disregard that statement because it shouldn’t have been made but I don’t think it’s prejudicial because he doesn’t say anything.” When defense counsel pressed his motion for a mistrial the court again made substantially the same statement to the jury.
It is now insisted that the court should have granted a mistrial and that the error was compounded by the court’s statement that “I don’t think it’s prejudicial because he doesn’t say anything.” We find no reversible error. A mistrial should not be granted unless the error is so prejudicial that justice could not be served by a continuation of the trial. Back v. Duncan, 246 Ark. 494, 438 S.W. 2d 690 (1969). This case does not fall in that category. Since the prosecutor’s remark conveyed no information to the jury about the other things that counsel intended to show, we think the court’s admonition that the remark be disregarded was sufficient to correct the error. The court’s additional statement was of course not a comment on the evidence, since the incident involved only a statement by counsel. We consider the court’s remark, that the statement was not prejudicial because he doesn’t say anything, to have been an accurate summation and certainly not so detrimental to the accused as to call for a mistrial or a reversal here.
Affirmed.
Harris, C.J., not participating. | [
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J. Fred Jones, Justice.
Mary E. Williams filed a claim for workmen’s compensation benefits and her claim was denied by the Commission. The denial was affirmed by the circuit court. On appeal to this court Mrs. Williams contends that there was no substantial evidence to sustain the Commission’s denial of her claim and that is the only question now before us.
It is apparent from the record that Mrs. Williams had been employed as a practical nurse at the Arkansas Nursing Home for about eight years and was 59 years of age on February 22, 1970, when her alleged injury occurred. Mrs. Williams testified that on February 22, 1970, she was helping to lift a patient at the nursing home and she experienced a sharp pain in the small of her back. She said the pain ran down her leg. She said she went to Dr. Price, a chiropractor; that after the first adjustment she felt better and concluded that she could return to work and did return to work on May 10, 1970. Mrs. Williams said she continued to work until May 14 when she had to quit work because of her inability to bear weight on her leg. She said she called Dr. Cornett who referred her to Dr. Ashley Ross. She said she was seen by Dr. Ashley Ross and was referred by him to the orthopedic clinic of the University of Arkansas Medical Center. She said that she had previously injured her back while lifting another patient in November, 1969, and that her back continued to bother her from that injury up until her injury on February 22, 1970. She said an injury report was made out by the supervisor at the hospital on the November, 1969, injury but not on the February, 1970, injury. She stated, however, that an accident form was filled out in July, 1970, by the hospital supervisor, Mrs. Keathley, directed to Colonial Life and Accident Insurance Company setting out the claim for injury on February 22, 1970. She testified that she was seen regularly by Dr. Price from some time in April, 1970, through November, 1970; that she quit going to him for chiropractic adjustments because she was unable to pay for his services.
Dr. Toney B. Price testified that he first saw Mrs. Williams on April 27, 1970, at which time Mrs. Williams complained of severe pain in the lower back and right leg which she attributed to lifting a patient at the Arkansas Nursing Home on February 22, 1970. He testified that he treated Mrs. Williams from April 27, 1970, until November 2, 1970, at which time she quit coming to see him, and at which time she owed a clinical bill of $552. He said that Mrs. Williams did not mention a back injury in 1969 but denied any previous injury. He said he diagnosed Mrs. Williams’ condition as subluxation of the 4th and 5 th lumbar vertebrae; that in his opinion the condition was not the result of an old injury but could be attributed to lifting the patient on February 22, 1970.
Several medical reports were submitted in evidence. Under date of November 23, 1971, Dr. Price reported that when he first saw Mrs. Williams on April 27, 1970, she was complaining of severe pain in the lower back, right groin and thigh which she attributed to lifting a patient in the course of her employment in 1970. Dr. Price reported that when he first saw Mrs. Williams, she was walking on crutches with a severe limp and inability to bear any weight on her right leg. He said his examination revealed a subluxation of the 4th and 5 th lumbar vertebrae with nerve pressure at these points, muscle spasm of the erectorspinae muscles bi-laterally and diminished patella reflex of the right knee. He reported that after chiropractic adjustments Mrs. Williams obtained some relief and was able to walk without crutches, but was unable to resume her regular duties when last seen on November 2, 1970. He reported that he again examined Mrs. Williams on November 16, 1971, and found no change in her condition.
Dr. Ashley S. Ross reported he first saw and examined Mrs. Williams on March 2, 1970, at the request of Dr. James K. Cornett, her family physician. He said she was complaining of right hip and right leg pain. He stated that Mrs. Williams advised him she noticed the onset of her right hip and right leg pain while working at the Arkansas Nursing Home approximately five or six days before he saw her; that she stated the pain started in the groin area, but at the time he saw her, the greater portion of the pain was laterally around the trochanteric area and down the right lateral thigh with continued pain in the groin area. He said that upon examination there was marked tenderness of the trochanteric bursa area and his diagnosis was “right trochanteric bursitis” as well as a tentative diagnosis of bursitis around the right hip joint.
Dr. Ross reported that Mrs. Williams returned on two subsequent visits and was given injections and also prescribed oral medication, but was still complaining of pain in the right groin and the right hip when last seen by him on March 17, 1970, at which time he referred her to Dr. Woodbridge Morris for further diagnostic studies. He said that x-rays of the pelvis and hip joint and sacroiliac joints did not reveal abnormalities either in the bone or joint structures. His final diagnosis was stated in his opinion as follows:
“Mrs. Mary Williams had a right trochanteric bursitis which responded fairly well to medication and injections. She had pain in the right groin which was not diagnosed and was most probably due to some type of pelvic pathology.
She was referred to Dr. Woodbridge Morris for further diagnostic studies.”
Drs. A. Zand and Georgell Chambers of the University of Arkansas Medical Center Orthopedic Clinic, reported under date of March 24, 1970, that Mrs. Williams was referred to them by Dr. Ashley Ross for a complete physical and laboratory workup. Their report recites a history of a ruptured kidney on the right side which was operated about 16 years ago, also ovarian cyst when 18 years of age which was removed; appendicitis and a cystic lesion which was removed 10 years ago. They reported no limitation in the right hip motion except in certain position when the pain “can catch her.” These doctors reported they would like to see Mrs. Williams again in about a week for further laboratory examinations and Mrs. Williams was advised to use crutches. Under date of March 51, 1970, Drs. Duncan and Chambers reported that the crutches with nonweight bearing on the right completely relieved the pain or symptoms, but that Mrs. Williams reported that when she failed to use the crutches she continued to have some pain in the area of the adductors on the right, which the doctors concluded might be due to adductor strain.
On April 14, 1970, Dr. Duncan reported that he had been following Mrs. Williams’ progress as to her complaints of tenderness and pain in the adductor region of the right leg, but that on his April 14 examination, she had tenderness in the lower abdomen more marked on the right side just lateral to the midline, and was also tender in the right perineal area with greatest tenderness in the perineum and in the lower abdomen. He recommended a complete gynecological examination by the General Surgery Clinic.
Under date of May 31, 1972, Dr. Charles N. McKenzie reported that he examined Mrs. Williams on that date. He found the Lasegue’s signs negative but found that Mrs. Williams did have pain in her right thigh. He found tenderness in the femoral triangle and along the adductor origin. He found the peripheral pulse depressed with a stocking or sock-like decreased sensation about the right ankle and foot. He found some x-ray abnormalities in the thoracic or dorsal spine, but as to the right femur and lumbar spine, he reported as follows:
“AP and lateral views of the right femur do not show any significant abnormalities.
The AP view of the lumbar spine reveals alignment is good. The sacroiliac joints are well preserved. There are metallic sutures in the region of the right kidney.
The lateral view of the lumbar spine reveals a slightly exaggerated lordotic curve. The intervertebral disc spaces are well preserved. The vetebral bodies are well preserved. There is some very minimal anterior at the L5-S1 level. She does have a moderate degree of calcification which appears to be in the region of the lower abdominal aorta and into the common iliac vessels.
The right and left oblique views do not show any significant over-riding of the facets nor any particular increased sclerosis about the border of the facets.”
Under the heading of “Diagnoses” Dr. McKenzie reports as follows:
“(1) Osteoporosis, rather advanced.
(2) Old compression deformity, T6, with residual mild kyphoscoliosis. (With the history she describes, I do not feel this was incurred with the episode she describes, since her symptoms were not in this area at this time and there is no localized tenderness in this area.)
(3) Status, post-operative, repair (R) kidney; partial hysterectomy.
(4) Hypercholesterolemia.”
Dr. McKenzie concluded his report as follows:
“This patient has some symptoms which are rather acute and appear to be valid complaints and I am most suspicious of whether or not she may have a small femoral or internal obturator tear with her symptoms being along the course of the femoral triangle and along the obturator nerve.
This patient’s osteoporosis certainly could contribute to her pain in that senile osteoporosis in itself may be painful.
I am not able to demonstrate any instability of the sacroiliac joints of symphysis pubis.
In view of the fact also that the femoral pulses are not very well palpated and I am not able to demonstrate the pulses about the ankle, I would feel at this time that an evaluation by a general surgeon who is also familiar with vascular testing would be in order to make sure this patient has not sustained a nernia [sic] in one of the areas described.”
There is substantial evidence in the record before us that Mrs. Williams does have some disability in connection with the use of her right leg. The question before the Commission was whether the pain and disability suffered by Mrs. Williams were caused by an accidental injury sustained to her back while she was employed at the Arkansas Nursing Home. We agree with the appellant’s argument that reasonable doubts entertained by the Commission should be resolved in favor of Mrs. Williams, but the question before the circuit court, and this court on appeal, is whether there was any substantial evidence to sustain the Commission’s finding that Mrs. Williams’ disability was not caused by an accidental back injury sustained in the course of her employment by the Arkansas Nursing Home. We conclude that there is substantial evidence in the record to support the Commission’s finding.
It goes without saying that the burden was on Mrs. Williams to prove her disability was caused by the injury she says she sustained while employed at the nursing home. Mrs. Williams was the only one who testified as to an accidental injury, but she testified that she did feel pain in her back as she helped lift a patient on February 22, 1970, and that the pain persisted until she was examined by Dr. Price on April 27, 1970. Dr. Price was of the opinion that Mrs. Williams had a subluxation of the L-4 and L-5 vertebrae resulting in her disability and attributable to the injury as testified by her. Had this been the only evidence in the record, we could easily say there was no substantial evidence to sustain a Commission finding that such accident did not occur or that such disability did not result. But to reach such conclusion on the record before us, would require us to invade the province of the Commission and say the Commission erred in not accepting Dr. Price’s diagnosis and medical opinion in preference to the diagnoses and opinions of Drs. Cornett, Ross, Zand, Morris, Chambers, Duncan and McKenzie.
This appeal does not present the question of whether there was substantial evidence that would have sustained the Commission in different findings than those made, but the question on appeal is whether there was any substantial evidence to support the finding the Commission did make. Brower Mfg. Co. v. Willis, 252 Ark. 755, 480 S.W. 2d 950; Wilson Lbr. Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487. The Commission had a perfect right, as a jury would have had, to accept the medical diagnoses and opinions of Drs. Ross and McKenzie to the effect that Mrs. Williams’ difficulties in her right leg are due to bursitis as opinioned by Dr. Ross, or to the osteoporosis and circulatory complications as indicated by Dr. McKenzie.
The judgment is affirmed.
Harris, C.J., not participating. | [
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Lyle Brown, Justice.
The appellants in this case are five officials of the city of North Little Rock: the finance director, the purchasing agent, the clerks of the municipal courts, and the dty clerk. The appellees are the members of the Pulaski County Law Library Board and of the Arkansas Bar Foundation, the latter being an intervenor. The action arose as a result of the passage by the North Little Rock Council of an ordinance prohibiting the collection of court costs imposed by two Acts of the General Assembly, Acts 685 and 284 of 1971. Those Acts imposed a tax of $1.00 to support a county law library and $1.00 towards a law library building. The ordinance substituted a tax of $1.00 in cases processed in North Little Rock Municipal Courts to go into a North Little Rock law library book fund to be administered by a municipal law library board. The trial court issued a writ of mandamus sought by appellees which directed appellants to disregard the city ordinance and to comply with the State Acts heretofore described. The contentions on appeal are (1) that the city council properly repealed the two Acts of the General Assembly, that action being permitted by Act 266 of 1971, and (2) a mandamus was improper because it compelled the appellants to perform legal duties of a discretionary nature.
The three Arkansas Acts above mentioned are of course directly involved in this appeal and a more detailed description of them should be helpful:
1. Act 266 of 1971 which has been codified as Ark. Stat. Ann. § 19-1042 et seq. (Supp. 1971). Subject to restrictions in enumerated fields, cities of the first class are given certain legislative powers over municipal affairs. It is sometimes referred to as the “Home Rule Act”.
2. Act 284 of 1971 which has been codified as Ark. Stat. Ann. § 25-504 et seq. (Supp. 1971). It authorizes the charging of $1.00 court costs per case in all counties for a county law library. If the Act is implemented by the county bar association and by the county court order the collection becomes mandatory. This Act is sometimes referred to as the “Book Fund Act”.
3. Act 685 of 1971 which has been codified as Ark. Stat. Ann. § 25-508 (Supp. 1971). The Act authorizes the charging of $1.00 court costs in all counties having a population of at least 84,000 for a county law library building. If the Act is implemented by the county bar association and by the county court order the collection becomes mandatory. This Act is sometimes referred to as the “Building Fund Act”.
North Little Rock is of course located in Pulaski County. It is undisputed that both the Book Fund Act and the Building Fund Act have been properly implemented by the appropriate bar association and by the county court.
We first deal with appellants’ argument that North Little Rock, acting under Act 266, the Home Rule Act, properly repealed Acts 284 and 685, the Book Fund Act and the Building Fund Act. We cannot agree with appellants. In the first place, the legislature is prohibited by our constitution from delegating such authority of repeal. “No municipal corporation shall be authorized to pass any law contrary to the general laws of the State . ” Art. XII, § 4. McLaughlin v. Retherford, 207 Ark. 1094, 184 S.W. 2d 461 (1944); Morrilton v. Comes, 75 Ark. 458, 87 S.W. 1024 (1905); State v. Lindsay, 34 Ark. 372 (1879). Secondly, the Book Fund Act and the Building Fund Act were approved subsequent to the Home Rule Act. The legislature certainly did not, and could not constitutionally, surrender its inherent power to repeal or modify prior legislative acts on the subject. The effect of our constitution is to make Arkansas a legislative home rule state as compared to those few states known as constitutional home rule states because home rule is provided in their constitutions. Since we are a legislative home rule state our legislature possesses plenary power over the municipalities. See 1 Antieau, Municipal Corporation Law, § 3.08 (Supp. 1973); and Hobart v. Duvall, 297 A. 2d 667 (N.H. 1972).
Appellants next contend it was error to issue a writ of mandamus because the writ is not appropriate when it involves duties of public officials which are of a discretionary nature. We find no merit in the argument. In view of the fact that some costs might not be collected— due to the fact that the trial court might suspend the fine and costs, or permit the defendant to work out the penalty — § 25-505 (1) provides that the county or municipality would not be liable for those costs which were not collected. That provision did not vest discretionary powers in the officers who are appellants; it was simply an exemption in those situations and in favor of the county or municipality in cases wherein the costs are not collected.
In their reply brief appellants make the assertion that Acts No. 284 and 685 of 1971 are special acts within the meaning of amendment No. 14 to the Arkansas Constitution. As best we can tell from the abstract the point was raised for the first time on appeal and in the reply brief. Ordinarily we would not consider the point; however, its merit was discussed in oral argument by both sides, so rather than ignore the point and cast an aura of doubt as to how the point, if properly raised, would have affected this litigation, we have no hesitancy in saying the contention is without merit. Whittaker v. Carter, 238 Ark. 1074, 386 S.W. 2d 498 (1965).
Affirmed.
Fogleman, J., not participating. | [
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Frank Holt, Justice.
The appellant was convicted by a jury of two counts of aggravated robbery (Ark. Stat. Ann. § 41-2102 [Repl. 1977]) and one count of first degree battery (Ark. Stat. Ann. § 41-1601 [Repl. 1977]). The jury fixed punishment at 15 years imprisonment for each count of aggravated robbery and 12 years for first degree battery. The court ordered that the sentences run consecutively. The appellant argues two points for reversal. We affirm.
The appellant first contends that there was insufficient evidence to support the verdict. On appellate review we seek to determine whether the verdict is supported by substantial evidence, which means whether the jury could have reached its conclusion without having to resort to speculation or conjecture. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). In determining the sufficiency of the evidence, it is necessary to ascertain only that evidence favorable to the appellee, and it is permissible to consider only the testimony that tends to support the verdict of guilt. Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1970); Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). The credibility of the witnesses and the weight to be given their testimony are for the jury. Sanders v. State, 276 Ark. 342, 635 S.W.2d 222 (1982). Where the testimony is conflicting, this court does not pass upon the credibility of the witnesses and has no right to disregard the testimony of any witness after the jury has given it full credence. Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975).
Viewing the evidence most favorable to the appellee, the state adduced the following. Thomas Foltz, then a student at Central High School in Little Rock, accompanied Holly Herndon to Central’s football game on the night of October 9, 1981. After they left the game, they returned to Foltz’s car, which was parked in front of a house at the corner of Thirteenth and Dennison. After Foltz had seated Herndon on the passenger side and began to walk around the car, two black males approached, pulled guns, and stated, “We want it all.” The assailants were in a yard ten or twelve feet away when Foltz first saw them. Foltz gave them money from his wallet and his watch, and Herndon gave them two rings. One of the assailants then fired a shot that narrowly missed Foltz’s head and wounded Herndon. Another shot was fired into the car.
Foltz testified that the assailants were similar in size and build to the appellant and the codefendant. However, neither he nor Herndon could positively identify either one of them. Lisa Elliot, a student at Central, testified that she had known the appellant as a fellow student during the preceding school year. She saw him and another person following Foltz and Herndon to their car. A short time later she saw appellant and another person when they ran in front of her and “bumped” her date, who did not testify. She said, “‘What’s going on?’ And they kept on going.” She did not see the robbery. She received $500 as reward money. Carlos Brodie, appellant’s acquaintance, testified that when he drove through the street where and about the time the shooting occurred, he saw the appellant in that area. Mark Moore, who knew the appellant, testified that he saw the appellant twice on the evening of the shooting, once about dusk and a second time when he saw the appellant leaving the game. He also testified at a pretrial hearing that he saw the appellant in a pool hall sometime after the shooting and heard him brag, “I should have shot that redneck in the head.” Although at trial, Moore stated that he could no longer remember the events to which he had testified 13 days earlier at the hearing, he did remember giving the recited testimony. Appellant denied any complicity in the robbery and shooting. He maintained that he was not in the vicinity of Central High School at any time on the day of the shooting and was attending the Arkansas State Fair. Numerous witnesses testified in support of appellant’s alibi by placing him at the State Fair during the entire afternoon and evening when the shooting and robbery occurred. Appellant and his brother testified that appellant had not been a student at Central the preceding year in contradiction of a portion of Elliot’s testimony. Appellant denied that he had ever been in the pool hall where Mark Moore saw him.
Although the evidence connecting the appellant to the crime is circumstantial, the law makes no distinction between direct evidence of a fact and evidence of circumstances from which a fact may be inferred. Cooper v. State, 275 Ark. 297, 628 S.W.2d 324 (1982). In Harshaw v. State, 275 Ark. 481, 631 S.W.2d 300 (1982), we unanimously found substantial evidence to support an aggravated robbery conviction where the appellant was placed at the scene of the robbery immediately before and after it occurred, and his conduct was explainable only in connection with it. Here, Lisa Elliot, whom the jury was entitled to believe, saw the appellant following the victims and shortly thereafter running away from the scene of the crime. Carlos Brodie placed him near the scene of the alleged offense. Mark Moore saw him before the game and also leaving the game and heard him make incriminating remarks about the alleged offense. Each of these witnesses contradicted appellant’s alibi defense.
A j ury’s finding on an alibi defense is conclusive on that issue. McCraw v. State, 262 Ark. 707, 561 S.W.2d 71 (1978); and Butler v. State, 198 Ark. 514, 129 S.W.2d 226 (1939). Reconciling conflicts in the testimony and weighing the evidence are within the exclusive province of the jury, and it is the jury’s prerogative to accept such portions of the testimony which it believes to be true and discard that deemed false. Houpt v. State, 249 Ark. 485, 459 S.W.2d 565 (1970); Sanders v. State, supra; and Barnes v. State, supra. Here, viewing the evidence most favorable to the state, as we must do on appeal, we hold there is substantial evidence to support the jury’s verdict.
The appellant asserts that the trial court erred in sentencing the appellant in that it abused its discretion in weighing aggravating and mitigating factors. He argues that the trial court should have granted his request to have a pre-sentence report prepared before entering sentence. The only authority for pre-sentence investigation in our criminal code is Ark. Stat. Ann. § 41-803 (Repl. 1977), which states that the court “may” order a pre-sentence investigation, if it fixes punishment. We find no authority requiring the court to do so here.
Affirmed.
Purtle, J., dissents. | [
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Butler, J.
At a point on highway No. 64, connecting Van Burén with Alma, two miles from the first named city, the highway is surfaced with concrete eighteen feet wide, spaces being on either side between the concrete and ditches four or five feet wide, called shoulders. At this point the highway is straight for a half mile or more. About midnight on October 12, 1929, two women and a young man were traveling east in a one-horse buggy. "When they reached the point above described, the young man, who was seated on the left, drove the buggy to the extreme right of the highway with the right wheels well out on the shoulder and stopped the buggy for the purpose of alighting and proceeding to his home nearby, it being the purpose of the women to continue further east in the buggy to their homes. Just as the man reached the ground a Ford coupe, also traveling east, struck the buggy violently from the rear demolishing it, killing the horse and severely injuring the man and the women. There were four persons in the Ford coupe, two men and two women. After striking the buggy the Ford continued on without pausing for some further distance. One or two persons followed in another car which had appeared on the scene and overtook the Ford coupe a short distance away as it was turning around, and from there followed it back, passing the point of collision and into Van Burén, where the driver was stopped and arrested. It was then discovered that the car belonged to the appellants, and the driver was one Duckworth, who was their employee.
Out of the occurrence above narrated has arisen this litigation which resulted, on a consolidation of the cases in the court below, in a verdict for each of the parties injured. From that verdict and judgment is this appeal.
It was and is the theory of the appellees that the driver was negligent in driving his car off the concrete and along the shoulder of the highway and in failing to keep a proper lookout ahead, and that this negligence was the direct efficient cause of the collision. The appellants’ (the employers of Duckworth) liability is predicated on the theory that the driver, Duckworth, was their servant, and his negligence occurred, from which the injury resulted, while he was engaged in the service of his masters. Appellants defended on the ground that Duck-worth was in the exercise >of due care at the time of the collision, and that this occurred because of the contributory negligence of the appellees in traveling at night without a light on their buggy and in stopping same on the side of the highway Avithout having a light attached to it in the manner and of the kind required by the highway traffic statutes. As a further defense, appellants contend that while Duckworth was in their employ and the automobile used by him was their property and given to him for use in their service, at the time of the collision he was on a mission purely personal to himself, and in no way connected with the discharge of any service or duty for them.
At the trial testimony was introduced by appellees relative to the pursuit and capture of Duckworth over the objection and exceptions of the appellants. The admission of this testimony is here assigned as error. At the time of its admission the court limited its consideration solely to the purpose of identification of the car and its driver and admonished the jury not to consider it for any other purpose. If the driver’s conduct in failing to stop at the scene of the collision and continuing on until forced to stop was no part of res gestae and inadmissible as tending to establish his want of care, it was clearly competent for the purpose to which it was limited by the court, even though the identification might have been established by other evidence. The admission of this testimony Avas therefore not error.
The physician who treated Stephens (the man who was injured) when he was first carried to the hospital testified as to the character and extent of the injuries. He stated that they were of a painful and serious nature and gave it as his opinion that the skull was fractured at the base, and from this and the accompanying symptoms he concluded the injuries might occasion insanity, epilepsy, or death. At the time of his testimony he had not seen Stephens since he left the hospital some months before. Stephens had testified that his ear was still discharging pus, and the physician testified that, if this were true, Stephens’ condition was still serious. On cross-examination the physician stated that he did not know what the final outcome of the injuries would (be, and that he did not mean to state what his condition might or might not be later; that possibly none of the results he anticipated and to which he testified might occur. At the conclusion of the physician’s testimony the appellant stated to.the court: “As I understand Dr. Taylor’s tesr timony, he is not willing to state the conditions and extent of the injuries to Stephens or even a probability, but that it is merely a possibility and may not happen. Therefore we move to exclude all of the testimony of Dr. Taylor in so far as that is concerned.” This motion was overruled, and appellee excepted and here urges the action of the court as reversible error, and in support of their position cite and rely on the case of St. L. I. M. & S. R. Co. v. Bird, 106 Ark. 177, 153 S. W. 104. In that case the court held that the testimony of the physician was too vague and uncertain to be a sufficient basis upon which the jury might assess damages for permanent injury. In holding the evidence insufficient, the court said: ‘ ‘ The testimony, viewed in its most favorable light in favor of the appellee, does not make it reasonably certain that Wharton Bird was permanently injured. Unless there is testimony tending to show with reasonable certainty the injury is permanent, the court should not permit the jury to assess damages for a permanent injury.'” The court, by its instruction No. 9, in effect eliminated the testimony of Dr. Taylor regarding possible future conditions and permanency of the injury, but the appellants contend that the instruction did not cure the vice inherent in the court’s action in refusing to eliminate the doctor’s testimony in these particulars entirely from the consideration of the jury. But the doctor had testified positively to the condition of Stephens when he was brought to the hospital that he was unconscious and remained so for about five days, suffering and bleeding from the left ear and a fracture at the base of the skull, and that any injury of this character was serious. He remained at the hospital until his doctor’s bill and hospital fees amounted to $197.60. The testimony of Dr. Taylor in this case is distinguishable from that of the physicians in the Bird case, supra, in that the physicians in that case did not testify as to any physical injury. Their testimony, and the opinions they gave, were based on a history of the case and on certain symptoms they observed in the person injured after the alleged injury. One of them testified: “I do not find any physical injury about him. You have to take the whole assembly of symptoms together with a history of the case to find out whether you have a case of traumatic neurasthenia. I cannot say that he had a single symptom pointing to a permanent injury.” Another physician also testified' only from symptoms observed subsequent to the alleged injury, and in concluding his testimony he said: “Taking this child’s case, I could not say that the probabilities of its recovery are greater than that it will not recover in a reasonable time. It is a doubtful case. I would not be sure that it is permanent or not. ’ ’ And the court, in commenting on this testimony and in holding that it of itself was insufficient and a matter of speculation only as to the permanency of the injury, said: “But to fulfill the requirements of the law there must be affirmative testimony to the effect that the injury was permanent before the jury would be authorized to'find that such was the fact, *'*■* where the witnesses themselves áre uncertain as ■' to whether there would be any permanent injury, and where the nature of the injury per se does not show that the injury was permanent.” In the instant case we have the testimony of the physician that Stephens was brought to the hospital bleeding from the left ear, unconscious and remaining so far a long time, and that it was his opinion that the skull was fractured, and that this was necessarily a serious condition. Stephens testified -some months later at the trial that his ear was still discharging pus an;d that he was still suffering great pain. The injury itself speaks and of itself indicates its. permanency, which fact, considered with all the other evidence relating to the injury, we think sufficient to submit that question to the jury.
The jury returned a verdict in favor of Stephens for $3,000. This clearly indicated, in view of the expense to which he had been put, his loss of time and the suffering Which he had endured and was still enduring, that the verdict was uninfluenced by passion or prejudice, and its amount was amply warranted. On these matters alone, without taking into consideration “his future diminished power to earn a livelihood, if any,” as stated in Stephen's ’■ instruction on the measure of damages,' it is reasonable to believe that the admonition of the court in instruction No. 9: “You are instructed that in determining the extent of the injury to either of the plaintiffs you are not to consider any merely possible damages or results or conditions, if any, and you will disregard all testimony-as to any possible future'developments,” was duly considered by the jury and rendered innocuous the admission of the testimony and the reference in the instruction on the measure of damages to- his diminished capacity to earn a livelihood, if any. •
It is further insisted that the court erred in giving .plaintiffs’ requested instructions Nos. 1A and 3A. To both of these instructions certain specific objections were made by the appellee, and the court,, before giving them, modified th'em to meet the objections raised. Therefore there was no error unless the instructions were inherently wrong. By instruction No. 1A the court submitted to the jury , the question as to whether Duckworth operated his car so far to the right of the highway as to .be off the concrete surface and partly on the shoulder, and if so, "Whether the same was negligence causing the injury. It further submitted the question as to whether' in operating the car Duckworth was acting within the scope of his employment under the instructions of the appellants and as their servant and on a mission for them “which was not a mere incidental purpose to the journey.” Instruction No. 3A is identical with No. 1A except the question of negligence submitted was whether Duckworth was negligent in failing to keep a proper lookout. Appellants insist that instruction No. 1A is erroneous because there was no evidence that Duckworth drove his car so far to the right as to be off the concrete and. partly on the shoulder. In this the appellants err. The testimony of several witnesses was to the effect that the wheel marks of Duckworth’s car showed several feet to -the right of the concrete and oh the shoulder before it reached the point where it collided with the buggy.
Further complaint is made that the instruction wholly omitted the question of proximate cause and submitted as the only question whether or not Duckworth negligently operated his car off the concrete highway. In St. L. I. M. & S. R. Co. v. Bird, supra, disposing of a similar complaint, the court, at page 187, said: “The specific ground of criticism is because the instruction does not say that the negligence of appellant must be the proximate cause of the injury. If the injuries resulted from appellant’s negligen.ee, then there is .no question in the evidence ibnt what such negligence was the proximate cause of the injury. Therefore there is no prejudicial error because the instruction did not contain the qualification that appellant insists on. The undisputed evidence shows that the proximate cause of the' injury was the collision of appellant’s train with the appellee’s wagon, and, if this collision was caused by appellant’s negligence, then such negligence was the proximate cause of the injury. ’ ’
In the instant case the fact is undisputed that the appellees were injured by being struck by appellants’ car driven by Duckworth, and there is therefore no question as to the proximate cause of the injuries. Gates v. Plummer, 173 Ark. 27-31, 291 S. W. 816.
It is also insisted that instruction No. 3A is erroneous in submitting to the jury the question of Duckworth’s negligence in failing to keep a proper lookout, since it is undisputed that the buggy carried no lights in violation of the law, and that therefore his failure to keep a lookout would not constitute actionable negligence, as he rested under no duty to keep a lookout for unlighted vehicles and those traveling therein. As authority for this contention the appellants cite the case of Coca-Cola Bottling Co. v. Shipp, 174 Ark. 130, 297 S. W. 856. We cannot agree with the appellants as to the correctness of the rule urged, nor that the case cited supports such view. It is true, that case cites the case of Murphy v. Hawthorne, 117 Ore. 319, 244 Pac. 79, which appears to support the appellants ’• contention; but, from a careful examination of the original opinion in the ;Shipp case and the opinion on rehearing, there appears to be nothing which would support the view that the case of Murphy v. Hawthorne was adopted and approved by this court in its entirety. The most this court decided, and the rule it there laid down was that one driving an automobile at night too fast to stop within the range of his own lights in case of a collision is not guilty of negligence as a mat ter of law, but that each case must be considered in the light of its own peculiar state of 'facts and circumstances, the test being what an ordinarily prudent person would have done under circumstances as they then appeared to exist; and that whether it was negligence to leave a car parked in the nighttime without lights was also not negligence per se but was a circumstance to be considered with the other attendant circumstances in determining whether it was negligence or not. We have frequently held that(violations of the State traffic statutes are merely evidentiary of negligence and not conclusive of the issue]) Pollock v. Hamm, 177 Ark. 348, 6 S. W. 541 ; Maps v. Ritchie Gro. Co., 177 Ark. 35, 5 S. W. (2d) 728. And in the case at bar the failure of appellees to light their buggy was a question for the jury whether under the circumstances Duckworth was, or was not, guilty of negligence in failing to discover the appellees, and whether appellees were guilty of contributory negligence in stopping the buggy without displaying tail lights. These questions were submitted to the .jury under proper instructions. In these particulars the failure to attach lights to the buggy was a matter of proper consideration, but it did not relieve Duckworth from the duty of acting as a reasonably prudent person in the operation of his car and of keeping such lookout as prudence for his own safety and humanity for the safety of others would dictate. We therefore hold that the court did not err in its declaration in this regard.
Appellants complain of the refusal of the court to give a number of instructions requested by them and of modifying other instructions and giving them as modified. We find that the court gave twenty-two instructions at the request of the appellants which fairly presented (and indeed more favorably in some than they were entitled to) appellants’ several defenses, and the instructions refused were either peremptory in their nature or had been fairly covered by those given. We do not set out the several instructions given and refused and refrain from commenting further upon them- because it would serve no useful purpose and would unduly extend this opinion to do so.
The principal question involved in this ease and the one urged as error in the instructions given at plaintiffs ’• request, and upon which its request for a directed verdict was based, is that the testimony fails to show that Duck-worth at the time of the collision was in the .service of his co-appellants, but rather that it shows that he was upon a mission of a purely personal nature and in no wise connected with the' duties of his employment. The testimony may be said to fairly establish the fact.that Duck-worth was- in the -general employ of his company (appellants ),- a partnership engaged in the,-sale of electrical refrigerating devices among- other things, and that it was his duty to repair and keep in proper operation the articles sold by-his employers, in which duty he had been engaged for approximately ten years. For this purpose he was furnished with an automobile and with such tools as were necessary for the performance of his work. He kept the car in his possession, and, while, as a usual thing he was given a half-holiday ,on Saturday, it was his duty, whether called from the office or notified in any other way, to go day or night for the purpose of adjusting or otherwise.keeping the articles sold .by his employers in proper working condition. He frequently would perform these services at different hours of the night and without respect to the day of the week. The-main-question' therefore is, was he engaged -in the service of the master at the time of the collision? Duckworth testified that he was. His employers had sol-cl a Frigidaire — a 'refrigerating device and- its' container — to' an individual at Alma who operated aplace of business where soft drinks and other commodities of like' character were' sold to the 'public?: This place of business .was '-kept - Open- frequently after •twelve-until two O’clock'iñ the night, according to the"re quirements of the trade. The refrigerator had been repaired by Duckworth at some time prior to the night of the accident. The proprietor testified that he was unable to state whether it had. been two months or two weeks before the date of the collision.. Duckworth testified that a young man employed at said place of business at Alma had notified him a few days prior to October 12,-1929, that the Frigida'ire, was not functioning properly, and asked him to come down at his convenience and adjust it. Duckworth stated that this request had passed out of his mind for a time, but that on Saturday night, October 12, 1909, he remembered it, and, as his services' would be -required at other places on the first days of the following week, he decided that he would go to Alma on that night, and, as he knew the method of the conduct of the business there, he reasonably expected the place to be open-after midnight on Saturday. He invited some friends of his to accompany him, and after leaving Van Burén at or about midnight and proceeding on the highway toward Alma for the purpose aforesaid, he ran into and demolished the buggy of appellees without ever having seen it. Although he testified that he was acting with due care at the time of the collision .and that he failed to see the buggy because of the blinding lights of an approaching car and swerved to the right immediately before the collision in an endeavor to. avoid the same, all of the circumstances, as well as the testimony of others, tend to negative his care and caution and to show that his conduct at the time of the collision was grossly negligent.
There' were a number of circumstances tending strongly to rebut the statement of Duckworth regarding his mission on the night in question and to indicate that, under the influence of liquor, he was spending the evening in disporting himself without thought or care for his duties, and that his contention that he' was proceeding to Alma in the service, of his employers was a mere afterthought and perhaps an endeavor to extricate himself from an unpleasant predicament. These matters, however, were questions for the jury, and, while we may think the testimony of Duckworth unreasonable and his statements unworthy of belief, we are not the judges of those matters. If there was any substantial testimony, and we say that there was, the question of the credibility of the witnesses and the weight to be given their testimony is the sole .province of the jury, which we have no authority to override or disturb.
We feel that there was no substantial error committed in the conduct of the trial, and that the evidence was sufficient to submit the questions at issue to the jury, and its verdict must therefore be sustained. The rule announced is so well settled that no citation of authority is warranted.
Affirmed.
Smith, Humphreys and Kirby, JJ., dissent. | [
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George Rose Smith, Justice.
The appellee, Riggins Trucking, is a contract carrier that formerly obtained its insurance from the appellant, Twin City Agency, a local agent for various insurance companies. In 1976 one of Riggins’s trucks, leased for the trip to Willis Shaw Frozen Express, was in an accident in which Shaw’s cargo was destroyed. Riggins’s cargo insurance had been placed by Twin City Agency with Northwestern National Insurance Company, but Northwestern denied liability for the loss.
Riggins paid Shaw the amount of the loss, $32,190.84, and sued Twin City for that sum, asserting that Twin City had been negligent in failing to carry out Riggins’s instructions to arrange with Northwestern to have Shaw named as an additional insured in the policy. Twin City’s liability for negligence was the only issue submitted to the jury, whose verdict was for Riggins in the amount sought. Our jurisdiction of the appeal is under Rule 29 (1) (o).
At the trial all the testimony was directed to the issue of Twin City’s asserted negligence, but Twin City moved for a directed verdict on a different ground, that the loss was actually covered by Northwestern’s policy. The denial of that motion is the basis for Twin City’s principal argument for reversal.
There are at least two reasons why Twin City was not entitled to a directed verdict. First, paragraph 7 of the complaint alleged that after the loss Twin City had told Riggins that the loss was not covered by the policy because Shaw had not been added as a named insured. Paragraph 8 alleged that if Shaw had been added, Riggins would have been liable only for the $500 deductible amount. Twin City’s answer specifically admitted the allegations of both paragraphs, but asserted that the request for the added coverage was not timely. Hence the pleadings admitted that Riggins had coverage if the request was timely, and there was proof that it was. An issue of fact was presented.
Second, Mr. Riggins testified that his company was authorized to carry exempt commodities only, which he described as "produce, chickens, and certain things.” To carry regulated commodities he had to haul them "through somebody like Willis Shaw.” That was evidently the arrangement at the time of the accident, for there was proof that Shaw issued the bill of lading and that the cargo was frozen foods owned by Stouffer Foods Corporation. The policy, however, was evidently limited to exempt commodities, for it covered Riggins’s liability only for the loss of “lawful goods and merchandise consisting principally of poultry, produce, candy, boxed meat, janitorial supplies, patented medicine.” Hence it cannot be said as a matter of law that Riggins had any insurance protection in excess of $500 for the loss suffered. The motion for a directed verdict was correctly denied.
Twin City’s other two arguments fail, for essentially the same reason. Since the court’s action in refusing to direct a verdict was correct, it is immaterial that a wrong reason may have been given. Carolus v. Ark. Light & Power Co., 164 Ark. 507, 262 S.W. 330 (1924). On the same point, when the trial judge refused to direct a verdict at the close of the plaintiff’s case, he also denied defense counsel’s request that he be permitted to argue the matter of coverage to the jury. That ruling was right, because, as we have seen, under the pleadings and testimony the existence of coverage turned upon the timeliness of Riggins’s request and Twin City’s possible negligence in honoring it. Counsel were free to argue those issues.
Affirmed. | [
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Conley Byrd, Justice.
Appellant Artie G. Burnett filed a claim for workmen’s compensation claiming that she was twice injured in the employment of appellee St. Mary’s Hospital in October-November 1970. The October injury was alleged to be a fall down a stairway and the November injury was alleged to have occurred while lifting a bed rail. Before commencement of the hearing before the referee she amended her claim to state that the fall occurred during November and that the bed rail incident occurred in March 1971. The hospital admitted that claimant fell on the stairs in November but denied that her present condition was a result of the fall.
Appellant testified as to the fall and the bed rail incident and stated that her present complaints were a result of those incidents. She stated that she worked regularly from the time she began work in August of 1970 until the date of her fall. She also stated that she previously worked for Russellville Nursing Home and had a good record there. She denied that she had been involved in an automobile accident or that she had hurt her back off the job.
Proof on the part of the treating doctors showed that she had injured her back in her yard while bending over to pick up an egg and that subsequent to the date of the claimed injuries she had been involved in an automobile collision. None of the treating physicians could relate her back problems to her alleged work injuries.
The records from the Hospital and the Hursing Home demonstrated an erratic work history allegedly due to headaches.
The Commission in denying the claim laid much stress upon appellant’s credibility. The circuit- court affirmed the Commission. We find evidence in the record upon which the Commission could have either approved or denied the claim depending upon the credibility of the witnesses. This being true we are unable to say that there was no substantial evidence to support the Commission’s findings. See May v. Crompton-Arkansas Mills, Inc., 253 Ark. 1080, 490 S.W. 2d 794 (1973).
Affirmed. | [
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Jack Holt, Jr., Chief Justice.
Two questions are presented by this appeal: (1) does public policy prohibit a man from seeking to establish his paternity of a child conceived during the mother’s marriage to another party yet born out of wedlock, and (2) is the presumption of the legitimacy of a child conceived during a marriage irrebuttable. The answer to both questions is no.
On April 25, 1986, Dwight Hunter commenced divorce proceedings against appellee Deborah Lynn Hunter. About this time, appellant Russell Jay Willmon allegedly entered into a sexual relationship with Deborah Hunter which continued until June 1986. Subsequently, on July 3,1986, Dwight was granted an uncontested divorce. Deborah Hunter gave birth to a child out of wedlock in February 1987. She remarried Dwight Hunter on April 15, 1987.
On April 24, 1987, Willmon filed a complaint in county court against Deborah Hunter alleging that he was the father of a child born to her on February 3, 1987. He asked that the court determine paternity and award permanent custody of the child to him. On August 13,1987, the county court conducted a hearing. From the pleadings, testimony of the plaintiff, statements and arguments of counsel, the county court found “that it lacks subject matter jurisdiction, and, therefore, plaintiffs complaint in paternity and petition for custody, should be, and is hereby denied.” From this finding, Willmon appealed to circuit court.
On November 19, 1987, the circuit court reviewed the pleadings of the parties, heard arguments of counsel, and dismissed the suit, stating:
(1) The presumption of legitimacy of the child which is the subject of plaintiffs action, is irrebuttable by the facts presented.
(2) It is against the public policy of this state to allow a third party to attempt to illegitimize a child as sought herein.
Willmon appeals to us from the trial court’s order of dismissal.
Ark. Code Ann. § 9-10-104(a) (1987) provides that any man alleging to be the father of an illegitimate child may petition the county court for a determination of the paternity of the illegitimate child. Although Chapter 10 of our Code, which deals with paternity, does not provide us with a definition of the term “illegitimate child,” it is generally conceded that an illegitimate child is a child who is born at the time that his parents, though alive, are not married to each other. Likewise, it has long been a general principle of law that a child is considered legitimate if the parents were married at the time of its conception and before its birth, even though they were not married to each other at the time the child was born. State v. Bowman, 230 N.C. 203, 52 S.E.2d 345 (1949). See also, Madden v. Madden, 338 So.2d 1000 (Miss. 1976). That principle was recognized by our General Assembly when enacting legislation concerning inheritance. The General Assembly declared that “[a] child born or conceived during a marriage is presumed to be the legitimate child of both spouses” for all purposes of intestate succession. (Emphasis ours.) See Ark. Code Ann. § 28-9-209 (1987).
The trial court was wrong in finding that the presumption of legitimacy of a child conceived but not born during marriage, is irrebuttable. Likewise, the trial court erred in holding that it is against the public policy of this state to allow a third party to attempt to illegitimize a child which was conceived but not born during marriage. In fact, one of our more recent cases strongly, suggests to the contrary. In Thomas v. Pacheco, 293 Ark. 564, 740 S.W.2d 123 (1987), Patti Ann Pacheco brought suit to determine the paternity of a child born to her on June 3, 1984. She was married at the time of conception and at the birth of the child to Carlos Pacheco, but claimed that Vincent Thomas was the father. Blood tests indicated that the husband could not be the father and that it was virtually certain (99.5 %) that Thomas was the father. This court did not make mention of irrebuttable presumptions of legitimacy of a child conceived during a marriage or a public policy of this state not to allow a third party to illegitimize a child which was conceived during a marriage. To the contrary, we permitted the parties to litigate the issues of illegitimacy. In doing so we stated “marriage is still considered an honorable institution; children born during marriage should be deemed legitimate, and legal efforts to declare such children illegitimate are not and should not be made easy.” We noted,
Belief in that principle is so great that we have created a legal presumption to protect it. This presumption, that a child born during marriage is the legitimate child of the parties to that marriage, is one of the strongest presumptions recognized by law. [citation omitted] It is rebuttable only by the strongest type of conclusive evidence ....
See Dunn v. Davis, 291 Ark. 492, 725 S.W.2d 853 (1987); Spratlin v. Evans, 260 Ark. 49, 538 S.W.2d 527 (1976).
The same thing can be said with reference to children conceived but not born during marriage; presumptions should work in favor of legitimacy. These presumptions, however, do not preclude a party from litigating the issue of paternity. Moreover, we do not have, nor do we declare, a public policy which would prohibit such litigation.
Since under these facts we are not faced with an irrebuttable presumption, nor a public policy which precludes a determination of the paternity of a child conceived but not born during the mother’s marriage, it is necessary that we reverse and remand this case to the trial court.
Ark. Code Ann. § 9-10-118 (1987) provides that the circuit court shall hear cases de novo and shall render such judgment on appeal from the county court as law and evidence require. Accordingly, the trial court should hear this matter on its merits.
Reversed and remanded. | [
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Butler, J.
In an action in the court of the justice of the peace the Twin City Bank of North Little Bock caused a garnishment to be issued out of that court against the appellee auto company. The writ of garnishment was returned by the constable with his indorsement thereon showing service upon the garnishee, and on the return day, November 8,1929. judgment in the main case was rendered against the defendant, and, the garnishee having failed to appear or answer, judgment was also rendered against it. On the 24th day of March, 1930, a writ of execution was issued against the appellee auto company, whereupon it filed its hill in equity to avoid the judgment and to restrain the appellant from proceeding further thereon. A demurrer was interposed to the bill in equity on the ground that the complaint did not state facts sufficient to constitute a cause of action in equity against the defendant, and that the complaint showed upon its face that the complainant had an adequate remedy at law, and the court of equity was without jurisdiction to hear and determine the controversy. The demurrer was overruled, and, the appellant electing to stand thereon, a decree was entered for the complainant granting to it the relief prayed. From the order overruling the demurrer and the decree of the court, the case is before us on appeal.
The case, as presented by the complaint, is well and briefly stated by the appellant, as follows: “In the case at bar the appellee sought to, and did, enjoin the appellant from enforcing a judgment which had been rendered in favor of the appellant against the appellee in a justice of the peace court because the summons and writ of garnishment was served, so it alleges, upon one who was not an officer of the company or an agent designated by it upon whom service of process could be served, and because the appellee had no notice of the pendency of the action prior to the rendition of the judgment, or prior to the expiration of its time within which to appeal from the judgment of the justice of the peace to the circuit court.” In addition to the allegations referred to by the appellee in the foregoing statement, the appellee set out the indorsement on the return made by the constable, which return stated that he had served the garnishee by delivering a true copy of said writ to the J. S. McWilliams Auto Company by their agent George Kid-well; and further alleged that it had a meritorious defense in that it was not indebted to the defendant in the action in the justice of peace court in any sum before or at the time of the issuance of the writ, nor did it have in its hands and possession any goods, moneys, chattels or effects belonging to the defendants or. either of them. Since a meritorious defense was alleged, the correctness of the holding and decree of the trial court depends upon whether the complainant had an adequate remedy at law. The doctrine is well settled by the weight of authority, which has the approval of this court, that injunctive relief may be granted against the enforcement of any judgment of a court of law, but that, in order to obtain the relief, it is necessary for the complainant to show that he has no adequate remedy at law. 32 C. J. 328 ; 34 C. J. 434 ; Wingfield v. McLure, 48 Ark. 510, 3 S. W. 439 ; Shaul v. Duprey, 48 Ark. 331, 3 S. W. 366 ; Fuller v. Townsly-Myrick D. G. Co., 58 Ark. 314, 24 S. W. 635 ; Knight v. Creswell, 82 Ark. 330, 101 S. W. 754, 118 Am. St. Rep. 74.
It is first insisted by the appellant that the chancery court had no jurisdiction to issue the injunction because of the provisión of § 5778 of the Digest, providing that “an injunction to stay proceedings on a judgment or final order of a court shall not be granted in an action brought by the party seeking the injunction in any other court than that in which the.judgment or order was rendered or made.” We are asked to construe this section and to apply it in the instant case. We are of the opinion that it has no reference to judgments of a justice of the peace court, but only to those of superior courts, and therefore has no application in this case. The powers of the justice of the peace court are limited to such as are given by the statutes digested in chapter 104 of C. & M. Digest, embracing §§ 6386-6570, inclusive. Section 6410 of that chapter is as follows: ‘ ‘ The parties to the action may be the same as in the circuit court, and all proceedings prescribed for that court, as far as the same are applicable and not herein changed, shall be pursued in justices’ courts. But the powers of justices’ courts shall be and are only such as are in this chapter enumerated. ’ ’
Section 5788 relied on by the appellant and cited supra was § 309 of chapter 4 of the Civil Code, and it is clear from an examination of the entire chapter that the power to issue an injunction rested only in the superior courts, and the section under consideration refers only to such.
It is next insisted that the complaint disclosed upon its face that the complainant has an adequate remedy at law. The legal remedies which might have been invoked in this case were three in number: first, by motion in the court of justice of the peace; second, by appeal to the circuit court; and, third, by writ of certiorari. The judgment of the justice in this case was by default, and the power of the justice over such is prescribed and limited by § 6448 of the Digest, which provides that a judgment of dismissal for want of jurisdiction, or judgment by default, may be set aside by the justice at any time within ten days after being rendered. The right of appeal must have been exercised within thirty days after the judgment was rendered, so that the complaint sufficiently shows that both of these rights were not available and were not lost by any neglect of the appellee, since it did not know of the pendency of the garnishment proceeding or judgment against it until well beyond the time in which it might have availed itself of these legal remedies. The complaint sufficiently shows that an examination of the original papers in the case would have disclosed prima facie regular service, and therefore the judgment of the justice court was not void on its face as the circuit court will look only to the face of the record on certiorari and quash only where from such inspection it appears that the court rendering the judgment had no jurisdiction, and that its judgment was void. McCoy v. County Court of Jackson County, 21 Ark. 475 ; Dicus v. Bright, 23 Ark. 107 ; State ex rel. v. Wilson, 181 Ark. 683-692, 27 S. W. (2d) 106, and cases there cited. We conclude that the allegations of the complaint in the instant ease were sufficient to show that the compffiinant had no remedy at law, and that the chancery court was correct in entertaining jurisdiction of the ease and granting the relief prayed.
It is contended by counsel that the decree of the court below can be supported only upon the authority of the case of Ryan v. Boyd, 33 Ark. 778, and that the doctrine of that case is in conflict with that announced in the following oases: Gates v. Bennett, 33 Ark. 489 ; Scanland v. Mixer, 34 Ark. 354 ; Levy v. Ferguson Lumber Co., 51 Ark. 317, 11 S. W. 284 ; Woolum v. Kelton, 52 Ark. 445, 13 S. W. 78 ; Knight v. Creswell, 82 Ark. 330, 101 S. W. 754, 118 Am. St. Rep. 74 ; Dale v. Bland, 93 Ark. 226, 124 S. W. 1026 ; Metcalf v. St. L. I. M. & S. R. Co., 101 Ark. 193, 141 S. W. 1167 ; Nelson v. Freeman, 136 Ark. 396, 206 S. W. 667 ; Betterton v. Anderson, 171 Ark. 76, 283 S. W. 364.
The case of Ryan v. Boyd was one where the summons showed on its face personal service on the defendant and a judgment rendered against him on the 26th of September, 1873. The complaint filed in chancery to enjoin its collection alleged that the return was false, and that judgment had been rendered without any service, and it is to be inferred that the first notice the defendant had was on the issuance of an execution approximately four years after the judgment was rendered. It is therefore evident that all remedies by appeal had long since been lost, and, if proceedings had been brought to stay or quash the execution, such proceedings would have availed nothing, for, as declared by the court: ‘ ‘ The circuit court could have looked alone to the record presented to it which could only have been the certified copy of the judgment, etc., and, as this on its face showed a valid service and a valid judgment, it is evident that the circuit court would have summarily dismissed the petition at the hearing.” So, whatever may have been the reasoning and argument of the learned special justice, the fact remains that in that case there was no remedy at law, and therefore the chancery court was warranted in entertaining jurisdiction and in overruling the demurrer interposed to the complaint.
The appellant stresses the case of Knight v. Creswell, supra, in support of its contention. That case was a suit in chancery to enjoin the enforcement of the judgment of a justice of the peace, and the grounds set forth in the complaint upon which equitable relief against the judgment was sought was that it was rendered without notice. The statement of facts in that case is very meagre but, as is shown by the abstract of the appellant’s brief, the contention made was that the court erred in granting the relief because there was no allegation or showing made by the appellee that his remedy at law was inadequate. The court, in sustaining the appellant’s contention and reversing the case, said: “Equity will not restrain the attempted enforcement o'f a void judgment where the remedy at law is complete. ’ ’
As in the case just referred to, so in all the other cases cited, supra, where the jurisdiction of equity was denied, it is apparent that there was no adequate remedy at law. In these cases there are some statements which might appear to be in conflict with the rule first stated, but these expressions were used by the court by way of argument or illustration and in each, as we have already said, on the real point necessary for decision, the cases are harmonious.
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PER CURIAM.
On May 1, 1950, we granted appellant until May 8, 1950, to perfect Ms abstract in response to appellee’s motion to affirm for failure to comply with Rule 9 of tMs court. Neither the original abstract and brief nor the amendment filed by appellant on May 8, 1950, makes any reference to a motion for a new trial. Under Rule 9 a judgment will be affirmed unless appellant’s brief shows that a motion for new trial was filed and overruled. Van Hoozer v. Hendricks, 143 Ark. 463, 221 S. W. 178.
It is also well settled that only errors apparent on the face of the record will be considered where there is no motion for a new trial. Miller v. Kansas City Southern Ry. Co., 129 Ark. 217, 195 S. W. 354.
No error appears on the face of the record in the instant case and the judgment is accordingly affirmed for failure to comply with Rule 9. | [
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Robert H. Dudley, Justice.
This case, which involves criminal sentencing procedures, was certified to this Court by the Court of Appeals as it involves the interpretation of an act of the General Assembly, Rule 29 (1) (c).
Sentencing procedures are controlled by statute. Holden v. State, 156 Ark. 521, 247 S.W. 768 (1923). The statute in effect on the date of the commission of the crime is the governing statute. Ark. Const. Art. II, § 17; Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981). Here, the appellant pleaded gulity to committing the crime of theft by receiving on January 23, 1978. At that time the sentencing provisions of the then new Criminal Code of 1976 had not been amended, and a trial court could not pronounce sentence and suspend the execution of that sentence. Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980). Suspending imposition of sentence is a procedure by which a defendant who pleads or is found guilty of an offense is released by the court without pronouncement of sentence and without supervision. Ark. Stat. Ann. § 41-803 (4) (Repl. 1977). If a defendant violates the terms of his suspension he may be sentenced to imprisonment for any period up to the maxi mum time which might have been originally imposed. Ark. Stat. Ann. § 41-1208 (Repl. 1977). In the case before us, at the time of the commission of the crime, a court could either suspend imposition of sentence or place the defendant on probation but it could not do both at the same time. Jefferson v. State, 270 Ark. 909, 606 S.W.2d 592 (1980); Ark. Stat. Ann. § 41-801 (1), (2) (Repl. 1977). No one could be sentenced other than in accordance with the Criminal Code. Ark. Stat. Ann. § 41-803 (Repl. 1977). Here, the trial judge entered two orders on the day of sentencing, May 31, 1978. The first is styled “Judgment and Order of Suspended Sentence” and provides that “the Court fixes his punishment at a General Sentence of Five Years in the Arkansas Department of Correction, said sentence to be suspended during good behavior . ” The second is styled “Order” and provides that “Bennie Cooper be and is hereby placed on probation for a period of five (5) years commencing May 31, 1978 . . . . ” Since the trial court at that time could only suspend imposition of sentence and, upon suspension, could not place the defendant on probation, we construe the j udgment as a suspension of the imposition of sentence for a period of five years. We note that the end result of this case would be the same even if we construed the two orders as placing the defendant on probation.
On January 18, 1980, in a different case, a suspended sentence in federal district court was revoked and the appellant was sentenced to serve one year in the Federal Correctional Institution in Bastrop, Texas. At that time, the prosecuting attorney filed a petition in circuit court to revoke appellant’s suspended sentence. A hearing was held, a judgment of sentence was pronounced and a docket sheet entry reflecting sentencing was made, but no order was entered. However, the record before us contains a transcription of the hearing and the docket sheet entries. The record, set out below, reflects pronouncement of a sentence. It is not in conformity with our sentencing rule or statute, A.R.Cr.P. Rule 36.4 or Ark. Stat. Ann. § 43-2301 (Repl. 1977), and did not clearly set forth the sentence as required, Ark. Stat. Ann. §§ 43-2305, 43-2602 and 43-2608 (Repl. 1977), but there was no objection by either party and no appeal from the sentence. Thus, the irregularities are waived.
The transcription of the hearing is as follows:
APPEARANCES:
MR. JIM GUNTER, Prosecuting Attorney, and MR. KIRK JOHNSON, Deputy Prosecuting Attorney, for the State of Arkansas.
MR. KARLTON KEMP, Attorney for the Defendant.
Thereupon, the following proceedings were had and done before the HONORABLE JOHN W. GOOD-SON, Regular Judge of the 8th Judicial Circuit of Arkansas:
BY THE COURT:
What happened in Federal Court, Mr. Cooper?
What happened in Federal Court?
BY MR. KEMP:
Judge, I was appointed —
BY THE COURT:
Oh, excuse me.
BY MR. KEMP:
— and the judge sent him over here to talk to you, because he knew you had him scheduled for today.
BY THE COURT:
I was going to let him have him.
BY MR. KEMP:
He says that they will take him. And they are recommending some time over there, and it was —
BY THE COURT:
How much?
BY MR. KEMP:
Three years, and possibly some of it to be suspended. I don’t know — he was sentenced to five here, wasn’t he?
BY THE COURT:
Right.
BY MR. KEMP:
The judge said if you were going to sentence him over here, that he would probably make his concurrent with your finding.
BY THE COURT:
I was going to be as good to them as they are to me. I was going to let them pay for it. But it suits me, but we are going to have to have a hearing on this one, I imagine, unless —
BY THE DEFENDANT:
Well, if it’s going to be cc, I don’t see any question what the Federal Judge do.
BY THE COURT:
Mr. Cooper, is it all right if I make the docket notation that the revocation of this sentence will run concurrent with the revocation of the sentence in Federal Court? Is that. . . (Emphasis added.)
BY THE DEFENDANT:
Yes, sir.
BY MR. KEMP:
I think this petition in the same form was filed after the Federal one was, your Honor, anyway.
BY THE COURT:
All right, sir.
END OF PROCEEDINGS
The docket sheet entries for the hearing reflect:
1/14/80 Defendant admits violation. Revocation to run concurrent with sentence in Ark. Fed. Ct. (Emphasis added.)
Only one conclusion can be drawn and that is the trial court revoked the suspension. The court could only suspend imposition of sentence so obviously the imposition of sentence was revoked. When that occurred an appropriate sentence could be imposed. Ark. Stat. Ann. § 41-1208 (6) (Repl. 1977); See also Commentary thereto. While the term imposed is not precisely set out, we interpret the proceedings as imposing a sentence concurrent with the federal sentence which was for one year commencing January 23, 1980. Then, on February 24, 1981, more than one year later and after appellant had been released from federal custody, the prosecuting attorney filed a pleading styled “Petition to Revoke Probated Sentence” and an “Amended Petition to Revoke Probated Sentence.” Both petitions refer to the original judgment for theft by receiving. The petitions were heard on February 25, 1982, and the trial court entered a judgment and order of commitment which provides:
That on a former day to-wit: May 31, 1978 Defendant entered his plea of Guilty to the crime of Theft by Receiving and his punishment was fixed at a General Sentence of Five (5) Years in the Arkansas Department of Correction, said sentence to be suspended during good behavior, fine of $500.00 and cost,
Now on this 25th day of February, 1982 it is found by the Court that said Defendant has violated the conditions of his Suspended Sentence and is hereby ordered committed to the Arkansas Department of Correction for a period of Five (5) Years. Defendant has been incarcerated in Miller County since January 27, 1982.
Appellant contends the sentence is void. The contention is meritorious. This was the second sentence for the crime of theft by receiving committed January 23, 1978. A second sentence cannot be imposed at a subsequent revocation hearing. Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981). In addition, the trial court did not have jurisdiction by the time it pronounced.the second sentence for, by then, the first sentence had already been put into execution. Once a valid sentence is put into execution the trial court is without jurisdiction to modify, amend or revise it. Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977). The increased punishment at a second sentencing is void for yet another reason. As Justice Douglas stated in discussing double jeopardy, “A person need run the gauntlet only once.” North Carolina v. Pearce, 395 U.S. 711 (1969).
Reversed. | [
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Per Curiam.
The petitioner Mark Edward Gardner was found guilty in the Circuit Court of Sebastian County of two counts of capital murder and sentenced to death on each count. We affirmed. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Petitioner now seeks permission to proceed pursuant to Criminal Procedure Rule 37. He has also filed a motion to amend. As the amendment raises no ground for post-conviction relief not raised in the original petition, the motion is denied. Petitioner’s sole ground for relief under Rule 37 is that the aggravating circumstance found to exist by the jury in the sentencing phase of his bifurcated trial has since been invalidated. The invalidation is alleged to have come about because a conviction for a prior violent felony which formed the basis for the jury’s finding of an aggravating circumstance in the sentencing phase of petitioner’s trial has since been reversed on appeal. We must initially determine whether an attack on a death sentence by means of an allegation that an aggravating circumstance has been invalidated after trial is within the scope of our post-conviction rule.
Rule 37 provides a remedy when a conviction and sentence were: (1) obtained in violation of the constitution and laws of the United States or of this state; (2) the court imposing sentence was without jurisdiction to do so; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. Rule 37.1. The sentence here clearly was not unconstitutional or unlawful when imposed. It did not exceed that authorized by law and was imposed in a court with jurisdiction to impose it. All that remains is whether the challenge raised by petitioner constitutes a collateral attack or a direct challenge to the conviction. If it is a direct challenge in the form of new evidence to attack the sentence, it is not cognizable under Rule 37. See Malone v. State, 294 Ark. 127, 741 S.W.2d 246 (1987); McDaniel v. State, 282 Ark. 170, 666 S.W.2d 400 (1984). We conclude that the question raised by petitioner constitutes a direct attack on the evidence used to establish an aggravating circumstance which was proved at trial and as such cannot be raised under Criminal Procedure Rule 37; but even if the allegation were considered a collateral attack, it would have no merit under the facts of this case.
At the sentencing phase of petitioner’s trial, the state proved beyond a reasonable doubt the aggravating circumstance that petitioner had previously committed another felony an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person. Ark. Code Ann. § 5-4-604(3) (1987). To establish the existence of the aggravating circumstance, the prosecution introduced judgments from Illinois entered in 1974 which reflected that petitioner had been found guilty of robbery and aggravated robbery and also called as witnesses a couple from Illinois who testified as to violent crimes committed against them by petitioner in that state in 1985 for which petitioner had not yet been tried. Petitioner based his argument for post-conviction relief on the claim that “the conviction upon which [his] death sentence was based has been reversed on appeal.” He does not state whether he has reference to one of the 1974 convictions or the convictions ultimately obtained for the offenses against the couple in 1985. Moreover, he states that he has attached to his petition a copy of the reversal of the Illinois Court of Appeals, but the document attached is an order of an Illinois circuit court dismissing five indictments which appear to be from 1985 and 1986 which bears a notation indicating that the reason for not pursuing the charges is that petitioner Gardner had already been sentenced to serve ninety years in the Illinois Department of Correction on a charge filed in 1985 and is under a death sentence in Arkansas. If it is assumed from the dates on the indictments that petitioner is not referring to the 1974 crimes, there is still no way to know whether the indictments are for crimes against the couple who testified at trial as there is no reference to the names of the victims or other information to link the indictments to the couple. The state in its response asserts categorically that none of the indictments pertains to petitioner’s Arkansas death sentence and further that it can produce certified documents from the Illinois Court of Appeals which show that petitioner was convicted of the crimes against the couple who testified and that the convictions were duly affirmed on appeal.
Assuming for the sake of argument that petitioner is accurate that the convictions have been reversed, he has nevertheless stated no cause to vacate the death sentence imposed at his trial. He relies on the recent case of Johnson v. Mississippi, 486 U.S. __, 108 S.Ct. 1981 (1988), to support his argument that he is entitled to have his death sentence vacated, but Johnson can be distinguished. In Johnson, the jury found the existence of three aggravating circumstances, one of which was that Johnson had been previously convicted of a felony involving the use or threat of violence to another person. The sole evidence of the prior felony was a document reflecting a conviction for assault to commit rape. The assault conviction was overturned on appeal after trial, and the United States Supreme Court concluded that since the assault conviction was invalid and the prosecutor had presented no evidence of the conduct underlying it, Johnson was entitled to be resentenced. Johnson is not applicable to petitioner’s case because at petitioner’s trial the jury heard detailed direct testimony by the victims of the prior violent felony and other evidence which established the nature of petitioner’s conduct. In addition to their testimony, there was further evidence of the crimes against them introduced in the sentencing phase of petitioner’s trial. The aggravating circumstance was thus proved by evidence adduced at trial of the commission of violent acts rather than by proof of a conviction, a practice which this court has upheld. See Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983). We held on appeal that the state had met its burden in petitioner’s case of proving the aggravating circumstance, and petitioner has offered no meritorious challenge to his death sentence whether the challenge be considered direct or collateral.
Petition and motion denied.
Purtle, J., dissents. | [
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Tom Glaze, Justice.
The appellee, Sammie Berry, is licensed by the State of Arkansas as a practical nurse and is also the owner-operator of a licensed residential care facility within this state. The appellant, Department of Human Services (DHS), through its Office of Long Term Care (OLTC), is empowered by law to make rules and regulations to control residential care facilities. Berry sought a declaratory judgment that certain regulatory provisions adopted by the OLTC were arbitrary and in conflict with the authority granted to the Arkansas State Board of Nursing to regulate the nursing profession. Those regulations adopted by the OLTC govern the administration of medicine in residential care facilities by owner-operators of such facilities. The trial court declared the regulations invalid, and from that judgment, appellant brings this appeal. We reverse.
When considering the validity of a regulation, the court must give the regulation the same presumption of validity as it would a statute. See Rowell v. Austin, 276 Ark. 445, 637 S.W.2d 531 (1982). In reviewing the adoption of regulations by an agency under its informal rule-making procedures, a court is limited to considering whether the administrative action was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. Arkansas Pharmacists Assoc. v. Harris, 627 F.2d 867 (8th Cir. 1980). A court will not attempt to substitute its judgment for that of the administrative agency. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). A rule is not invalid simply because it may work a hardship, create inconveniences, or because an evil intended to be regulated does not exist in a particular case.
In the present case, the OLTC bears primary responsibility to regulate and manage the many long term care facilities in Arkansas. The three basis types of facilities are (1) nursing homes, (2) residential care units and (3) adult care centers. As previously noted, appellee owns and operates a residential care facility. Basically, in order to qualify for admittance to a residential care setting, a person must be ambulatory and able to evacuate the building under his or her own power within two minutes if an emergency arises. The person must also be able to self-administer his or her own medications and not require nursing care. Unlike residential care facilities, nursing homes provide services for those persons who need medical treatment or who can no longer self-administer medications or evacuate the facility in less than two minutes.
Because persons in nursing homes are given medication and medical treatment, those homes are required to chart and keep extensive records of each resident’s health, medical history, physician orders and overall medical treatment. No such requirements are imposed upon residential care owners or operators. In addition, nursing homes are required to have pharmaceutical committees comprised of the medical director, consulting pharmacists, the director of nurses, and the administrator. This committee is to ensure the medications are being administered properly and are having the desired results.
Residential care facilities and the services they provide are clearly different from those provided in nursing homes. To aid in effectively monitoring residential care services, the OLTC promulgated Regulation 1901 (3) and (4), which are in issue in this cause and provide as follows:
3. Under no circumstances shall an operator or employee or anyone solicited by an operator or employee be permitted to administer any oral medication, injectable medications, eye drops, ear drops' or topical ointments (both prescription and non-prescription drugs).
4. In' addition, any owner and/or operator of a Residential Care Facility who is a licensed nurse who administers any medication to a resident will be in violation of operating an unlicensed nursing home.
Appellee contends, and the trial court held, that provisions 3 and 4 unlawfully restrict a licensed nurse from performing her nursing duties under state law as a licensed nurse and arbitrarily draw a distinction between a home health nurse and a nurse, like Berry, who also happens to own or operate a residential care facility. We disagree.
Provision 3, by its clear terms, merely prohibits a residential care operator or employee from administering medications to residents. Thus, the purpose is directed at regulating the daily operations of residential facilities — not the practice of nursing. Consistent with that purpose, the regulation recognizes that those persons residing in residential care facilities are not afforded the same protections or monitoring devices such as charting, record-keeping, and oversight pharmaceutical committees as are those persons residing in nursing homes. However, if the condition of a person in residential care worsens to the point he or she no longer meets the requirements of that type facility, that person would necessarily be transferred, to a nursing home where the proper medical treatment can be extended the person and where monitoring devices are available to measure and control that treatment.
Appellee’s arguments simply fail to recognize the legitimate distinction between the type care provided by nursing homes from that given by residential care facilities; neither do they acknowl edge the valid purpose the OLTC attempts to achieve by its enactment of Regulation 1901 (3). If appellant is not empowered to regulate residential care facilities in this manner, it seems readily apparent that extended medical treatment may be administered persons in such facilities without the monitoring safeguards required of nursing homes.
Home health nursing is available to residential care residents when they are in need of medical care. That type nursing care is extended under the supervision of a physician. However, appellee Berry counters by arguing that she is a nurse, and it is needless to call on outside nursing care when she can promptly and conveniently provide the same care to her residents. While there is some pragmatism in what Berry says, the OLTC must also be mindful that while she may well be a very excellent nurse, she is also an owner/operator who has an economic interest in the residential care facility. The sole interest of an outside home health nurse, on the other hand, is merely to provide for the immediate medical need of his or her patient. In this connection, we would quickly add that the record in this cause would indicate that the appellee runs an excellent facility and that no evidence exists that any actual conflict is present as a result of her being both a nurse and the owner of the facility. Even so, the OLTC is confronted with the prospects that such conflicts are apt to arise in the future if it becomes common practice for residential care facilities to employ staff nurses, thereby blurring the meaningful distinction between such residential care facilities and nursing homes.
Finally, we would add that the OLTC’s regulation, particularly 1901 (7), takes into account that emergency matters do occur and provides that operators or employees of residential care facilities may administer medical treatment to a resident until the resident/patient can be transported to an appropriate medical facility. In sum, the agency, in promulgating Regulation 1901, was mindful of the medical needs of residents who meet the requirements of a residential care facility, and in every instance, required medical treatment is available to those residents. The regulation under attack in no way adversely affects the nursing profession, nor does it restrict a nurse’s opportunity to practice his or her profession, except in the unique situation where that nurse either owns, operates, or is employed by a residential care facility. To date, such a situation has obviously been rare indeed, and where that case should arise, we believe the state has shown a reasonable and legitimate purpose for regulating that residential facility as it has done under Regulation 1901.
The appellee also argues that provision 4 of the regulation set out above is invalid because it results in an arbitrary distinction between equally qualified members of the nursing profession, viz., home health nurses and nurses who own or operate a residential care facility. For reasons already stated, we believe there is a reasonable and recognizable purpose for treating these two so-called classes of nurses differently. We do believe provision 4 is poorly worded since it omits physicians who may be owners or operators of residential care facilities and presumably such a physician /owner could administer medication and treátment to residents of his or her facility. However, no apparent reason is offered for excluding physicians, and while the appellant offers that it interprets provision 4 so as to include physicians, within proscription of the regulation, the provision clearly fails to mention physicians and most likely is defective for failing to do so.
For the above reasons, we reverse.
Holt, C.J., and Purtle, J., dissent.
Adult care centers are not in issue in this cause. | [
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Steele Hays, Justice.
Appellees brought this action against John H. Parker Construction Company (appellant) for damage done to trees resulting from the laying of a water line on residential property belonging to the appellees. The jury returned a verdict in favor of the appellees and Parker has appealed. We find no merit in the three points of error assigned to the rulings of the trial court.
The Northern Malvern Water Users Association undertook to install a municipal water system in the area of Rockport in Hot Spring County. The association employed Affiliated Engineers to oversee the project and contracted with Parker to dig the trenches and install the water pipes. The association obtained easements from a number of land owners, including Lonnie and Shirley Aldridge and H.E. and Glenda Treadway, the appellees.
When the construction was completed trees on the property of the appellees died and had to be removed. Appellees brought this action alleging negligence in the selection of the route of the water line and in excavating within six feet of the trunk of the trees.
Parker first contends the trial court erred in permitting Ronnie Ledbetter to testify as an expert with respect to the standard of care applicable to digging trenches for water lines. Ledbetter testified he operated his own excavation contracting business engaging in digging trenches and burying water lines. Ledbetter described a number of projects involving water, utility, or telephone lines in which he had been involved, including installing several miles of water line for the Perla Water Department, water lines for the Highway 9 Water Department, and water and sewer lines for a trailer park. Currently he did all the repair work for the Perla Water Department. Ledbetter said he had been involved in laying water lines and utilities for twenty-two years. As he was not a licensed contractor, he was limited to contracts of less than $25,000. He was familiar with the type of work done by Parker in this case and had been engaged in the same kind of work except that it was below the $25,000 limit applicable to unlicensed contractors.
Parker maintains that Ledbetter should not have been qualified as an expert because he was not a licensed contractor. Parker likens it to having a nurse give opinion testimony on the actions of a doctor. Parker cites a Texas case, Prellwitz v. Cromwell, Truemper, Levy, Parker and Woodsmall, 802 S.W.2d 316 (Tex. Ct. App. 1990), where it was held that to establish the standard of care for a licensed professional, a licensed professional in that field must testify. That was a malpractice suit against an architectural and engineering firm turning on whether proper stress tests had been used to determine whether pipe could withstand pressure at certain levels. Parker lists other states as embracing the same rule, but those cases involve physicians, attorneys or chiropractors. Parker does not challenge the qualifications or expertise of Ledbetter within the scope of his testimony, rather, he urges that we should adopt the same standard for expert witnesses as in Prellwitz, supra.
We are not persuaded by the argument, as we believe it would be a departure from the rule announced in our previous cases. In Yandell v. State, 262 Ark. 195, 555 S.W.2d 561 (1977) we were asked to overturn the ruling of the trial court permitting a physician from Mexico to give expert medical testimony, although unlicensed in the United States. We held that expert testimony may be given by individuals qualified by experience, knowledge or training. We adhere to that standard. See Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984).
Second, Parker argues that the trial court erred in refusing to instruct the jury that when landowners grant an easement they waive damages arising from the normal construction of the right-of-way and the landowners may recover only if they prove the work was done unnecessarily, negligently or unskillfully. The instruction was drawn from the decision in St. Louis, Iron Mountain & Southern Railway Co. v. Walbrink, 47 Ark. 330, 1 S.W. 545 (1886).
We are not persuaded the trial court erred in refusing the instruction. It may be an accurate statement of the law in general terms, but the language tended to bind the jury to a particular result and was abstract in the sense that in Walbrink there was neither an allegation nor proof that the work performed pursuant to the easement was negligently performed. Missouri Pacific Railroad Co. v. Ward, 252 Ark. 74, 477 S.W.2d 835 (1972); Missouri Pacific Railroad Co. v. Boley, 251 Ark. 964, 477 S.W.2d 468 (1972). The trial court gave the AMI instructions on negligence and we are satisfied they covered the issues pertinent to the case.
Third, Parker insists the trial court should have granted its motion for a directed verdict at the end of the plaintiffs’ proof and again at the close of the case. Parker relies on the Walbrink case, supra, and Daniels v. Board of Directors of St. Francis Levee District, 84 Ark. 333, 105 S.W. 578 (1907). Both involved easements and damage to the landowners from changes effected by the easements. In Walbrink the railroad company removed fences and altered the flow of a creek resulting in damage to adjoining property. In Daniels the damage was attributable to a levee, constructed pursuant to the easement. In the former we reversed a judgment for the plaintiffs and in the latter, we affirmed the trial court’s directed verdict for the levee district. But in neither case was there evidence that the work was negligently performed, a distinguishing factor from the case at hand.
Here it was shown that some of the right of way permits, including those of the appellees, were “blanket easements” in that they did not specify the location of the water line, but described the entire tract of the landowners. When the line was installed, the district acquired a ten foot easement to maintain the line as determined by the installation. Wade Butler of Affiliated Engineers testified “it would be fair to say that the water line zigzags throughout this particular project. It did that because we tried to miss trees.” Ronnie Marshall, project engineer, testified, “We were strictly supervising. We have no control over where the contractor is going to dig a trench. If Mr. Parker decides to dig a trench within ten feet of a tree, that’s Mr. Parker’s problem under the contract. Our position was to give the contractor an area of work and to supply him with plans and specifications. But we didn’t control the course and the direction of the project. . . We look to the contractor for any remedies or deficits in the job.” In the opinion of Ronnie Ledbetter the water lines could have been laid in an alternate route, that it was the duty of the contractor to inform the engineer if the designated route encounters structures, including trees, and that Parker had a duty to the appellees. He stated, “There is no doubt in my mind that Mr. Parker’s actions of going across the property and cutting close to the trees caused damage to the trees. It is my position that John Parker Construction Company killed the trees.”
When that and similar testimony is given its highest probative value in favor of the non-moving party (appellee), as we are obliged to do in reviewing the denial of a motion for a directed verdict, we are fully satisfied the motion was properly denied. Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991).
Affirmed. | [
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John A. Fogleman, Justice.
Donald Louis Curtis, then 13 years of age, was charged on October 1, 1970, with three counts of burglary, two counts of grand larceny and one count ©f rape. After advice by Jack Holt, Jr., an attorney employed by his parents, appellant entered a plea of guilty and was sentenced to serve 30 years in the Arkansas Department of Corrections. His petition for postconviction relief under Criminal Procedure Rule 1 was denied on March 7, 1973. In that petition he admitted guilt of two counts of burglary, but denied guilt of all other charges. He asserts two alleged errors as a basis for reversal. We find no merit in either assertion.
Appellant first asserts that the circuit judge erred by admitting his alleged confession into evidence during the hearing on his petition for postconviction relief. Even if we should agree with him that the alleged confession was involuntary, the error was harmless. One who enters a plea of guilty after he has had advice of counsel may not thereafter raise claims relating to deprivation of constitutional rights prior to his plea, except by showing that the plea was not voluntarily and intelligently entered because the advice he received from counsel was not within the range of competence demanded in criminal cases. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657. Appellant, now represented by another attorney, has not even made this contention, much less the required showing.
Since appellant was so young at the time, we have considered other factors in addition to his failure to argue that his attorney’s advice was not in accord with required standards. We cannot say there is no eviden-tiary support for the trial court’s findings, among others, that: appellant’s plea of guilty was entered freely and voluntarily; both he and his mother fully understood the consequences of the plea; the plea and sentence had been arrived at through plea negotiations between his attorney and the prosecuting attorney; he was fully, completely and adequately represented by his retained counsel, both prior to, and at the time of, the plea of guilty. We note that these findings were made by a judge other than the one who accepted the plea of guilty.
Furthermore, the record discloses that appellant’s attorney had filed a motion challenging the validity and voluntariness of the confession, a motion for continuance and a motion for trial setting. Appellant testified that he advised his attorney of all the circumstances surrounding the giving of his statement to the officers. There was testimony by Mr. Fletcher Long, deputy prosecuting attorney in St. Francis County, showing that negotiations extending over a period of several months had been initiated by Holt. After Holt had filed motions for a continuance, for a bill of particulars, for disclosure of documents, and for severance of trial, Long said that he permitted Holt to examine everything in the prosecuting attorney’s files. He stated that, after discussions about the voluntariness of the youth’s statements to the officers and an investigation by Holt, this attorney conceded that he could not discredit the testimony of the officers on this subject. Long also testified that, because of Curtis’ age, he took the precaution of assuring himself of the voluntariness of the statement by interviewing young Curtis, after having advised the youth of his constitutional rights. It is not unreasonable to assume that there was an appropriate basis for appellant’s failure to challenge the competence of his attorney’s advice.
Appellant’s other contention is that the state failed to establish his capacity, at age 13, to commit the crimes with which he was charged. His guilty plea was itself a conviction, and, after it was entered, nothing remained except to enter judgment and fix punishment. Kercheval v. United States, 274 U.S. 220, 47 S. Ct. 582, 71 L. Ed. 1009 (1927). It was, in itself, an admission of all the elements of the charges. McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969). It also constituted a waiver of any defense that might have been raised at the trial of the charges. Cox v. State, 255 Ark. 204, 499 S.W. 2d 630. The state was not required to prove any element of the crime, since the plea of guilty was sustained. Here again, because of appellant’s youth, we sought to find anything to indicate that appellant’s attorney was not fully aware of this possible defense and of appellant’s mental capacity. We have been unsuccessful. It is significant that appellant was committed to the Arkansas State Hospital for psychiatric examination and observation prior to Holt’s employment. We have no reason to believe that the results of this evaluation were not available to counsel and given appropriate consideration by him.
Even with the more extended review accorded appellant because of his youth, we cannot say that his plea of guilty is vulnerable on collateral attack. No doubt the age of the offender has been, and will be, given consideration by the Department of Corrections.
The judgment is affirmed.
Holt, J., not participating. | [
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David Newbern, Justice.
The appellant, Richard Green, petitioned the Circuit Court of Hot Spring county for relief pursuant to Ark. R. Crim. P. 37.1 on the ground that his plea of guilty to first degree murder, of which he was convicted in 1979, was not voluntary. His contention was that he was told by his counsel and the prosecutor that he would only serve seven years. A hearing was held at which his former defense lawyers and the prosecutor testified to the contrary. We affirm the trial court’s denial of relief.
Richard Green testified that he was told he would only serve seven years and that he would not have pleaded guilty had he thought his prison term would be longer. The trial took place in 1979, and he sought executive clemency in 1986 in the form of a reduction in his sentence to a term of years. Such a reduction would have made him eligible for parole at some point. His request was not acted upon by the governor’s office.
His former counsel testified they told Green that those serving life sentences were serving seven to fifteen years, depending upon how they behaved in prison. The prosecutor testified no promise of any term of years was made to Green. There was testimony to the effect that in 1979 there was a rule of thumb, followed by the governor, according to which one sentenced to life had to serve seven years before clemency would be considered. That was changed in 1980 to twelve years.
The trial record shows clearly that Green told the court at the time he entered his plea that he knew he could be sentenced to life imprisonment and that, other than the agreement to reduce the charge against him from capital to first degree murder, no promises had been made to him in exchange for his plea.
Mr. Green apparently was told the facts about parole eligibility as they were in 1979. The change in the situation did not render his plea involuntary. Even if it were concluded that erroneous advice about parole eligibility was given, that would not make the plea involuntary. Garmon v. State, 290 Ark. 371, 719 S.W.2d 699 (1986). See also Vagi v. State, 296 Ark. 377, 757 S.W.2d 533 (1988).
The trial court found: “The State and the defense entered into no agreement that the defendant would do any specific term of years in the penitentiary. Mr. Green’s attorney merely advised him of the possibility of eligibility.” To reverse the trial court’s refusal to grant relief, we would have to hold these findings to be clearly against the preponderance of the evidence. Whisenhunt v. State, 292 Ark. 33, 727 S.W.2d 847 (1987); Hall v. State, 285 Ark. 38, 684 S.W.2d 261 (1985). The evidence in the record supports the court’s determination.
Affirmed. | [
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Leflar, J.
Grover Fuller appeals from conviction under an information charging him with stealing two cows from one Richmond. Fuller admitted that he took the cows from Richmond’s pasture near Van Burén on the night of March 7, 1950, and hauled them to Spring-dale, where he sold them. His defense was that he believed the pasture had been rented by and was in possession of another person, not Richmond, and that the cows were two that had been stolen from him some time previously by this other person. It is clear that this belief was a mistaken one, but if he honestly held the belief it was a good defense to the criminal charge of grand larceny, Wilson v. State, 96 Ark. 148, 131 S. W. 336, 41 L. R. A. (N. S.) 549, Ann. Cas. 1912B, 339, and he was entitled to present his evidence on the point fully and fairly.
The first witness to testify on defendant’s behalf was Ben Mayo, high school athletic director who had coached Fuller when the latter had been a football player at the Fort Smith High School in the 1930s, and had kept up with Fuller and his family since then. Mayo was offered to testify to Fuller’s good reputation in the community and also to the fact that though sane, he was inclined to be neurotic, particularly after he suffered a severe head wound while in military service during the war, and was therefore more likely to hold the belief relied upon as a defense than an ordinary man would be. As a preliminary, defendant’s attorney had Mayo identify himself, then asked him eight questions, all answered briefly, which traced the acquaintanceship between Fuller and Mayo from Fuller’s high school days to a time shortly before the alleged theft. The last of the series of questions was “What business was he (Fuller) engaged in here?” Mayo’s answer was “He was in the dairy business.”
At this point, the Circuit Judge said “Just a minute, Mr. Batchelor, we will take too much time here if you expect to prove the reputation of Fuller by this teacher. There is no need to go into all of this. Now you can spend a lot of time on a man’s acquaintances and visits and all that. But that wouldn’t help the jury and it isn’t admissible here.”
Defendant’s attorney recorded his exceptions to the Judge’s remarks.
The Judge then continued “Well, it is just taking up the time of the jury for nothing. He could talk about his football players from now until tomorrow night but that would not help the jury in deciding this matter.”
Defendant’s attorney again recorded exceptions, and asked “Tour honor, do you stop me at this time?”
The Judge resumed “Yes, sir, from pursuing that line of questioning. At this time these men here on the jury have something else to do besides listen to that. They want to try this case, and it is my duty to confine the testimony to points that are material.”
Defendant’s attorney once more recorded exceptions, and suggested that the matter might be discussed further in another room out of the jury’s hearing.
The Judge then said “The only thing, gentlemen, we just have this to do and these men want to be about their business when they finish this, and if we permit this teacher and other teachers to talk about all these things and their acquaintances, it will take three times as long as should be necessary. ’ ’
The colloquy continued a little longer, then the Judge agreed that they should go to another room away from the jury. After further discussion in the separate room, Mayo was allowed to resume his interrupted testimony. There were some further interruptions by the Judge, of the same general tenor as those just quoted, but not going as far in casting aspersions on the defendant’s attorney and witness.
A Circuit Judge presiding at a jury trial should not be a mere automaton on the bench, exerting no control over what goes on before him. He should be more than a moderator who keeps order while counsel do and say what they please before the jury. It is his duty to see not only that the trial proceeds in accordance with law, but that it proceeds efficiently and effectively, and in keeping with the ends of justice. He should, among other things, be free to shut off long-winded and irrelevant testimony or questioning, and to confine counsel to the actual issues in the case being tried. The firm and fair administration of the trial is a part of his job.
We feel, however, that the record in this case shows that the Circuit Judge went too far. We do not find error in his rulings as to the propriety of testimony, nor in the fact that he sought to control irrelevant questioning, but rather in the manner and the language of his rulings concerning what was at the most a minor transgression on the Court’s time. Their phrasing and tenor were such as to cast serious- reflections on the witness as well as the attorney and to create an impression among the jurors that the testimony could have little value, whereas actually it may have been highly important to the establishment of the defendant’s rather unusual defense. The Judge’s language tended to minimize the effect of significant testimony, not of irrelevant or unimportant evidence.
“. . . a judge presiding at a trial should manifest the most impartial fairness in the conduct of the case. Because of his great influence with the jury, he should refrain from impatient remarks or unnecessary comments which may tend to result prejudicially to a litigant or wMcli might tend to influence the minds of the jury. By his words or conduct he may, on the one hand, support the character and weight of the testimony or may destroy it in the estimation of the jury. Because of his personal and official influence, uncalled for or impatient remarks, although not so intended by him, may give one of the parties an unfair advantage over the other.” Western Goal & Mining Co. v. Krone, 193 Ark. 426, 428, 100 S. W. 2d 676, 677. Also, see, McAlister v. State, 206 Ark. 998, 178 S. W. 2d 67.
The requirement of Art. 7, § 23, of our Constitution, that “judges shall not charge juries with regard to matters of fact”, applies as well to the credibility of witnesses and the weight to be given their testimony as to the outright truth or falsity of what they say. St. L. S. W. Ry. Co. v. Britton, 107 Ark. 158, 154 S. W. 215. And it applies not only to what judges tell juries in the course of formal instructions but also to what they say in colloquys with lawyers in the jury’s hearing.
The judgment of conviction is reversed and the case is remanded for new trial.
GkifeiN Smith, C. J., and McFaddiN, J., dissent. | [
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Lyle Brown, Justice.
The Pulaski County Court granted a petition to incorpórate the Wrightsville community. Appellee Walton attacked that order by proper complaint filed in the Pulaski Circuit Court. The circuit court set aside the order of incorporation on the ground that the petition to incorporate was not signed by a majority of the inhabitants of the area, citing Ark. Stat. Ann. § 19-106 (Repl. 1968). The propriety of that interpretation is the sole issue on appeal.
The petition for incorporation was granted because the county court found that it was signed by more than twenty electors of the territory. In so doing the county court took the position that the signatures of a minimum of twenty qualified voters were the requisite number required for the granting of the petition. Ark. Stat. Ann. § 19-103 (Repl. 1968). The circuit court, in setting aside the order, held Sec. 19-106 required it to be shown that a majority of the inhabitants approved the incorporation. It is not disputed that the number of signatures (26) did not constitute a majority of the inhabitants.
By Act No. 1, March 9, 1875, the General Assembly enacted a comprehensive code covering the incorporation of communities into towns. In resolving the issue before us, three sections of that act must be considered. The pertinent parts provide:
When the inhabitants of a part of any county, not embraced within the limits of any city or incorporated town, shall desire to be organized into a city or town, they may apply by petition, in writing, signed by the inhabitants so applying, to be in number not less than twenty (20) qualified voters, to the County Court. . . . Ark. Stat. Ann. § 19-101 (Repl. 1968).
If the County Court shall be satisfied, after hearing such petition, that at least twenty (20) qualified voters reside therein, or within the limits described by said petition, and that said petition has been signed by them; .... and it shall, moreover, be deemed right and proper, in the judgment and discretion of the Court, .... then it shall make out and indorse on said petition an order, to the effect that the incorporated town as named and described in the pe tition may be organized, . . . Ark. Stat. Ann. § 19-103 (Repl. 1968).
Then it is provided by Ark. Stat. Ann. § 19-105 (Repl. 1968) that one month shall elapse before notice shall be given of an election of officers; during that period any interested person may make complaint to the circuit court for the purpose of preventing the organization of the proposed town. Then Ark. Stat. Ann. § 19-106 (Repl. 1968) provides:
It shall be the duty of the court or judge to hear such complaint in a summary manner . . . and if it shall appear to the satisfaction of the court or judge that the proposed incorporated town does not contain the requisite number of inhabitants, or that a majority of them have not signed the original petition, . . . then the said court or judge shall order the record of said incorporated town to be annulled.
If we adopt the position of appellant then we must write out of the statute (§ 19-106) the requirement that the majority of the inhabitants must have signed the petition. The rules of statutory interpretation require, among other things, that we must “give to the statute such a construction, if possible, as will enable the Act and all parts thereof to be effective”. Russell v. Cockrill, Judge, 211 Ark. 123, 199 S.W. 2d 584 (1947). To the same effect see Compton v. State, 102 Ark. 213, 1443 S.W. 897 (1911). Compton quotes from 2 Lewis’ Sutherland, Stat. Con. (2 ed.) § 368: “[A] statute must receive such reasonable construction as will, if possible, make all its parts harmonize with each other, and render them con-sistant with its scope and object.”
Appellant argues that the phrase in § 19-106 “or that a majority of them have not signed the original petition” refers to the term “requisite number of inhabitants”. Sec. 19-103 says the required number of inhabitants of the proposed town is twenty qualified electors. If we accept appellant’s argument then § 19-106 would only require die signatures of eleven qualified electors. Such an interpretation is not in harmony with the provisions of § 19-101 and § 19-103.
We have no way of knowing why the legislature provided that articles of incorporation can be granted by the county court upon petition of twenty qualified electors and then provides that if complaint is timely filed in circuit court, the signatures of a majority of the inhabitants would have to be shown. Nevertheless, we are unable to arrive at any conclusion other than § 19-106 requires the signatures of a majority of the inhabitants. We would point out that the proceeding in circuit court is not an appeal from the county court. The jurisdiction of the circuit court is invoked by the filing of a complaint which, of course, constitutes an entirely new preceeding.
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John A. Fogleman, Justice.
Appellant asserts that the chancery court erred in enjoining him from constructing a funeral home in Rector on a lot acquired by him for that purpose. The error, according to appellant, is in the court’s finding that the vicinity in which the funeral home was to be located was an expanding exclusive residential area which was not in transition to business uses, so that the funeral home would constitute a nuisance. We affirm because we cannot say this finding was clearly against the preponderance of the evidence.
The importance of this finding is delineated in such cases as Fentress v. Sicard, 181 Ark. 173, 25 S.W. 2d 18; Powell v. Taylor, 222 Ark. 896, 263 S.W. 2d 906; Howard v. Etchieson, 228 Ark. 809, 310 S.W. 2d 473; and Blair v. Yancey, 229 Ark. 745, 318 S.W. 2d 589. Through these cases, we have established these general principles, with regard to preventing establishment of funeral homes: A funeral home is not a nuisance per se. The intrusion of a funeral home into an exclusively residential district would ordinarily constitute a nuisance. It may be a nuisance in an area essentially residential in character. If, however, transition of the district from residential to business has so far progressed that the value of surrounding property would be enhanced as business property, rather than depreciated as residential property, the establishment of a funeral home would not constitute a nuisance.
Decisions recognizing the right of property owners to prevent the intrusion of a funeral home into a residential district are based upon the premise that the continuous suggestion of death and dead bodies tends to destroy the comfort and repose sought by home owners. See Powell v. Taylor, supra. The critical factor in determining the application of the general principles appears to be the effect on property values because of the location of the funeral home. Considerable weight is also given to the predominance of either commercial or residential property in the area. We cannot agree with appellant’s analysis of our holdings, insofar as he interprets them to turn upon the manner of operation of a funeral home. While this could become a factor in determining whether injunctive relief should be granted, it is not determinative, and injunctive relief has been approved without any indication that the manner of operation would be in anywise contrary to prescribed standards and regulations.
The lot in question here is 170’ x 180’ and lies on the west side of Woodland Heights Drive (formerly Old Cemetery Road) in Rector, between two residences. All of the block on the west side of this drive between Second Street and Woodland Heights Cemetery, except for appellant’s lot, is occupied by residences. All these dwelling houses were constructed after the cemetery was established. There are four homes between appellant’s lot and the cemetery, the entrance of which is approximately 600 feet south of his lot. None of the property east of the street on which appellant’s lot faces is developed. It is presently being used as a cow pasture. All the land in the block in which the Mitchell lot is located lying west of that lot and the homes on each side of it is presently used for pasture. There are also residences, however, facing Second Street and lying west of the residence at the corner of Second and Woodland Heights Drive. There had been a “camper” parked northwest of this intersection on the corner lot and a mobile trailer home on the lot just north of that. There is also a machine shop on the north of this block near its western boundary on Idlewild Street. It was built 20 to 30 years ago — long before most of the residences in the area. In the next block to the north there was a dwelling house in which there was a beauty shop and another in which there is an antique shop occupying part of the garage and carport. Both faced Woodland Heights Drive, and there is evidence indicating the operators of these shops live in the dwellings in which they are located. There was testimony that the antique shop was located in a very attractive house. There is no evidence that there is any zoning ordinance in Rector or that there are any building restrictions that would prohibit the building of a funeral home anywhere in Rector.
There was testimony by a licensed real estate broker, who had been in construction work and who claimed to know property values in Rector, that several residences in the area would suffer depreciation in value by reason of the construction of the proposed funeral home. He opined that both Woodland Heights Drive and Second Street were strictly residential, even though there were some shops in the area. According to him, traffic and parking problems would be presented. He said no new businesses were being constructed in the area, but new residences were being built over a two-block area.
Another licensed real estate agent pointed out specific residential properties in the area that would suffer depreciation in value by reason of intrusion of a funeral home at the proposed location. He testified that the “cow pasture” across the street, being suitable for residential purposes, would also suffer depreciation in value. He emphasized the effect of traffic and parking problems resulting from the operation of a funeral home. It was shown by other testimony that Woodland Heights Drive is a major thoroughfare for traffic entering and leaving Rector and carries more traffic than most Rector streets. It is 18 feet wide, with a six-foot dirt shoulder on one side and a three-foot one on the other. Outside the shoulders there are ditches. The Chief of Police testified that traffic congestion resulted when a funeral was in progress. While one car could pass between two others parked on this street, two could not meet and pass.
An appraiser for a savings and loan association, who agreed with other witnesses that the erection of the proposed funeral home would depress values in the area, emphasized loss of the homeowners’ privacy. He found no adverse effect attributable to the antique and beauty shops. He also thought the property east of Woodland Heights Drive was suitable for residential development. The owner of one of the “cow pastures” testified he and his two sisters planned to sub-divide it for residential uses and had already platted part of it.
Neighboring dwellers stressed the morbid and depressing effect of a funeral home, restraints on recreational activities of families and the potential traffic congestion. Values of their property ranged from $14,500 to $28,000. There was testimony that bodies would be brought into the funeral home for embalming at all hours of the day and night. Appellant admitted that he would operate an ambulance service which would be used in response to emergency calls at all hours. Deliveries of flowers, caskets and vaults would be made to the establishment.
None of this evidence was substantially contradicted. Appellant pointed out that he planned a parking lot with capacity for 30 cars, without crowding, which he said was adequate for visitation hours and for most funerals. He anticipated that, by crowding, the lot would accommodate 45 cars, and that this would be sufficient parking for almost any funeral in Rector.
One of the arguments advanced by appellant is that the development of the area has been deterred already by reason of the cemetery. There was considerable testimony, however, that the cemetery was not visible from the property involved by reason of the fact that it lay beyond a slight knoll or rise in ground elevation. It was conceded by some of the witnesses that property in the area would be more valuable if the cemetery were not so close. One of the expert witnesses, however, testified that the residential lots in the area would not be diminished in value because of the cemetery.
The mere fact that property values in the area may have already been depressed by proximity to the cemetery does not diminish the weight of the testimony of the various witnesses about the impact of the establishment of the funeral home in that area. Neither does it tend to show that there is any transition toward commercial development, since all the residences have been built since its opening. We do not agree with appellant that there is any testimony that the cemetery has impeded the development of the lands now used for pasture, even though such an inference might possibly be drawn.
On this record, we are unable to say the chancellor’s finding was clearly against the preponderance of the evidence. Accordingly, the decree is affirmed.
Harris, C.J., not participating.
There was testimony indicating that the trailer was not visible from Woodland Heights and that the camper had been removed prior to trial. | [
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George Rose Smith, J.
This action for personal injuries was brought by the appellant against his employer, the appellee. The defendant did not have workmen’s compensation insurance at the time of the injury, and the plaintiff elected to sue at common law rather than to file a claim under the compensation law. Ark. Stats. 1947, § 81-1304. This appeal is from a judgment entered upon a verdict for the defendant.
A pivotal issue at the trial was whether the plaintiff at the time of the accident had so far deviated from the scope of his employment as to have become a mere licensee instead of an employee. Since we have concluded that the trial court gave an erroneous instruction upon this issue it is necessary for us to detail the facts only as they bear upon this question.
The appellee operates a stave mill, at which the plaintiff had been employed for about two months before he was hurt. The evidence is in conflict as to the work for which the plaintiff was employed. According to Branscumb’s own testimony he was hired to haul and peel stave bolts outside the mill, but when that work was done he was required to go into the mill and work at the culling machine. This machine, which uses a large knife blade to cut the bolts into staves, is admittedly dangerous to anyone not skilled in its operation. The plaintiff testified that while he was working at this machine a fellow employee bumped his arm and knocked his hand into the machine, causing the loss of two fingers. It is conceded that the fellow servant doctrine is not available as a defense to an employer who fails to obtain compensation coverage. Ark. Stats., § 81-1304. The fellow servant in question testified that the injury was his fault. Other employees having the same duties as Branseumb testified that they too were required to work at the culling machine, either at the foreman’s direction or with his knowledge.
At the trial the theory of the defense was that the plaintiff was employed to work outside the mill only. The foreman testified that only one employee was allowed to operate the culling machine, and when that man was absent the mill closed down. According to the foreman the plaintiff was neither directed nor permitted to enter the mill in the course of his work. Upon this theory the defendant requested, and the court gave, this instruction : ‘ ‘You are instructed that if you find from the evidence that the plaintiff was employed at the time of the injury to sort staves outside the mill proper and none of his duties required him to work at the operation of the machine at which he was injured, and you further find that he left the job that he was employed to do and without the knowledge or consent of the defendant or his foreman, but acting on his own volition and for his own purpose, undertook to operate the machine, and while doing so was injured, he would not be entitled to recover, and your verdict should be for the defendant.”
The plaintiff objected to this charge on the ground that it required the employer to have known of or consented to the plaintiff’s work at the culling machine on the particular day of the injury, in spite of the testimony offered by the plaintiff to the effect that it was customary for the plaintiff and oilier like einployees to work at this machine when they were abreast of their other duties. This objection was well taken, for the jury would have been entirely justified in concluding from the lan guage of the iilstruction that the defendant would be liable only if he or his foreman was actually aware that the plaintiff was working at the culling machine at the time of the accident.
At common law it is certainly true that an employee cannot, except in an emergency, turn aside from his assigned tasks and undertake a different and unauthorized line of work without losing his status as an employee. A typical case of such a deviation from the scope of employment is Taylor v. Grant Lbr. Co., 94 Ark. 566, 127 S. W. 962, where we held that by his actions the servant had become a licensee. But the rule is different when the unauthorized conduct has been so habitual that the jury may conclude that the employer is aware of the practice. American Ry. Express Co. v. Davis, 152 Ark. 258, 2, 38 S. W. 50, and 1063. In a case much like this one on its facts, Ward Furn. Mfg. Co. v. Pickle, 174 Ark. 463, 295 S. W. 727, we held that the test is whether the employer should have anticipated that the employee might attempt the act that is later said to have been beyond the scope of his duties. In the case at bar if the jury had believed that the plaintiff and other similar employees habitually worked at the culling machine, their verdict might well have been for the plaintiff. Since the questioned instruction can fairly be said to have ruled out that line of thought it must be considered erroneous.
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Leflar, J.
This appeal involves two cases which were consolidated for trial below. In one case, Mr. and Mrs. A were petitioners in Probate Conrt seeking to adopt a child. After entry of an interlocutory order of adoption, but before entry of any final order, Mr. and Mrs. B intervened asking that the adoption be denied and that the child be turned over to them as its natural parents. The other case arose out of a petition filed by Mr. and Mrs. B in Chancery Court against Mr. and Mrs. A seeking custody of the same child. Since the same judge presides in both courts, the cases were tried together. The decision was for Mr. and Mrs. A in each case, and Mr. and Mrs. B, appeal.
The child was born to C, now Mrs. B, but then an unmarried girl, on June 2, 1947. The mother cared for the child herself until February 7, 1948, when she placed it with Mr. and Mrs. A, agreeing to pay them $8 per week for its room and board. This she paid until April 10,1948. On that date she left for California. The baby remained with Mr. and Mrs. A, but they received no further payments for its board and room.
On November 20, 1948, Mr. and Mrs. A filed their petition for adoption of the child, and on June 17, 1949, the Probate Court’s interlocutory order of adoption was rendered. Consent of the mother to the adoption was filed in accordance with Ark. Stats., § 56-106, after the consent form was mailed to her in California and there on February 12, 1949, filled out and returned by her. Evidence at the hearing on the interlocutory order included a report of the Child Welfare Division of the State Department of Public Welfare to the effect that Mr. and Mrs. A were “conscientious, hardworking people, regular in their habits and financially able to assume the responsibility of rearing this child in a modest but wholesome manner.” It was brought out that they owned their own suburban home, which was modern and comfortably furnished, that Mr. A. was a carpenter by trade, that he also owned a farm, that they had given the child good care and were attached to it, that the child was in poor physical condition due to malnutrition when it was turned, over to tliem but that they, by medical care and personal attention, had restored it to good health It was on the basis of this evidence that the interlocutory adoption order was issued.
Appellant Mr. B is the putative father of the child. At the time of its birth, and until September 2, 1949, Mr. B, a sergeant in the U. S. Army, was married to another woman. On the date named his wife secured a divorce from him, and custody of their children. Then on October 15, 1949, he and C were married. Early in January, 1950, they filed their custody suit and their intervention in the As’ adoption proceeding. At the trial thereof, as already stated, Mr. and Mrs. A prevailed.
The principal argument presented for reversal, on behalf of Mr. and Mrs. B, is that the adoption order is ineffectual without the consent thereto filed by the mother, and that this consent was withdrawn before any final order of adoption was issued.
We have had occasion once before to discuss the question whether a consent to adoption filed under § 56-106 by the mother of an illegitimate child is final and conclusive on the mother, or can be withdrawn by her. In Combs v. Edmiston, 216 Ark. 270, 225 S. W. 2d 26, our holding was that such consent could be withdrawn, under the circumstances of that case, prior to the entry of the interlocutory decree of adoption. We also mentioned, but had no occasion to pass upon, the question whether a consent given in statutory form by the mother could be withdrawn after entry of an interlocutory order of adoption and before final order, so as to defeat the adoption.
As pointed out in Combs v. Edmiston, there are three lines of authority on the latter question. The weight of authority among the older decisions was that the natural parent’s consent to adoption might be effec tively withdrawn or revoked at any time before the adoption was finally approved and decreed by the court. Re White’s Adoption, 300 Mich. 378, 1 N. W. 2d 579, 138 A. L. R. 2034. But it was pointed out that “the trend of the more recent authority is toward the position that where a natural parent has freely and knowingly given the requisite consent to the adoption of his or her child, and the proposed adoptive parents have acted upon such consent by bringing adoption proceedings, the consent is ordinarily binding upon the natural parent and cannot be arbitrarily withdrawn so as to bar the court from decreeing the adoption, particularly where, in reliance upon such consent, the proposed adoptive parents have taken the child into their custody and care for a substantial period of time, and bonds of affection, in the nature of &■ ‘vested right’, have been forged between them and the child.” See Re Adoption of a Minor, 79 U. S. App. D. C. 191, 144 Fed. 2d 644, 156 A. L. R. 1001. Finally, we stated the third view in the following language :
“It has also been said that, from a consideration of the cases generally, the question whether the natural parent may revoke consent previously given depends upon all the circumstances of the particular case, which may include such a variety of matters as the terms of the particular statute; the circumstances under which the consent was given; the length of time elapsing, and the conduct of the parties between the giving of the consent and the attempted withdrawal; whether the withdrawal was made before or after institution of adoption proceedings; the nature of the natural parents’ conduct with respect to the child both before and after consenting to its adoption; the ‘vested rights’ of the proposed adoptive parents with respect to the child; and, in some cases, the relative abilities of the adoptive parents and the natural parents to rear the child in a manner best suited to its normal development, and other circumstances indicative of what the'best interests of the child require. Annot., 156 A. L. R. 1011.”
Of these three views, we now conclude that the one last stated is preferable. It is the one under which maximum consideration can be given to the welfare of the child itself while at the same time the interests of the competing adults can he given fair weight. It has less of arbitrariness about it than has either of the more extreme views.
Applying then the rule which permits consideration of all the surrounding circumstances in the case, we hold that the mother’s consent in the instant case could not be withdrawn, as was attempted. The baby has lived with Mr. and Mrs. A for most of the three years of its life; they are the only parents it has really known. The mother left it in their hands and made no effort to support it or secure its custody from April 10, 1948, until the custody suit was filed in January, 1950. She gave her consent to the adoption freely and without any suggestion of coercion — there were no questionable incidents to the consent such as were present in Combs v. Edmiston, supra. The putative father, now the mother’s husband, never at any time supported or offered to support the child to any extent whatever, and even appeared somewhat reluctant, in the course of his testimony, to say that he would pay Mr. and Mrs. A for earing for the child in case it should he awarded to him and his wife. Mr. and Mrs. A have a good home in which to keep the child, whereas Mr. and Mrs. B have no home. Mr. B testified that he intended to make service in the Army his life career, that he expected to be ordered overseas shortly, and that he hoped to make arrangements for his new wife and the baby to follow him overseas later. He suggested no plan as to how they would live in the meantime.
Next, it is urged on behalf of Mr. and Mrs. B that the baby became the legitimate child of both of them, by reason of the father’s subsequent marriage to the mother and recognition by him of the child as his own, under Ark. Stats., § 61-103. From this it is argued that consent by the mother alone, to the adoption, does not satisfy the requirements of the adoption statute, § 56-106, since consent by the mother alone suffices only in the case of an illegitimate child. The answer to this is that the adoption is effective as of the date of the interlocutory order, unless later set aside at the final hearing for good reason (§ 56-108), and the consent is required as of the date of the interlocutory order. At the relevant date in this case the child was illegitimate; and the adoption had already become effective, subject to the final hearing, when his natural parents married each other.
We find in the record no reason for refusing final approval to the interlocutory order of adoption, despite the intervention. Since the right to custody of the child depended upon the outcome of the adoption suit, the petition by Mr. and Mrs. B for custody must also fail. The order and decree appealed from are affirmed.
The report of the Child Welfare Division also pointed out that the families of the child’s natural parents lived in the same community as Mr. and Mrs. A, and knew where the child was, which fact might cause trouble in the future, and for this reason only the Division’s recommendation was against the adoption. The soundness of this recommendation as an original matter, is evidenced by the present litigation.
A separate ground that might possibly have been relied upon by the adoptive parents is the provision in § 56-106 that “the consent of a parent or parents may be dispensed with if . . . the parent has abandoned the child for more than six months next preceding the filing of the petition,” | [
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George Rose Smith, Justice.
The outcome of this litigation between neighbors turns upon whether Tread-way Road, in Pulaski county, is a public road or a private road. The chancellor found it to be private and entered a decree allowing the appellees to maintain at its entrance a sign reading: “Private Road — Use Only By Permission or Right.” The appellant insists that Treadway Road is actually a public road and that therefore the sign should be taken down.
The road in question, only 669 feet long, runs north from Faulkner Road, an east-west county road. The appellees’ property is on the west side of Tread-way Road, a little more than 200 feet north of Faulkner Road. The appellant’s property lies slightly -farther to the north and about 500 feet east of Treadway Road. For a number of years Treadway Road has provided access to the houses owned and occupied by the parties.
In 1967 the appellant King and three other landowners brought this suit to enjoin various defendants from obstructing Treadway Road. The appellee Lovell, joined as a defendant, filed an answer asserting that Treadway Road was in fact a private driveway in which the plaintiffs had no “rights of egress and ingress.” The appellant King, as a plaintiff, then filed a reply stating that “in truth and in fact the-said Treadway Road is a private driveway, and plaintiff [King] has no rights arising by virtue of prescription.” Apparently the other three plaintiffs did not join in King’s concession that the road was a private driveway.
On March 18, 1968, the chancellor entered a decree dismissing the suit as to Lovell’s codefendants and making this finding with respect to Lovell and King: “That under the evidence in this case the defendant, Clyde Lovell, Jr., should be permanently restrained and enjoined from interfering with the use by Chester King, Sr., (and his successors in title) of the road known as Treadway Road as a means of egress and ingress from and to his property to and from Faulkner Road, and he is hereby -so restrained from interfering with such use.” There was no appeal from that decree.
In 1972 King filed the present petition, asserting that Lovell was interfering with King’s use of Tread-way Road and asking that Lovell be held in contempt of court and be enjoined from further interference with King’s rights. At a hearing the parties introduced testimony -bearing upon the public or private character of Treadway Road. The chancellor, as we have said, found the road to be a private one and permitted the Lovells to erect a sign so stating.
We agree with the chancellor. In the first place, the 1968 decree appears to be conclusive as between King and Lovell. The binding effect of a judgment is to be determined by the pleadings as well as by the judgment itself. Webb v. Herpin, 217 Ark. 826, 233 S.W. 2d 385 (1950). Here both King and Lovell had filed pleadings averring that Treadway Road was a private driveway. The chancellor evidently adopted that view, because the decree recognized king’s rights in the road only as a means of egress and ingress from and to his property. That limitation in the decree is not in harmony with King’s present assertion that Treadway Road is a public thoroughfare in which he has unlimited rights.
In the second place, the chancellor again found, in the supplementary decree now before us, that Tread-way 4s a private road. That finding is not contrary to the weight of the evidence. The fee title to the strip occupied by the road is privately owned. There has been no formal dedication of a right of way to the public. It does not clearly appear that the road has been used by the public in general other than as a means of access to a few homes in the vicinity. Such a restricted user could be regarded as giving rise to a private easement rather than to a public one. See Barbee v. Carpenter, 223 Ark. 660, 267 S.W. 2d 768 (1954). Although certain witnesses living on Lawson Road testified that they used Treadway Road as a means of access to the upper Hot Springs highway, the relationship of the three roads to one another -is so inadequately described that we are unable to follow the appellant’s argument in this respect. Upon the record as a whole the decree does not clearly appear to be against the preponderance of the proof.
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Conley Byrd, Justice.
Appellant Ernest E. Standridge was given a life sentence in 1952 for the murder of his wife. In 1966 he was given a post conviction hearing on the identical issues now raised. On March 5, 1973, the trial court gave him a second post conviction hearing upon his allegation that three persons hostile to him were permitted to go into the jury room during the jury’s deliberation. Appellant’s testimony about the alleged occurrence was not corroborated by any witness. R. C. Warren who served on the jury testified positively that no one entered the jury room during the deliberation. The trial court denied appellant any relief both on the merits and because the issue had become res judicata. We agree for both reasons.
Affirmed. | [
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Ed. F. McFaddin, Justice.
This is a suit between parents involving the custody of their daughter born April 8, 1947. The mother, appellee, seeks to obtain the custody of the child.
The parents were divorced on January 15, 1949, and the mother consented to a decree which awarded the custody to the father. The decree recites:
“. . . there has been one child, a girl, born to this union, whose custody is now with the plaintiff, . . . a fit and proper person to have the care and custody of said child; it appearing to the Court that said defendant is not asking its custody, and it further appearing to the Court that said plaintiff has kept and cared for it all the time, and that he has arrangements made with his parents for its home, where he will support and care for it. . . .
“It is further considered, ordered and decreed that said plaintiff, H. B. Higginbottom, shall have, and he i's hereby awarded, the full care, custody and control of the said Betty Jo Higginbottom, but the defendant shall have the right to visit and see the said Betty Jo Higginbottom at stated and reasonable times. The Court retains jurisdiction only for the purpose of adjusting the matter of the custody and support of the minor child, Betty Jo Higginbottom. ”
The divorce decree was granted on January 15,1949; and ten days later the mother married another man and is now Mrs. Williford, the appellee. On June 3, 1949, she filed petition to obtain the custody of the child; and in the petition she claimed that she has remarried, and now has a suitable home for the child who would be properly cared for, if the custody be awarded the mother.
Appellee was the only witness testifying in support of her petition. A most glaring omission is the failure of her present husband — George Williford — to testify that he wanted the child in his home, and would be good to the little girl and assist in supporting her. The appellee has no source of income, and if she had the child, then George Williford would have to provide the home, food, and clothing; yet he did not testify in corroboration of his wife’s statement, even though the evidence strongly assailed the environment in which the mother would raise the child. On this latter point, George Williford’s mother testified to the effect that he and the appellee were not suitable persons to have the child.
On the other hand, the child’s father and the paternal grandparents (who now have the child) were supported by witnesses to the effect that the child is now in a good Christian home and being properly cared for in every way. On this point the learned Chancellor said:
“There is no question in the Court’s mind about Oleo Higginbottom and his wife having a good Christian home, and the Court, knows that it would be a fine place for the child to stay; and the Court rather feels that the child might get better treatment and be raised more properly if she is left there than if she is left with her mother; but the child is only two years and two months old, and, of course, the presumption is great that the mother ought to have the child. ’ ’
It is unnecessary to detail all the evidence in this case, and also to discuss and delineate our child custody cases, a few of which are: Myers v. Myers, 207 Ark. 169, 179 S. W. 2d 865; Gregory v. Jackson, 212 Ark. 363, 205 S. W. 2d 471; Marr v. Marr, 213 Ark. 117, 209 S. W. 2d 456, and Thompson v. Thompson, 213 Ark. 595, 212 S. W. 2d 8. In the case last cited Mr. Justice Robiks stated our holding in this language:
“While any order as to custody of a child is subject to future modification by the court making it, the rule, uniformly adhered to by us, is that before such modification may be made it must be shown that, after the making of the original order, there has been such a change in the situation as to require, in the interest of the minor, the change to be made, or it must be shown that material facts affecting the welfare of the child were unknown to the court when the first order was made.”
Even though the child is of tender years, still we hold that the custody should not be awarded the mother under the record now before us. There has been no such change in circumstances as make it for the best interests of the child to change the custody from that contained in the decree of January 15,1949.
Therefore, the decree of the Chancery Court (of July 26, 1949) is reversed, and the cause is remanded, with directions to deny the appellee’s petition for change of custody and to leave in full force the decree of January 15,1949.
The foregoing decree was based on the husband’s corroborated and then undisputed testimony:
“In about three weeks after our marriage she commenced leaving home, going away and staying for several days at a time. Sometimes she would stay for weeks before returning home. There would be no trouble — she would just leave out. Sometimes I would be there when she left, and sometimes I was not at home. When I would find her, she would be out with questionable parties, making parties of all kinds, drinking and carousing around, here and there. I would try to get her to come home, settle down and help me take care of the home and make a home what it ought to be; and she would not come in until she took a notion. That kept up until about three or four weeks before our baby was born, which was on the 8th day of April, 1947. Then in about four weeks after its birth she commenced leaving the home and going places, just as she had before, and kept it up until I quit, on the 11th day of November, 1948. When she would come in home she would stay at home maybe for a week, but never stay at home for more than two weeks at a time, until she would take off again.
“Q. Where would the baby stay when she would leave out or go away?
“A. She always left the baby with me. We are raising it on a bottle and my mother has helped me out a good deal in taking care of it. She always left it at home when she took off.” | [
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Dunaway, J.
Appellant, Wheeler Carson, questions the sufficiency of the evidence to sustain a jury verdict finding him guilty of second degree murder and fixing his punishment at twenty-one years in the penitentiary.
According to the witnesses on behalf of the State, these are the events that transpired prior to the fatal stabbing of the deceased, Chester Jones, by the appellant on the night of December 12, 1949:
About six o’clock in the evening, appellant and Ms brother, Finley Carson, joined the deceased, his cousin, Alberta Allen and one J. T. Baker at a cafe in Blythe-ville, Arkansas. The five of them drove to the Missouri state line, where they purchased a half pint of whiskey. After about thirty minutes they drove to a roadside establishment, Roy’s Place, on Highway 61, the group having consumed the liquor enroute. Here they drank two or three rounds of beer. The Carson brothers had been drinking all afternoon.
From Roy’s Place the party started for the Silver Slipper. Enroute Finley Carson announced that his brother, the appellant, could “whip any two sons-of-bitches” in the car. After first ignoring this assertion’ which was repeated several times, the deceased said he was getting tired of being called a son-of-a-bitch; he and the appellant got out of the car and had some words, but then shook hands and proceeded to town. Later Finley renewed his provocative remarks, and an argument ensued.
Following this argument, the car was stopped again and this time the deceased and appellant exchanged some blows, the deceased being the victor in the bout. They then shook hands, got back in the car and started to take the Carsons home. On the way, at appellant’s insistence that he wanted another beer, they stopped at the Silver Slipper, where the deceased went in and bought appellant a beer. While deceased was inside the Silver Slipper, appellant made the threat: “He whipped my tail once, I will get even with the son-of-a-bitch. ’ ’
Upon arrival of the party at the Carson home, the appellant remained at the car after his brother went to the house, and invited the others to come in for a drink. The deceased accepted this invitation, although he had been informed of appellant’s threat. After about five minutes, the deceased, who had been stabbed with a knife, came running out of the house in a bent-over position. He died on the way to the hospital. None of those in the car had heard any disturbance in the house.
At tlie trial it was shown that the deceased had suffered a breast wound about two inches long, that the breast bone had been cut through and the subclavicle artery severed.
The accused admitted having cut the deceased with a knife, but claimed he liad acted in self-defense. His testimony was that the deceased started another fight, after coming in the house uninvited; that at the time of the stabbing the deceased was “raising up” from behind a stove with a metal poker. The defendant testified that he only intended to hit the deceased in the arm to disable him. The defendant’s brother and father testified that they rushed into the front room, from a back room where the elder Carson had been asleep “till the racket started.” Neither saw the start of the fracas, and both testified that they did not see a poker or any other weapon in the hands of the deceased. Neither witnessed the fatal stabbing.
Appellant’s argument is that there is no proof of malice, and that the judgment must be reversed or reduced from second degree murder to voluntary manslaughter. To support this contention he relies upon the cases of McClendon v. State, 197 Ark. 1135, 126 S. W. 2d 928 and Bone v. State, 200 Ark. 592, 140 S. W. 2d 140. In the McClendon case the defendant had been convicted of first degree murder and in the Bone case of murder in the second degree; in both cases this court reduced the sentences to voluntary manslaughter.
It is, of course, true that the State must have proved that the killing was done with malice for a conviction of second degree murder in the case at bar to be sustained. But express malice may be proved or malice may be implied when no considerable provocation for the killing appears or where all the circumstances of the killing manifest an abandoned or wicked disposition. Ark. Stats. (1947) § 41-2204; Ballentine v. State, 198 Ark. 1037, 132 S. W. 2d 384.
In the instant case, the State’s witnesses testified as to circumstances and events from which the jury might well have found that the killing was done with malice. There was evidence of ill-feeling between the deceased and. the accused prior to the fatal encounter; and there was testimony that the appellant had made threats against the deceased. The knife wound must have been inflicted with considerable force to have cut through the breast bone. Since neither the defendant’s father nor brother saw the deceased with a poker in his hand when they ran into the room where, according to the father, the deceased “was backed up, right in the corner,” the jury was justified in believing that there was no provocation for the killing.
The facts in the McClendon and Bone cases, supra, are easily distinguishable from those in the case at bar. In both of those eases there was no proof of previous ill-feeling, threats, or difficulties between the parties. On the contrary, there was positive proof of amicable relationships prior to the time of the altercation, which in each instance began in a sudden heat of passion and continued without interruption until • one of those involved was killed.
Although appellant denied making any threat toward the deceased, and he and his brother gave a different version of the happenings of the evening, the jury evidently chose to believe the witnesses presented by the State. With the testimony in conflict, that was the jury’s prerogative.
The judgment is affirmed. | [
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Ed. F. McFaddin, Justice.
Appellants (brother and sister) instituted this suit to set aside two deeds executed by their father, F. M. Oliphant, to their brother, E. E. Oliphant, the appellee. It was alleged that F. M. Oliphant lacked sufficient mental .capacity to execute the deeds, and that they were obtained by undue influence. In defense to the suit, the appellee claimed that F. M. Oliphant possessed sufficient mental capacity, and that the deeds were executed in consideration of care, support, and payment of indebtedness. One deed, conveying 60 acres, was dated and acknowledged on March 11, 1935, and recorded on September 30, 1936. The second deed, conveying 40 acres, was dated and acknowledged on December 17,1938, and recorded on January 19, 1939.
The evidence at the trial disclosed that except for a few short intervals, F. M. Oliphant lived with hiá son, E. E. Oliphant, from 1934 until January 21, 1939, the date of F. M. Oliphant’s death. The appellants visited their father at extremely infrequent intervals during these years; and E. E. Oliphant and his wife had the entire care of F. M. Oliphant who was 78 years of age at the time of his death. There is no direct evidence of undue influence; but appellants claim that the undue influence was shown by the mental weakness of F. M. Oli-phant, together with the fact that he deeded all his property to E. E. Oliphant to the exclusion of the appellants.
The real issue in the case, therefore, is the mental condition of F. M. Oliphant at the time he executed the deeds in 1935 and 1938. In Bilyeu v. Wood, 169 Ark. 1181, 278 S. W. 48, Mr. Justice Hakt stated tire applicable rule:
“To invalidate a deed on the ground of the grant- or’s mental incapacity, the proof must show that the grantor was incapacitated from intelligently comprehending and acting upon the affair out of which the transaction grew, and that he did not intelligently understand and comprehend the nature and consequences of his act. . . . Kelly’s Heirs v. McGuire, 15 Ark. 555; Pulaski County v. Hill, 97 Ark. 450, 134 S. W. 973; Mc-Evoy v. Tucker, 115 Ark. 430, 171 S. W. 888; and Reaves v. Davidson, 129 Ark. 88, 195 S. W. 15.” See, also, Culling v. Webb, 208 Ark. 631, 187 S. W. 2d 173, and Braswell v. Brandon, 208 Ark. 174,185 S. W. 2d 271.
The burden was on the appellants, as plaintiffs, to establish F. M. Oliphant’s mental incapacity; and to sustain that burden, they offered the testimony of themselves and three others. Some of these witnesses had not seen F. M. Oliphant for several years prior to his death, but testified that with advance in age liis mental condition could not have improved over what it was the last time such witnesses observed him. On the other hand, appellee offered the testimony of sis witnesses, in addition to that of himself and his wife. We are impressed by the testimony of Dr. Pillstrom, who treated F. M. Oliphant for several years immediately prior to his demise:
“Q. Just state, Doctor, what his mental condition was at the time yon treated him during his last illness?
“A. Well, I would say he was sane, he had a heart condition and a kidney condition that was giving him trouble but it didn’t seem to affect his mental condition.
“Q. Doctor, was his condition such, at that time, that he was mentally capable of disposing of his property and making a contract?
“A. Tes, I would say it was.”
Furthermore, Otis Gould, son of one of the appellants, testified as to F. M. Oliphant’s mental condition:
“Q. Just state from your observation of Mr. Oli-pkaiit during the time you lived there and during the times you visited in the home up until the time of his death, whether or not his mind was sufficient that he knew the consequences of his acts?
“A. I think so.
i£Q. Do you think his mind was sound at that time?
“A. I think it was.
“Q. And during the times you visited there?.
“A. Yes.”
It would unduly lengthen this opinion to detail all of the testimony. The learned Chancellor held that the evidence offered by the plaintiffs failed to establish the mental incapacity of F. M. Oliphant; and with that holding we agree. Certainly we cannot say that the finding of the Chancery Court is against the clear preponderance of the evidence.
Affirmed.
This deed was signed by mark; but such is allowed by § 27-109, Ark. Stats. 1947; and the unwitnessed mark may be proven even by the grantee. See Dawkins v. Pettys, 121 Ark. 498, 181 S. W. 901, and eases there cited.
Although this case was filed October 5, 1939, it was not tried in the Chancery Court until September 13, 1949. Explanation for the delay is immaterial to the controversy. | [
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Holt, J.
November 19, 1948, appellant, Barnes, — a Negro non-resident of Arkansas, — while being held by officers at Hayti, Missouri, on suspicion of having committed burglary and grand larceny in Blytheville, Arkansas, was delivered by the Missouri officers to the sheriff of Mississippi County, who, without a warrant _for his arrest, transported him to Blytheville and placed him in jail there. At the same time that Barnes was brought to Arkansas, another Arkansas officer brought along an automobile, the property of Barnes, and parked, or stored, it near the jail in which appellant was imprisoned.
December 8, 1948, while appellant was still in jail, appellees brought suit against him, alleging in their complaint, in effect, that on or about November 5, 1948, Barnes in company with burglars broke into appellees’ store in Blytheville, carried away a safe and stole $2,300 in money, that Barnes was a nonresident, and that he damaged the safe in the amount of $500. They prayed for a writ of attachment on any property of Barnes and for judgment for $2,800. Proper affidavit was attached, writ of attachment issued, which together with summons on the complaint, were served upon appellant while still in jail. Bond was also executed and the automobile belonging to Barnes taken in charge by the sheriff.
Thereafter, on January 27,1949, while appellant was still imprisoned, judgment by default in the amount of $2,800 was taken against appellant by appellees. The judgment in part recited: “And it further appearing that a writ of attachment was issued out of this court on the 8th day of December, 1948, and that the sheriff levied on the 8th day of December, 1948, on the following property, to-wit: One 1941 Plymouth Automobile Maroon Colored, two-door sedan, Mo. license No. 862-478 for the year, 1948, of the value of $500 which personal property remains in the hands of such officer.
“It is therefore further ordered that the lien of said attachment be and is hereby foreclosed on said property and that said sheriff shall seize and sell the same, or so much thereof as may be necessary to satisfy this judgment. ’ ’
May 12, 1949, during the same term of court, appellant filed motion to set aside the above default judgment primarily for the reason that appellant was at all times a nonresident of Arkansas, was brought into this State, and held here against bis will,, was never legally served with process, and during all of the proceedings herein, was confined in the County jail in Blytheville.
The trial court denied this motion and this appeal followed.
Appellees have not furnished us with a brief. The ■material facts appear to be undisputed.
For reversal, appellant says: “Asa matter of policy the Arkansas Supreme Court has always held that nonresident defendants in criminal prosecutions were immune from service of civil process during the time they were within the forum in attendance at the trial of the criminal action. ’ ’
The rule in this State seems well established that a non-resident party to either a civil or criminal action must be and is afforded full protection from all forms of civil process during bis attendance at court and for a reasonable time in going to and returning therefrom.
The trial court erred in denying appellant’s motion to set aside the default judgment in the circumstances.
This court in the case of Martin v. Bacon, 76 Ark. 158, 88 S. W. 863, 113 Am. St. Rep. 81, 6 Ann. Gas. 336, said: “It is well settled by the great weight of authority that a party cannot be lawfully served with civil process while he is in attendance on a court in a State other than that of his residence, either as a party or a witness, or while going to and returning therefrom. Murray v. Wilcox, 122 la. 188, 97 N. W. 1087, 64 L. R. A. 534, 101 Am. St. Rep. 263; Powers v. Arkadelphia Lumber Company, 61 Ark. 504, 33 S. W. 842, 42 Cent. Law J. 397, and note; note to Mullen v. Sanborn, 79 Md. 364, 29 Atl. 522, 25 L. R. A. 721, 47 Am. St. Rep. 421. In this State a party, in civil actions and criminal prosecutions, can testify as a witness, and may be exempt from service of civil process in both capacities. * *
“Judge Trent, in Small v. Montgomery (C. C.), 23 Fed. 707, said: ‘AH the United States circuit judges who have passed upon the question of late, as well as dicta by the Supreme Court of the United States in respect thereto, reach this result, viz: that where a party in good faith is brought within the jurisdiction of the State, or detained therein, being a nonresident, either as party to the suit, or as witness in another suit, he is not subject to service,’ ” and in Caldwell v. Dodge, 179 Ark. 235, 15 S. W. 2d 318, this court reaffirmed the above holding. We there said:
“It is said that the conflict in the authorities is only as to the right of a nonresident defendant in a criminal case to immunity from service of civil process- As we have already seen, this court has held that a nonresident of the State is exempt from service of civil process while his presence in the State is in compliance with the conditions of a bail bond. Martin v. Bacon, 76 Ark. 158, 88 S. W. 863, 113 Am. St. Rep. 81, 6 Ann. Gas. 336. Other cases adopting this view may be found in a case-note to 14 A. L. B-. at 775. The reason is that the exemption from the service of civil process while under arrest or to avoid the forfeiture of a bail bond is not simply a personal privilege but is a protection granted to the party or witness by the court as a matter of public policy. Under the decisions of our own court above cited the party is afforded full protection from all forms of civil process during his attendance at court and for a reasonable time in going and returning.”
The text writer in 42 Am. Jur., page 131, section 152, under the topic, “Nonresident Defendant in Criminal Cases,” says: “Many well-reasoned decisions take the position that the rule exempting parties and witnesses in a civil case from the service of civil process is equally applicable to a nonresident who comes into a state and submits himself to the jurisdiction of a state court in answer to an indictment or information instituted in good faith charging him with a criminal offense,” and in support of the text, the above case of Martin v. Bacon is cited.
Accordingly, the judgment is reversed and the cause is remanded with directions to proceed in a manner consistent with this opinion. | [
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J. Fred Jones, Justice.
James W. Gibbons was indicted by a Pulaski County grand jury for the crime of pandering. At his trial in the Pulaski County Circuit Court certain tape recordings were offered in evidence by the state and refused by the trial court. A mistrial was declared in connection with some matter not in the record before us, and the state brings this appeal assigning three errors in connection with the trial court’s refusal to admit the sound recordings in evidence. The appellee Gibbons contends that there is no authority for an appeal by the state from an interlocutory order and we agree.
The appeal in this case was perfected under the provisions of Ark. Stat. Ann. § 43-2720 (Repl. 1964) setting out the method of perfecting an appeal in a felony case where an appeal on behalf of the state is desired. Ark. Stat. Ann. § 43-2733 (Repl. 1964) sets out the procedure for appeals in misdemeanor cases when an appeal by the state is desired. The state apparently relied on Ark. Stat. Ann. § 43-2706 (Repl. 1964) in attempting this appeal from an interlocutory order. This statute was repealed by Act 333 of 1971 but it originally read as follows:
“An appeal shall only be taken on a final judgment except on behalf of the State.” (Emphasis added).
We have held that the state was entitled to appeal from the entry of an interlocutory order in felony cases under this statute. See State v. Flynn, 31 Ark. 35; State v. Robinson, 55 Ark. 439, 18 S.W. 2d 541.
In State v. Langstaff, 231 Ark. 736, 332 S.W. 2d 614, we held that the state was not entitled to an appeal from an interlocutory order in a misdemeanor case and pointed out that § 43-2706 was a part of Title 9, Art. 1, of the Criminal Code which is applicable only to felonies and not to misdemeanors.
Act 333 of the Arkansas Legislature for 1971 was an Act to simplify the procedure for appeals from the circuit court to the Supreme Court in criminal cases. After providing for an absolute right of appeal from misdemeanor as well as felony convictions in the circuit courts, this Act concludes with §§ 13 and 14 as follows:
“SECTION 13. Appeal by the Prosecution. The manner in which the state or other prosecuting party may appeal in a criminal case is not altered by this act.
SECTION 14. Repeal of Laws. All laws and parts of laws in conflict herewith, including but not limited to the following, are hereby repealed: Ark. Stat. Ann. §§ 43-2301, 43-2701, 43-2703, 43-2704, 43-2705, 43-2706, 43-2708, 43-2709, 43-2710, 43-2711, 43-2712, 43-2713, 43-2723, 43-2725, 43-2731, 43-2732, 43-2734, 43-2736, 43-2737, 43-2738.”
Thus it is seen that § 43-2706, supra, was repealed outright but §§ 43-2720 and 43-2733 were not disturbed by Act 333.
The case of State v. Cosentino, 252 Ark. 68, 477 S.W. 2d 460, was another appeal by the state from an interlocutory order in a misdemeanor case which was considered by this court in March, 1972, after the effective date of Act 333 of 1971. In that case we followed our decision in State v. Langstaff, supra, and concluded that opinion as follows:
“Without deciding the point, we call attention to the possibility that the State’s privilege of appealing from interlocutory orders in felony cases, under Ark. Stat. Ann. § 43-2706 (Repl. 1964), may have been abrogated by §§ 13 and 14 of Act 333 of 1971. See Ark. Stat. Ann. §§ 43-2706 and -2720.1 (Supp. 1971).” (Emphasis added).
As already pointed out, the appeals in Langstaff and Cosentino were from interlocutory orders in misdemeanor cases and our decisions in those cases turned on the fact that the exception in favor of the state found in § 43-2706 simply did not apply to misdemeanor cases. In the case at bar, the accused is charged with a felony and we now hold, as we strongly indicated in Cosentino, that Ark. Stat. Ann. § 43-2706 (Repl. 1964) was repealed by Act 333 of 1971, and the state no longer has the right of interlocutory appeal reserved to it by the exception in § 43-2706, supra.
The state argues that since'the manner in which the state or other prosecuting pafty may appeal in a criminal case was specifically excluded from the effects of Act 333, the state may still appeal from an interlocutory order in a felony case. We find no merit in this argument. The state may still perfect its appeals by the procedures set out in §§ 43-2720 and 43-2733 which were not repealed or altered by Act 333.
The appeal is dismissed. | [
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Per Curiam.
This Court after having on April 10, 1950, affirmed judgments of conviction against the petitioners herein, issued an order withholding its mandate ■until June 1, 1950, in order to permit a petition for review by certiorari to be filed in tbe Supreme Court of tbe United States. Petitioners now state that tbe United States Supreme Court, due to lack of time, bas not acted upon tbeir request for review by certiorari and, due to tbe fact that tbe United States Supreme Court will shortly recess, no action can be taken on tbe petition for certiorari until tbe end of tbe recess, wherefore petitioners ask that this Court grant a further stay of its mandate and permit petitioners to remain free on bail pending final action by tbe United States Supreme Court on tbe petition for certiorari.
Tbe right to bail pending appeal after conviction is at common law a matter of judicial discretion in tbe individual case. That rule is unchanged by tbe Arkansas Constitution (Art. II, §§ 8, 9), and is changed by our statute, Ark. Stats., § 43-2714, only as to certain appeals in criminal cases pending before tbe Supreme Court of Arkansas. Tbe present case, involving petition for cer-tiorari from this Court to tbe Supreme Court of tbe United States, does not come within § 43-2714. Tbe common law rule of judicial discretion is here applicable.
Tbe situation in tbe present case is tbe same as if Buie 46 (a) (2) of tbe Federal Eules of Criminal Procedure were applicable. This reads :
“Bail may be allowed pending appeal or certiorari only if it appears that tbe case involves a substantial question which should be determined by tbe appellate court. Bail may be allowed by tbe trial judge or by tbe appellate court or by any judge thereof or by tbe circuit justice. ’ ’
This rule is of course not applicable in certiorari from this Court to tbe Supreme Court of tbe United States, but we quote it as illustrative. of tbe reason for our conclusion in this case.
Tbe majority of this Court are of tbe opinion that tbe record in tbe present case presents no substantial federal question which would justify tbe exercise of our discretion in favor of granting bail after conviction and affirmance of conviction. We therefore refuse to stay the mandate further, and defendants are required to surrender themselves in accordance with the prior orders of this Court. | [
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DuNaway, J.
Appellant, Tlielma Ogle, brought an action in ejectment against appellees, Hodge and wife, and Overton and wife. Appellant sought to recover a strip of land about eight feet wide on the north side of lots owned by the appellees, ownership of which she claimed by adverse possession. The Hodges and Over-tons answered with a general denial and motion to transfer to equity, alleging that appellant was attempting to interfere with the use of a public road, that she was insolvent, and that they would be irreparably damaged unless appellant was restrained from interfering with their use of said road.
The cause was transferred to equity. This appeal is from a decree dismissing Thelma Ogle’s complaint and permanently enjoining her from interfering with the use of the public thoroughfare in question.
All of the property involved in this litigation is located in what was originally platted in 1924 as the J. P. Pride Subdivision to the City of Btytheville, Arkansas. The lots now owned by the Hodges and the Over-tons were situated in Block " J” of said subdivision, and were bounded on the north by Carolyn Avenue. This and other property had been mortgaged by Joe P. Pride to the American Central Life Insurance Company, which in May, 1936, bought in the property at a foreclosure sale. Thereafter the various owners of the property in the J. P. Pride Subdivision petitioned the County Court of Mississippi County, Chickasawba District, to reduce the lots in said subdivision to acreage and to close the streets therein. On September 26, 1936,. the County Court granted the prayer of the petition and ordered a new plat to be filed.
This new plat, known as the Replat of the J. P. Pride and Gateway Addition, was subsequently duly filed, showing the "Irregular Lots” into which the old subdivision had been re-divided by order of the County Court. Old Block “J” was re-platted as "Irregular Lots” 44, 45, and 46; and Carolyn Avenue as "Irregular Lot” 43. Lot 43 is shown to be 702 feet in length east and west and 60 feet in widtli north and south, immediately adjacent to the north lines of Lots 44, 45 and 46.
Appellant Ogle is the owner of part of Lot 45, not involved in this suit; the N/^ of the West 252 feet of Lot 43; and “225 ft. out of Lot 43 located between the East 225 ft. and the West 252 ft. of said Lot 43.” It is the last-described property that adjoins the property of the Hodges (west 50 ft. of Lot 46) and of the Overtons (the balance of Lot 46).
North of Lot 43, formerly Carolyn Avenue, is Lot 50 owned by Moore Brothers. Ever since appellant acquired the described interests in Lot 43 on September 3, 1940, and apparently for some years before there has been a fence between Lots 43 and 50, referred to by the witnesses as “Moore Brothers’ fence.”
We shall first discuss appellant’s claim by adverse possession to the north eight feet of the Hodgé and Over-ton lots, and then consider the question of whether there is a public thoroughfare over Lot 43.
It is appellant’s theory that under her deed to the above-described middle section of Lot 43 she is entitle to a lot 60 feet wide; and that she went into possession of a strip of land 60 feet in width, measured from the “Moore Brothers’ fence.” Apparently everyone had assumed that this fence was on the true line between Lots 43 and 50 until the dispute arose between appellant and appellees as to the correct boundary between their property, when the appellees built fences and driveways and* otherwise exercised affirmative acts of ownership, on the strip of land now in litigation. A survey then made disclosed that the true line between Lots 43 and 50 was approximately eight feet north of the fence.
Appellant, and other witnesses in her behalf, testified that she had used Lot 43 as farm property, planting it to various crops, beginning in April, 1941, and continuing until October 3, 1947, when appellees began occupying the disputed strip to the south of Lot 43. According to this testimony the first visible and notorious acts of ownership upon which appellant based her claim of title by adverse possession occurred less tlian seven years before appellees exercised their right of possession of land to which they admittedly had record title. This proof was insufficient to establish title by adverse possession. Culver v. Gillian, 160 Ark. 397, 254 S. W. 681.
In addition, appellant’s own testimony on cross-examination showed that any possession she may have had of any part of Lot 46 was not under a claim adverse to the true owners.
“Q. Now, Miss Ogle, when you bought the 225 feet out of Lot 43 you naturally supposed that Moore’s fence was on his line, didn’t you?
‘ ‘ A. Yes, sir; he said it was.
££Q. He said it was on his line?
• “A. Yes.
“Q. And you really and truly believed at that time that that was a fact?
“A. Yes.
££Q. Then it was your intention to measure 60 feet south of the time line, wasn’t it?
“A. The fence, I thought that was the true line.
“Q. You thought the fence was the true line?
“A. Yes.
££Q. And it was your intention to measure 60 feet south from the true line?
“A. Yes, sir.
££Q. And it was your intention to take the 225 by 60 feet strip out of Lot 43 from one true line to the other true line, wasn’t it?
“A. Yes, sir.
££Q. You knew Lot 43 was 60 feet wide?
Í£A. Yes, sir.
££ Q. And it was your intention to take from the true line oh the north to the true line on the south?
“A. Yes, sir.
‘‘ Q. But you were going on tlie assumption and belief that Moore’s fence was on the true line!
“A. Yes, sir. He said it was on the line,- and that is what the company that sold it to Houston measured it from. Then Houston sold it to me.
“Q. But it was your intention all the time to take the 60 feet as shown by the plat?
“A. Yes.”
We think this case comes within the rule that where one, through mistake, takes possession of adjacent lands intending to claim only to the true boundary, the act is not adverse. See Martin v. Winston, 209 Ark. 464, 190 S. W. 2d 962, and cases therein cited at page 467.
The Chancellor correctly held that appellant failed to prove title by adverse possession to the eight foot strip across appellees’ property.
We now turn to a consideration of the conflicting claims concerning the presence of a public road across Lot 43, or what had been Carolyn Avenue. Appellant contends that Carolyn Avenue was closed as a public thoroughfare by virtue of the county court order of 1936. She further contends that any use of a road across this property since 1936 had been merely as a private driveway in which the public acquired no rights.
On the other hand, appellees contend, as set out in their answer (they have not favored us with a brief), that the county court order closing the street was void on its face; that irrespective of the validity of the order, Carolyn Avenue had been continuously used as a public thoroughfare from 1924 until the time of this suit, and that the public had thereby gained a prescriptive right in said roadway.
The testimony was in conflict as to the length of time Carolyn Avenue had been used as a road, and as to the nature and extent of such use. Although the basis upon which the Chancellor enjoined appellant’s interference with use of this roadway does not appear, we think tlie evidence justifies a finding that the public had acquired a way across this property by prescription, even assuming a valid order by the county court in 1936 vacating Carolyn Avenue as a road or street. Since the decree will be affirmed on this ground, we do not deem it necessary to discuss the validity of the county court order.
Oliver Coppedge, a son-in-law of Joe P. Pride, who originally owned all the property in question, testified that to his knowledge since 1935 Carolyn Avenue, or Lot 43, had been used continuously as a street.
Appellant herself testified that in 1944 she had built a store at the extreme west end of Lot 43 (the part described as N^ of the West 252 feet of Lot 43, not the middle section which adjoined the appellees). She testified that the customers of her store came in from the east on a road across Lot 43, partly on her property and partly on an adjoining strip owned by Mitchell Houston. (He owned the S^2 of the West 252 feet.) She further testified that in 1942 “we did open up room for one car to drive through” and that cars did drive through. Appellant also testified that her neighbors came in and out over Lot 43, and that it was graded into a street in 1945.
Mitchell Houston, owner of the adjoining part of Lot 43, testified on cross-examination that a road does exist through this property, which was graded in 1945 or 1946 by the county. Other witnesses for appellant admitted that there was a graded street in to the store and that it was used by the public.
From the testimony of appellant’s own witnesses it is clear that from 1942 there was a road used by the public. Coppedge’s testimony, as already stated, was that this use bj^ the public went back as far as 1935. We have concluded that the preponderance of the evidence shows the establishment of a public road by prescription, by its open, continuous and adverse use by the public for a period of more than seven years. Harrison v. Harvey, 202 Ark. 486, 150 S. W. 2d 758.
The decree is affirmed.
Justice Leelar dissents. | [
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Hart, C. J.,
(after stating the facts). The decree of the chancery court was correct. No statutory right of redemption from the sale under the mortgage exists because the mortgagor had waived his right of such a redemption in the mortgage. Smith, v. Simpson, 129 Ark. 275, 195 S. W. 1067.
Independent of the statute allowing the redemption by paying the amount for which the property is sold with interest and costs, there is in equity a right to redeem from the mortgage, which right may be exercised by the mortgagor or any one claiming the equity of redemption under him. The rule in equity, however, requires that, to redeem property sold under a mortgage for less than the mortgage debt, the whole mortgage must be paid or tendered into court, and it is not sufficient to tender the amount for which the property sold. Wood v. Holland, 53 Ark. 69, 13 S. W. 739 ; Smith, v. Simpson, 129 Ark. 275, 195 S. W. 1067.
The reason is that, the debt being a unit, no party interested in the whole premises or in any portion of them can compel the mortgagee to accept a part of the debt and to relieve the property pro tanto from the lien. In such cases, a mortgage in equity and in fact is only a security for the payment of a debt; and it is essential, in order to exercise what is known as the “mortgagor’s equity of redemption,” that the whole of the mortgage indebtedness must be tendered and paid.
Appellant only tendered the amount of the bid at the foreclosure sale which was less than the whole amount of the mortgage indebtedness. Hence the rule of the court was correct; and in this view of the matter it is not necessary to decide whether appellant waited too late to exercise the right of redemption. Therefore the decree will 'be affirmed. | [
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Humphreys, J.
The issue involved on this appeal is whether a purchaser of personal property at'a void tax sale thereof can recover his purchase money for failure of his title. After appellant, as collector of taxes for Pulaski County, had sold certain machinery situated in a building known as the Twin City Ice Company in North Little Rock, Arkansas, to D. D. Panich for the tax assessed against it for the year 1928, amounting to $755.25, including penalty and costs, and, after having received the money and receipted for same, he instituted this action on May 7,1930, to establish a lien upon said machinery and again recover the taxes, penalties and costs for the year 1928, wherein he made the appellees herein parties defendant.
Appellee, D. D. Panich, filed a separate answer and cross-complaint, praying for the return of the money he paid at the tax sale, in which he alleged that appellant by deputy levied a tax lien upon and sold the machinery to him and retained his money, notwithstanding the title he sought to purchase failed.
On the 3rd day of May, 1930, appellant entered an agreement with appellee, Continental Credit Company, to release the machinery from the tax levy and allow the removal of same, upon it depositing $645, the correct amount of taxes claimed to be due thereon less penalty and costs, which amount should be held in lieu of the machinery pending the determination of the tax liability thereon.
On the 16th day of May, 1930, said Continental Credit Corporation filed an answer in which it denies that taxes were extended for the year 1928 based upon the assessment of the ice machinery by the receiver for the Morgan Utilities, Inc., or that any taxes were extended for the year 1928 against said machinery, or that the assessor of Pulaski County, or any other person, made a delinquent assessment on the property, or that D. D. Panich was purchaser at a tax sale of the machinery, or that appellant retained any money that D. D. Panich paid to purchase the machinery at the tax sale.
On July 29, 1930, the cause was submitted to the court on the pleadings and testimony resulting in a finding that the sale of the machinery to D. D. Panich was illegal; that he was entitled to a return of the penalty and costs amounting to $124; and rendered a decree dismissing the cross-complaint of D. D. Panich for a return of that part of the purchase money paid for taxes assessed against the machinery and also dismissing appellant’s complaint against appellee, Continental Credit Corporation.
The parties to the suit stipulated that the tax sale of the machinery for the taxes of 1928 which D. D. Panich purchased was void.
The record reflects that the machinery brought $755.25 at a void tax sale, the amount of the taxes, penalties and -costs; that said amount was paid to appellant and a receipt issued therefor.
The record contains testimony tending to show that D. D. Panich bought the property at a void tax sale for Morgan Utilities, Inc., in whose name the property was first assessed and who claimed to be the owner thereof at the time same was assessed and also when same was sold for the alleged delinquent taxes for 1928. Treating him, however, as a stranger to the title of the machinery when he purchased same at the void tax -sale, and treating the money he paid therefor as his own, he was -not entitled to a return of any part of the purchase money when his title failed. In this State the doctrine of caveat emptor applies in its full force and effect to purchasers at an invalid tax sale. The rule bars a purchaser at a void tax sale from recovering any part of his purchase money upon the theory that he is speculating as to the genuineness of the title upon a very small investment. St. L. I. M. & S. Ry. Co. v. Alexander, 49 Ark. 190, 4 S. W. 753 ; Nevada County v. Dickey, 68 Ark. 160, 56 S. W. 779.
The decree refunding $124 -of his purchase money to D. D. Panich is reversed, and his action therefor is dismissed. In all other respects the decree is affirmed. | [
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Conley Byrd, Justice.
This is an appeal by Howard Porter from a summary judgment in the amount of $11,122.00 entered in favor of James L. “Dobie” Deeter and NaDean Deeter d/b/a Deeter Real Estate for a commission allegedly due upon the sale of a bulk oil plant.
At the bottom of an itemized list of property dated 9/27/71, is an agreement admittedly signed by Porter which provides:
“Owner hereby agrees to give Deeter Real Estate (Agent) an Exclusive Listing on the above listed property & equipment for a period of ninety (90) days; also agree to pay Agent five per cent (5%) commission. If sold at a reduced price, commission will be reduced as agreed by Owner and Agent.”
The complaint alleged that Porter, on March 1, 1972, closed a sale to Jerry Ethridge that was negotiated during the 90 day listing period, for the sole purpose of avoiding the payment of a real estate commission to appellees. The answer denied that the sale was made during the 90 day period and affirmatively alleged that appellees in obtaining the exclusive listing represented that the contract was for the purpose of preventing other real estate agencies from contacting Porter. The appellees do not contend that they procured the purchaser or that the sale resulted from their efforts.
Through interrogatories it was determined that Porter sold the property described in the listing contract for $222,440.00 to Ethridge and that the transaction was closed on March 1, 1972. Based upon the foregoing information appellees moved for summary judgment contending there was no genuine issue as to any material fact. Porter responded: (1) denying that the property was sold during the 90 day listing period; (2) contending that he was entitled to have a jury pass on the issue of whether the contract was an exclusive listing contract or an exclusive sales contract; and (5) pointing out that appellees had not produced a ready, willing and able buyer during the exclusive listing period. The affidavits attached to the response tend to support Porter’s contention that no sale was made during the 90 day period. Thereafter appellees’ counsel filed a reply to Porter’s response to the motion for summary judgment including therein an excerpt from an alleged deposition taken of Porter. The trial court, based upon the motion for summary judgment, the interrogatories, the affidavits of Porter and Ethridge and the response to the motion for summary judgment which contained excerpts from the alleged deposition of Howard Porter, awarded ap-pellees a summary judgment in the amount of $11,122.00 —that amount being 5% of the full sale price of $222,-440.00. For the reasons hereinafter stated, we reverse.
1. The rule is that before a movant is entitled to summary judgment, he must show that there are no issues of fact. Ark. Stat. Ann. § 29-21 l(c)(Supp. 1975). The appellees in contending that the agreement here involved prohibited Porter from selling the property without becoming liable for the broker’s commission rely upon such cases as Halbert v. Block-Meeks Realty Co., 227 Ark. 246, 297 S.W. 2d 924 (1957); Blumenthal v. Bridges, 91 Ark. 212, 120 S.W. 974 (1909); and Hardwick v. Marsh, 96 Ark. 23, 130 S.W. 524 (1910). Since the language in those cases all involved or referred to “exclusive sales” of property as distinguished from the language here which only refers to “exclusive listing” of the property, we do not find them controlling of the issue raised in Porter’s answer. The contract here is somewhat ambiguous particularly in view of Porter’s affirmative allegation in his answer that it was represented to him as an agreement solely for the purpose of preventing him from doing business with other real estate agents. Consequently, a fact issue remains as to whether Porter reserved a right to sell the property.
2. The record, although certified as the complete record, does not contain the deposition of Howard Porter. The excerpt contained in the reply filed by appellee’s counsel to appellant’s response to the motion does not show affirmatively that appellees’ counsel was competent to testify to the matters therein contained. Thus we need not decide whether the deposition is conclusive of the issue of whether the sale was made during the term of the listing. We note that the affidavits of Porter and Ethridge raise a fact issue — it being their contention that the sale did not take place until after the expiration of the listing.
3. On this motion for summary judgment appellees do not even contend that during the exclusive listing period they furnished a purchaser ready, willing and able to buy the bulk plant. Having failed to so furnish a purchaser, they are not entitled to recover the full amount of the commission under the terms of the contract here involved even if it should ultimately be determined that Porter breached the contract by selling during the terms of the listing period. Manzo v. Parke, 220 Ark. 216, 247 S.W. 2d 12 (1952). Appellees’ reliance upon Halbert v. Block-Meeks Realty Co., supra, overlooks the fact that in that case the agreement provided for liquidated damages in the amount of the commission in the event of a sale by the owner.
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Butler, J.
Action in the court below by the appellee (plaintiff) to recover the sum of $218.18, total amount of assessments paid on certificate of membership in the Mutual Aid Union Society, the ground for recovery first alleged being for breach of contract and later by amendment to complaint for fraud and misrepresentation in the procurement of appellee’s application. There was a verdict and judgment against the defendant (appellant) in favor of the appellee for the sum sued for, from which judgment is this appeal.
The facts of this case, with the exception of the names, dates, and the issue raised by the amendment to the complaint, are identical with those of the case of Fowler v. Unionaid Insurance Company, 180 Ark. 140, 20 S. W. (2d) 611.
'The pleading designated by the. appellee as “Reply to the Answer of Defendant” was in fact an amendment to the complaint by which was engrafted on the suit on contract an action in tort. The effect of the allegations of this pleading was that appellee was induced to apply for1 the certificate of membership on the representation of the agent that the monthly assessment would never exceed the maximum rate named in the certificate, and the agent failed to acquaint him with the provision of the application iby which the officers of the Mutual Aid Union were constituted attorneys in fact to vote" at the annual elections for directors and on other questions arising for consideration at such meetings, and that, had he known that by his application a proxy would have been given the officers, or that the monthly assessment could be raised above the maximum named, he would not have signed the application or become a member of the Union, and that such statements of the agent and concealments by, him constituted a fraud in the procurement of the contract.
The allegations of the complaint as amended stated inconsistent causes of action, the first being that there was a valid contract and a breach of same resulting in damage to the plaintiff, the second being- that there was no contract because of fraud in the procurement of the application, andl that the sums paid under the purported contract should be recovered because of such fraud. It is clear that the evidence to sustain one allegation would be different from that necessary to sustain the other and therefore they ought not to have been joined. Conant v. Storthz, 69 Ark. 209, 62 S. W. 415.
On the question of fraudulent representations or concealments, appellee was the only witness. He was testifying' as to a transaction which’occurred about twelve years prior to the time of his testimony, and during which time nothing happened to cause him to remember the details of such transaction. It is therefore not surprising that his testimony was equivocal. Stated most favorably for the appellee and boiled down, it amounts to this: Appellee was an uneducated farmer about fifty-five years of age at the time, but could read and write. The solicitor for the Mutual Aid Union, who is called in appellee’s pleadings and testimony “the agent of the company,” was an ex-county judge of appellee’s county, well known to him and highly respected in the community. He solicited of the appellee his application for membership in the Union, procured his signature to the application, and issued a receipt for the amount paid upon the signing of the application, which receipt was kept by the appellee, exhibited on the trial, and on its face showed that the application ivas to be forwarded to the Mutual Aid Union, and, if accepted by the Union, the certificate of membership was to be issued and delivered to the appellee. At the time the application was solicited it was explained to the appellee that the assessments would be monthly, beginning with fifty-four cents and increasing one cent a month for eighty months and would not exceed in the future the sum of $1.34, the amount named as the maximum assessment. (This .is the only representation claimed by the appellee to have been made by the person who solicited of him membership in the Mutual Aid Union). He was not informed of the provision in the application by which the officers of the Union were constituted his attorneys in fact to cast his vote at the annual elections. He did not remember whether he read the application, but thought he 'did not, and did not remember whether or not it ivas read to him by the agent. He knew he had the right to attend the annual meetings of the Union and to oast his vote on questions there presented and was familiar with the fact that in organizations of that character the certificates were subject to, and controlled by, the by-laws. He continued to pay his assessments regularly until they reached the sum of $1.34 per month and such assessments as were demanded from time to time during a period of about twelve years and until he received notice from the appellant company that it had taken over the business of the Mutual Aid Union, by which notice he was advised of the different rates he might pay and the amount of benefit which would accrue under the various plans, the acceptance of any one of which was made optional with him, and that to continue the certificate for the benefit named therein a monthly assessment in excess of $1.34 was required. He refused to pay the increased assessments and brought this suit.
1. With the exception of the issue of fraud raised by the amendment to the complaint, the facts as above stated are practically identical with those in the case of Fowler v. Unionaid Life Insurance Co., supra. That case rules this. In the instant case, as in the case cited, the application for membership, the certificate, the bylaws of the Mutual Aid Union and the notice of reinsurance contract entered into between the Mutual Aid Union and the appellant company were introduced in evidence. By section 4 of the by-laws in force at the time of the application and at the time the contract of reinsurance was entered into authority was given the management of the Union to increase the amount or require additional or extra assessments when necessary, and that the policyholders would be subject to such increased or extra assessments. By section 31 of the by-laws the board of directors was given power, if expedient, to transfer or merge the membership in whole or in part with any other institution when deemed for the best interests of the membership.
The evidence in this case sets out the entire contract of which the by-laws are an essential part and of which fact appellee had knowledge. While the appellee never had in his possession a copy of the constitution and bylaws of the Union, it is not contended that he could not have obtained same, had he so desired, and he must be held to have known of the essential provisions of the same and to be bound by them, for the application, certificate and by-laws constitute the contract. Mutual Aid Union v. Purdue, 162 Ark. 551, 258 S. W. 375 ; Ill. Bank ers’ Life Assn. v. Byassee, 169 Ark. 230, 275 S. W. 519, 41 A. L. R. 379 ; Mutual Aid Union v. Lovitt, 170 Ark. 745, 281 S. W. 354 ; Fowler v. Unionaid Life Ins. Co., supra. In the last-named case we said: “If the entire contract is considered, there can he ho donbt that the right to change or raise the rates was agreed to, and that-the appellant authorized the officers of the company to act as -his attorneys in fact and cast any vote that he might cast. ’ ’
2. On the issue of fraud raised by the amendment to the complaint, passing by the question as to the misjoinder of causes of action and the competency of the evidence on the part of the appellee on that issue, we have concluded that there were no false representations made or deceit practiced, for the statement relied on was an opinion only. The receipt issued to the appellee upon his signing the application and delivery of it to him apprized him of the extent of the agent’s authority, which was merely that of a soliciting’ agent, and by a provision of the application it was expressly stipulated that the Union should not be bound or any of the provisions oif the certificate issued on the application waived or affected by any act or statement made by any agent or other person which was not contained in the application. If, then, the agent made the statements attributed to him, he merely stated what appeared in the application itself, which application, together with the by-laws and certificate, constituted the contract. The statement was substantially true at the time it was made, and remained so for a period of twelve years, and until the Insurance Department of the State of Arkansas, under authority vested in it by acts 137 and 139 of the Acts of 1925, by peremptory order caused the appellant company, successor to the Mutual Aid Union, to require the certificate holders of the Union to pay “an adequate rate on such a basis as to give full benefit or such benefit as would be commensurate with the monthly contributions paid. ’ ’ It follows that, as the statement was true at the time made, subsequent changes in the condition of affairs mailing necessary an increased rate which, one of the knowledge and experience of the person making' it could not reasonably have foreseen cannot affect the liability of the person making it or alter the contractual relation of the parties. 12 R. C. L. 303, § 64; Corbett v. Gilbert, 24 Ga. 454 ; Elliott on Contracts, vol. 1, § 87; Johnson v. Baxter, 108 Ark. 350, 157 S. W. 387.
'Construing the evidence in the most favorable light for the appellee and giving it its strongest probative value, we are of the opinion that in any. phase of the case the appellee has failed to establish his right to recover, and that the trial court erred in its finding and judgment. As the case appears to have been fully developed on trial in the court below, the judgment is reversed and the cause dismissed. | [
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McTIaney, J.
This is an appeal from a judgment against appellant in the sum of $1,000, in favor of the appellee, for conversion of twenty head of mules by appellant, on which appellee held a deed of trust. Appellee sold twenty head of mules, about 500 acres of standing timber, a sawmill, 'and other personal property to W. E. Babb, and for the purchase price took a deed of trust or mortgage from Babb and wife to himself which was dated May 18, 1927, but which was executed and acknowledged on the 19th day of May, 1927, by Babb and wife, and filed for record in Union County, Arkansas, on May 20,1927. The mortgage was also recorded in Columbia County but on November 22,1927. During the month of September, 1927, appellant purchased the mules from Balbb and disposed of them, and this action for conversion of the mules followed, by reason of the fact that Babib failed to pay his note given for the property purchased from appellee, which was secured by the deed of trust on all the property.
At the conclusion of the testimony appellant requested an instructed verdict in his favor, which the court refused .and which was assigned as error in the motion for a new trial. A number of other errors are assigned and urged for our consideration, but in view of the disposition we make of the first it becomes unnecessary to discuss the others. We think the request for an instructed verdict in appellant’s favor should have been granted. Our statute, § 7380, C. & M. Digest, provides that mortgages for personal property shall be recorded in the county in which the mortgagor resides, if a resident of this State. Section 7381 of the Digest provides that, “every mortgage, ’whether for real or personal property, shall be a lien on the mortgaged property from the time the same is filed in the recorder’s office for record, and not before; which filing shall be notice to all persons of the existence of snch mortgage.” Under these sections of the statute, this court has many times held that a mortgage is good between the parties to it even though not acknowledged and recorded, but that such a mortgage does not constitute a lien upon the mortgaged property, as against strangers, unless it is acknowledged and recorded, even though they may have actual notice of its existence. It has been further held many times that the record of a chattel mortgage in a county other than that of the mortgagor’s residence is no notice to third persons. From Main v. Alexander, 9 Ark. 112, down to the present time, one of the recent cases being Hall v. Cartwright, 179 Ark. 1082, this court has so construed said statutes. Whether a chattel mortgage should be filed in the county of the residence of the mortgagor at the time of its execution or whether it should be filed in the county of the residence at the time of filing, this court has never decided, so far as the diligence of counsel discloses, nor have we found such a case by our independent investigation. We do not find it necessary to determine this question in this case as we have reached the conclusion that there is no substantial testimony in the record to show that the mortgagor, Babb, ever established a residence in Union County. The burden of proof in this regard was on appellee. In 11 C. J., p. 528, the rule is stated as follows: “Where the mortgagor’s residence controls as to the proper place of record, one claiming under the mortgage must establish that the mortgagor’s residence was such as to render the filing proper.” Capon v. O’Day, 165 Wis. 486, 162 N. W. 655, 1 A. L. R. 1657, is cited to sustain the text, which it does under a statute similar to ours. “Residence means something more than a mere presence in a place, particularly where the mortgagor has at the same time a permanent place of abode in another locality. * '* * The fact of actual residence is to be determined by the ordinary and obvious indicia of residence.” 11 C. J., p. 527. It is undisputed in this record that Babb, at the time of the execution of the mortgage to appellee, was a resident of Columbia County, living in the town of Waldo. Appellee so testified and further stated that he went to Union County to operate the sawmill some two or three days after- the execution of the mortgage. As above stated, the mortgage was executed on the 19th day of May, 19'27, and was filed ifior record on the 20th in Union County. It was, therefore, not filed in the county of his residence either at the date of execution or at the date of filing. When he went to Union ’County to operate the saiWmill he left his wife and children living in his home in Waldo, in Columbia County, where they continued to reside as long as he remained in Union County, some four or five months, when be left for parts unknown. The only article of furniture he took with him to Union County was a bed for sleeping purposes during his stay there in the operation of the sawmill. Since he had a permanent place of abode in -Columbia County and since the facts and circumstances in the case indicate that he was merely in Union County temporarily and had no intention of removing his residence from Columbia to Union County permanently, we are of the opinion that the appellee failed to' establish the residence of the mortgagor in the county where the mortgage was filed. True, it was filed in Columbia County, but at the time of its filing, the rights of appellant, a third person, had already accrued and such filing was no notice to him.
It necessarily follows from what we have said that the court erred in refusing to direct a verdict in appellant’s favor. The judgment will therefore be reversed, and the cause remanded for a new trial. It is so ordered. | [
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Kirby, J.,
(after stating the facts). Appellant insists for reversal that the court erred in giving certain instructions, especially instruction No. 1, leaving out of the jury’s consideration his contention that the note was owned by the Bank of Dyer at the time of its failure, and the estate was therefore entitled to a set-off against it of any amount due from the bank to the maker of the note.
The undisputed testimony shows, however, that the note was purchased and paid for by appellee Moss, and duly transferred by the bank to him by its cashier on the date indorsed oil the transfer, and also it was shown, and the jury could well have found from the testimony, virtually undisputed, that W. P. Winfrey made a claim for the amount of his certificate of indebtedness against the Bank of Dyer after its failure and was paid in dividends 53 per cent, of the amount of his claim. The direct testimony also disclosed that the note upon which the claim was based was never transferred to nor listed among the assets of the Farmers’ State Bank, successor to the Bank of Dyer. There was no testimony therefore warranting the submission of the question to the jury, and no error was committed in the giving of said instruction No. 1, properly defining the issues. The instructions as a whole submitted the issues fairly to the jury, and its verdict was amply sustained by the evidence.
As already said, the undisputed testimony showed that the note was transferred on the date indorsed thereon for a full consideration paid by him to appellee Moss, and that no payments had ever been made on it by the maker except the one for $200 indorsed thereon. Even if the note had been transferred after it was due, which was not the case, or an unreasonable time after its date as a demand note, it would in no wise’have relieved the maker from its payment. See Moss v. Chitwood, 180 Ark. 600, 22 S. W. (2d) 398.
The note was properly read in evidence, there being no affidavit filed denying the genuineness of the signature thereto, and was prima facie evidence of its execution. Section 4114, G. & M. Digest; Heatkcock v. Brooke, 169 Ark. 73, 272 S. W. 843.
A careful examination of the whole record discloses it free from prejudicial error, and the judment is affirmed. | [
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Butler, J.
In 1917 A. L. Betts and J. P. Brundidge were partners in the cotton business, and remained so until November 8, 1918, when the partnership was dis solved by mutual agreement; Brundidge agreeing that the cotton on hand, which was the principal asset, should be valued at thirty-two cents a pound, and Betts agreeing that he would take over the business of the partnership and, when the liabilities were ascertained and deducted from the assets, he would pay to Brundidge one-half of the value of the assets over the liabilities. The bookkeeper of the concern made a statement of its affairs, and a tentative settlement was had on the basis of that statement, but it was understood between the parties that this settlement should not be deemed to be final but subject to revision and correction by Mr. 'C'ameron, an accountant in the firm of E. F. Leathern & Company, who had been accustomed to make the audits for the partnership; that 'Cameron should check up on the books- to see if the statement made by the bookkeeper represented the true condition of affairs, and, if the statement of the bookkeeper did not agree with Cameron’s, the audit made by Cameron should govern. In February following Mr. Cameron completed his audit and corrected the statement made by the bookkeeper, deducting in certain particulars from the amount shown from the statement of the -bookkeeper to be due Brundidge and adding to the statement as an asset a claim against the Federal Government for a refund for excess profit tax amounting to $18,163.90 which he said was due to be refunded, and that all that was necessary to be done was to file a claim and the United 'States Government would repay that amount of money. Settlement was accordingly made on Cameron’s audit, the refund item being calculated as a part of the assets and one-half of the excess in value of assets over the liabilities paid to Brundidge.
On the advice of 'Cameron a written assignment of Brundidge’s interest in the claim for refund of' excess profit tax was made to Betts, who filed the claim with the proper department, and, after much correspondence, on or about March 4, 1924, Betts was informed by the Commissioner of Internal Revenue that his claim was dis allowed, and that, instead of the government owing him the amount of the claim, the firm of Betts & Cameron owed the government an additional tax of $37,572.45 more than the partnership had paid. Betts individually owed an income tax amounting to some $16,000, and he attempted to offset this by the claim for the refund of the excess profit tax of 1918 but without success. Finally, in 1926, the government closed the negotiations, and, after disallowing the claim for the refund, made demand for the amount it determined was due. In 1924 when Brundidge learned that the government was claiming an additional amount of tax for the year 1918, he took steps to protect his interest by employing a firm of lawyers and procuring the services of Mr. Cameron. In 1926 when the question oif the refund was closed by the government and upon final denial of the claim, Betts made demand on Brundidge for one-half of that amount, to-wit, $9,081.95. Brundidge refused to make payment as demanded, and on November 28, 1928, Betts brought suit in the Hempstead Chancery Court to “reopen, surcharge and falsify the partnership settlement between the parties,” alleging “that the settlement of said partnership was erroneous and ¡based on mutual mistake of the parties in good faith believing that the Federal Government in fact owed said partnership, * * * and the same constituted the value and positive asset of said partnership.” Brundidge answered denying that the settlement was the result of mutual mistake or that said settlement should be reopened, and alleged in substance that in the settlement the parties dealt at arm’s length, and that it was 1 ‘ expressly understood and agreed * * * that it was a full and complete settlement of all partnership affairs, and that neither should at any time thereafter be liable the one to the other in any way whatever on account of said partnership business, nor in the sale of the assets thereof, regardless of whatever of assets of said firm should be more or less than the amounts agreed upon in the settlement and regardless of whether any of the assets had any value whatever. ’ ’ Other matters were pleaded in the answer as a defense to the action which will not he set out, as a consideration of these matters is unnecessary for a determination of this case.
The case was heard on oral testimony, and the court denied the prayer oif the complainant’s bill and by its decree found that “there is no equity in the complaint and that the defendant is not indebted' to plaintiff in any sum whatever,”' dismissing said complaint. Prom that finding and decree this appeal-is prosecuted.
There is but little dispute as to the. facts above narrated, the disputed matter being the understanding with respect to the settlement based on Cameron’s audit and particularly the item for refund of the excess profit tax; Betts claiming and testifying that the understanding with reference to the refund item was that, if it was not collected, -Brundidge was to repay to him one-half that sum. Pie stated that he filed the claim, and made diligent effort to collect it, employing Cameron for that purpose, and that Brundidge took active part in the effort to secure its allowance. He discussed the progress they were making with Brundidge and finally, when claim was denied, demanded payment of him.
Touching- the time the alleged agreement was made by Brundidge to repay Betts, if the government denied the claim, the following* dialogue occurred on the witness stand between Betts and appellee’s attorney:
“Q. Was that agreement made at the time you settled with him on the Cameron audit-—if the government didn’t pay he would pay? A. I don’t know whether he did or not. We looked upon it as a legal claim against the government. Q. Did he tell you that at the time he settled, or did you just think it would be settled in that way? A. No; he assigned it to- me—-his part of it—■ $9,000'—and he was urging- Mr. -Cameron (interrupted) — Q. Now, wait a minute; I understand that went in as assets, and he got credit for $9,000, but at the time you made settlement on Cameron’s audit was anything said as to whether or not he would make it good if you didn’t collect it? A. I don’t recollect about that, hut I suppose it was because we looked upon it as a valid claim against the government.”
To corroborate his testimony, telegrams and certain letters were introduced during the cross-examination of Brundidge, passing between him and Cameron in March, 1924. The most these show is that the claim for refund had been denied, with the opinion expressed by Cameron that Betts would claim return of half the sum paid by him to Brundidge with an intimation that Brundidge ought to pay it, and a denial by Brundidge that he was under any obligation to do so; that he wanted to do right, but would have to consider further before determining what he would do.
Brundidge stated in effect: that the settlement was ■based on the statement prepared by Cameron, and it was understood to be and was a full and final settlement of the affairs of the partnership without any promise on his part to make good wholly or in part any claim listed as an asset -which might prove worthless. That he surrendered all the tangible assets of the co-partnership and assigned in writing all interest in the claim for refund of excess profit taxes, and had no' further connection with any of the matters connected with the former partnership or with Betts or Cameron, except when he was informed that the United States Government was claiming an additional excess profit tax and that he was liable for and might be called upon to pay the whole amount, he took such action as he could to protect his interests, but at no time agreed to pay Betts any part of the refund claim that had been denied by the government.
This was substantially all the evidence, except that contained in the testimony of a witness who qualified as an expert accountant and gave his opinion regarding the validity of claims made and disallowed by the govern ment, which we think, was not material to the question in issue.
1. In order to support the contention that the settlement was entered into because of mutual mistake of the parties and to entitle one to have the settlement reopened, surcharged and falsified, such mutual mistake must he affirmatively shown by the evidence. Continental Supply Co. v. Robertson, 166 Ark. 52, 265 S. W. 659. And the decree of the chancellor will not be disturbed unless it appears to be against the clear preponderance of the evidence.
The issue of fact was squarely presented to the trial court, and, while there was no specific finding of fact, the finding made that the complaint was without equity necessarily .implies that the chancellor passed on the question of fact and found adverse to the contention of the appellant. Under the rule stated, we are of the opinion that the finding of the trial court was not against the preponderance of the evidence, and that the settlement tentatively entered into in November, 1928, and finally consummated on the basis of the auditor's statement in February, 1929, was final and conclusive. It is evident from the testimony of Mr. Betts himself that any agreement that Brundidge made or thought was made was subsequent to the settlement based on the account stated by 'Cameron. This is disclosed by his cross-examination, as it is apparent from his statement that he did not know whether Brundidg'e did or did not agree to repay him if the government did not pay the claim— that he took the claim as an asset because he thought it was a legal claim against the government, and the mistake made was in this assumption.
To justify the relief sought, the appellant invokes the principle that “an account in which items have been entered or omitted through fraud, mistake, accident or undue advantage may be falsified or surcharged even after there has been a settlement and a payment of the balance found due,” and cites Fletcher v. Whitlow, 72 Ark. 234, 79 S. W. 773, and a number of other Arkansas cases supporting the principle announced. The trouble with the appellant’s contention in this case is that this principle finds no application to the facts as found by the chancellor, for there was no fraud, accident, or undue advantage shown or even claimed to have existed, and the mistake which arose was not one of fact but of law regarding the validity of the claim listed by Cameron. This arose from the too ready credence of the appellant in the opinion of Cameron on a legal question. Cameron forsook the practice of his- art to assume the position of an authority on the law, as is. not an infrequent practice of auditors, for this is observed in nearly every lawsuit in which they appear.
The case of House v. Weschler, 104 App. Div. 124, 93 N. Y. S. 593, is cited as a case in point and as based on facts similar to those of the instant case, which was a suit for the reformation of a contract of co-partnership settlement because of mutual mistake of' fact and for recovery of money paid in excess of the true amount by reason of such mutual mistake. But in that case there was, indeed, a mistake of fact because the bookkeeper who was entrusted with the duty of preparing the statement of account (as Cameron was in the instant case) inadvertently enumerated an asset which did not -exist and omitted an undoubted liability of which he was unaware. The precise value of the business was ascertainable byl the mere process of calculation, and the parties were both mistaken in believing that the process had been correctly performed. Here, however, as before stated, no such mistake existed, but simply an unwarranted reliance by the appellant on the opinion of 'Cameron which was not shared by the appellee, who stated that he knew the asset in controversy was-doubtful. The appellant argues that, if that was true, he should have so- advised his partner Betts, and by this statement he convicts himself of concealment or of over-reaching his partner. This is not so. All of the facts relating to the claim were equally known to Betts and Brnndidge, and the difference, if any, which existed was merely in the weight given to the opinion of Cameron. Brundidge' in his testimony specifically denied that at any time he ever agreed to mate good any claim or asset that might be found to be uncollectable, but insisted that there was a full, final and complete settlement by which they both agreed to abide. The telegram of Cameron, taken in connection with the reply of Brundidge to it and 'Cameron’s subsequent letter, is not sufficient in connection with the testimony of Betts to overcome the finding* of the chancellor under the rule announced.
In this case there was a settlement based on the written statement of account made by 'Cameron which nothing* short of clear and satisfactory evidence would be sufficient to overturn, and, as stated, in our opinion there was no mistake of fact. It is a settled rule that contracts of parties deliberately entered into will not be disturbed merely for mistakes of law. As defined in Palmer v. Cully, 52 Okla. 454, 153 Pac. 154, Ann. Cas. 1918E, 375, cited by the appellee, “A mistake of law happens when a party having full knowledge of the facts comes to an erroneous conclusion as to their legal effect. It is a mistaken opinion or inference arising from an imperfect or incorrect exercise of a judgment upon the facts as they really are,”' and in People’s Savings Bank & Trust Co. v. Hausman, 171 Ark. 680, 286 S. W. 865, we said: “It is a principle of almost universal application that a mistake of one of the parties to a contract concerning its legal effect will not, in the absence of fraud or misrepresentation, afford grounds for relief ag*ainst the performance of the contract.” And in Blackburn v. Texarkana G. & E. Co., 102 Ark. 158, 143 S. W. 588, “where one voluntarily makes a payment upon a claim with knowledge of the facts, or under such circumstances that he is affected with such knowledge, then he cannot recover back such payment upon the ground that the asserted claim was unenforceaJble. ”
On the conclusions reached, it is obvious that the case must be affirmed, and it will therefore be unnecessary to consider the other questions presented by counsel in their respective briefs. Affirmed. | [
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David Newbern, Justice.
The appellant, Willie Charles Allen, was convicted of aggravated robbery and theft. He contends the identification of him at the trial by the victim should have been suppressed because it was the product of the previous identification at an improperly conducted police lineup. Three arguments are made with respect to the lineup. First, he argues that the lineup was improper because he was denied his right to be taken before a magistrate without unnecessary delay. Second, he contends he was denied his right to counsel when the lineup was conducted, and third, he contends the lineup was so suggestive that his right to due process was violated. While we agree there was unnecessary delay between the time Allen was arrested and his arraignment, we do not find that the lineup was in any way related to or produced by the delay, and thus the delay did not require suppression of the in-court identification. Second, Allen had not been charged when the lineup was conducted, thus his right to counsel had not attached, and third, we disagree with his argument that the lineup was so suggestive as to violate his right to due process. The conviction is thus affirmed.
Melissa Fulce testified that, while she was working alone as the clerk in a Texarkana, Arkansas, convenience store on January 14, 1987, Allen entered the store. He picked up a bottle of soft drink and brought it to the counter where Fulce was working, instead of getting out his money to pay for the drink, he pulled a gun and demanded money. She gave him money from the cash register, and he then told her to take the drawer out. She did so, and he reached in and took some twenty-dollar bills which had been under the drawer. Fulce testified the store was well lighted, and her assailant stood about an arm’s length in front of her. As he left the store he said he was sorry but that he had a sick baby.
On January 16, 1987, Fulce was shown a photo-spread of men who fit the description she had given the police. There were two rows of three pictures each. She picked out Allen whose picture was numbered “3” and was third from the left on the top row. Earlier that day, just after midnight, Allen was arrested for the robbery of a convenience store in Wake Village, Texas. He was caught in Texarkana, Arkansas, driving a vehicle the description and license number of which fit those of a vehicle used in the Texas robbery. At 4:10 p.m. on January 16, 1987, he was arrested on the Arkansas charge. On January 23, 1987, Fulce viewed a live lineup and identified Allen as the man who had robbed the store where she worked. Allen was the third man from the right, holding a placard with a “3” on it. Both identifications were unequivocal, and Fulce testified no suggestions were made to her by police officers who were present.
Allen, who was incarcerated in the Bi-State Criminal Justice Center in Texarkana, was not arraigned on the Arkansas charges until February 27,1987, some 42 days after his initial incarceration resulting from the Texas robbery. Before the trial, Allen moved to suppress the proposed in-court identification of him by Fulce. The motion was based solely on the ground that Allen had been arrested unlawfully. There was no mention of the delay. The court denied the suppression motion. At the trial, Allen objected to the identification of him by Fulce contending first that his Sixth Amendment rights had been violated and, second that the delay in bringing him before a magistrate was unlawful. The motion was overruled, and Fulce, at trial, again positively identified Allen as the man who had committed the robbery.
7. The delay
As the pretrial suppression motion was not based upon the violation of Rule 8.1., we will not consider on appeal the argument that it should have been granted on that basis. Ark. R. Crim. P. 36.21; Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984).
The overruling of the objection to the identification testimony at the trial was also proper. Arkansas R. Crim. P. 8.1. provides: “An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.” The rule is mandatory, but it does not require dismissal of the charges. Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981); Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978). See Note, 38 Ark. L. Rev. 842 (1985). If evidence is gained as the result of the proscribed delay, it must be suppressed. Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987); Richardson v. State, 283 Ark. 82, 678 S.W.2d 772 (1984). In the Duncan case we wrote that the suppression will occur if there is unnecessary delay, the evidence obtained as a result of the delay is prejudicial, and the evidence is reasonably related to the delay.
Allen was not charged until almost a month after he was positively identified as the culprit, and he was not arraigned until another seven days had passed. The delay in this case was unreasonable on its face, and no attempt was made by the state to explain it. Nor is there any doubt that, if the identification of Allen by Fulce was related to the delay, it prejudiced his case. However, we cannot conclude that the identification was in any way influenced or contributed to by the delay. Unlike the situation where an accused gives an inculpatory statement to the police after many days of incarceration without arraignment, Fulce’s testimony identifying Allen had nothing to do with the delay.
The only other argument Allen makes with respect to the delay is that his incarceration prevented him from obtaining alibi witnesses. This argument was made for the first time in Allen’s motion for a new trial. The decision whether to grant a new trial in a criminal case lies within the discretion of the trial judge. Foster v. State, 294 Ark. 146, 741 S.W.2d 251 (1987); Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985). We know of no case which entitles an accused to relief under Rule 8.1. on the ground that the accused was unable to obtain evidence in his favor. Cf Scott v. State, 263 Ark. 669, 566 S.W.2d 737 (1978), where we said the failure to abide by the rule would be considered in determining whether there was prejudicial prosecutorial delay. Given the failure to raise the question earlier, and the likelihood that raising it in a timely manner would have been to no avail, we find no abuse of discretion in the trial court’s refusal to grant a new trial.
2. Right to counsel at the lineup
At the time the lineup was conducted, formal charges in the Arkansas robbery had not been lodged against Allen. There is no right to counsel at a lineup unless charges have been filed. Moore v. Illinois, 434 U.S. 220 (1977); McClendon v. State, 295 Ark. 303, 748 S.W.2d 641 (1988).
3. Suggestiveness of the lineup
in Frensley v. State, 291 Ark. 268, 724 S.W.2d 165 (1987), we set out the requirements for holding that a police conducted lineup was so suggestive that it would require suppression of subsequent identifications. We held that we would not reverse unless the trial court’s decision was clearly erroneous, citing Cook v. State, 283 Ark. 246, 675 S.W.2d 366 (1984). The only allegation made here is that Allen was given the same number in the lineup as had been next to his name in the photospread where he was first unhesitatingly identified by Fulce. The decision was not clearly erroneous.
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Tom Glaze, Justice.
This case concerns a legal dispute between the appellant, The Bank of Cave City, Arkansas (Bank) and the appellee, Justice Farms, Inc. (Justice). Their disputes ensued from Farmers & Ranchers Livestock Auction (Farmers) and its owners’, Bill and Mary Davis’s, sale of cattle to Justice on January 11 and 13,1984. In connection with those sales, Farmers deposited a bank draft dated January 13,1984, in the amount of $68,016.73, which was signed by Mrs. Davis and drawn on Justice’s bank in Pine Bluff. The Bank gave Farmers and the Davises immediate credit on the Justice bank draft, which Justice later refused to honor when the draft was submitted to its bank in Pine Bluff. The Bank subsequently brought suit against Justice claiming the Bank was a holder in due course and entitled to the full amount of the draft. In the alternative, the Bank argued it was entitled to judgment because Farmers’ and Justice’s actions, surrounding the sale transaction and bank draft, constituted actionable fraud against the Bank. The trial court rejected the Bank’s contentions and entered an order dismissing its complaint. We affirm.
On appeal, appellant first argues it was a holder in due course of the $68,016.73 draft, and for that reason, the court erred in failing to award judgment against Justice in that amount. Of course, one can be a holder in due course only of a negotiable instrument, and that instrument, among other things, must be signed by the maker or drawer. See Ark. Code Ann. § 4-3-104 (1987). In addition, no person is liable bn a negotiable instrument unless his signature appears on it. Ark. Code Ann. § 4-3-104 (1987). In this cause, Justice undisputedly did not sign the draft in question; however, the Bank claims Mrs. Dayis signed the draft as Justice’s authorized agent.
Justice denied that it authorized Mrs. Davis to sign the $68,016.73 draft, and the trial court accepted Justice’s account of what happened as true. The trial court further ruled that Justice properly rejected the draft when it was submitted to Justice’s Pine Bluff bank. On appeal, the Bank insists the trial court was clearly wrong in reaching this conclusion,
Because Justice questioned, at trial, the effectiveness of the Davis signature on the draft instrument, the Bank, which was claiming under the signature, had the burden of establishing it. Ark. Code Ann. § 4-3-307(l)(a) (1987). The Bank urges that it met its burden, under Ark. Code Ann. § 4-3-403(1), which provides that a signature may be made by an agent or other representative, and his authority to make it may be established as in other cases of representation. Section 4-3-403(1) further provides that no particular form of appointment is necessary to establish such authority. The Bank argues that Justice expressly, implicitly, or apparently had authorized Mrs. Davis’ signature to the draft.
The Bank’s first argument relies heavily upon an earlier sale transaction, which these same parties conducted on January 4, 1984. In that transaction, Justice purchased cattle from Farmers for the sum of $20,794.69. In the years of doing business with Farmers, prior to this January 4 transaction, Justice had always paid for its purchases of cattle by check. However, on the night of January 4th, Mrs. Davis called Justice requesting its permission to draw a draft on Justice’s bank to pay for that day’s purchase. Justice agreed, but told Davis the draft would not be paid until the Pine Bluff bank verified the amount of the draft. As it later became evident, Farmers (and the Davises) deposited the Justice draft with the Bank, but the draft was for $40,794.69 more than twice the sale amount. Relying on the established practice between the Bank and Farmers, the Bank gave Farmers immediate credit for the full amount of the draft.
Apparently, in order to assure Justice would not bear a loss as a result of the $40,794.69 draft, Farmers mailed an unsolicited check to Justice in the approximate sum of $20,000.00. After receiving the check, Justice suspected that the draft drawn by Mrs. Davis might be for more than the January 4 sale amount. However, Justice did not contact Mrs. Davis, but instead deposited Farmers’ check and later verified with Justice’s bank that the check had cleared. Justice then learned from its bank that the draft had been written for the $40,794.69 amount, but on January 16, 1984, Justice proceeded to honor and pay the draft amount, since the exchange of the check and draft resulted in Justice being charged only the true amount of the January 4 sale. From the record, this transaction was Justice’s first indication that Farmers had employed the practice of check-kiting when selling cattle. On this point, and as we previously mentioned, Justice had always paid Farmers by check when buying cattle and drafts had never been mentioned.
The Bank contends Justice became aware of the check-kiting practice of Farmers and the Davises as a result of the January 4 transaction and that knowledge served to make Justice liable for the January 11 and 13 sales or second transaction, which is in issue in this appeal. The Bank urges acceptance of this argument even though there is no direct evidence (as existed in the January 4th sale) that Justice had approved or authorized either Farmers or Mrs. Davis to sign a draft.
This second transaction, as earlier noted, involved Justice’s purchase of cattle from Farmers on January 11 and 13. The total purchase price was $30,864.17. Justice mailed checks in this amount to Farmers but stopped payment on those checks when he received another unsolicited check from Farmers in the amount of $40,030.19. Although Justice never authorized any draft, it suspected a draft would be forthcoming since Justice received another unsolicited check from Farmers. Indeed, Mrs. Davis had drawn another draft on January 13,1984, payable to Farmers in the amount of $68,016.73, or more than twice the sale amount, and again the Bank gave immediate credit to Farmers when it deposited the draft. Later, sometime in the week of January 16, 1984, Mrs. Davis called Justice and explained the $40,030.19 check sent Justice was insufficient. She instructed Justice not to honor the $68,016.73 bank draft and to pay Farmers by check, which Justice did.
To support its claim that Justice authorized Mrs. Davis to sign the $68,016.73 bank draft and should be obligated to pay the Bank as a holder in due course, the Bank argues that the evidence reflects Justice never actually claimed Mrs. Davis was unauthorized to sign the draft and that issue concerning her authority was only raised after litigation ensued. The Bank submits that had Farmers’ $40,030.19 unsolicited check been sufficient, Justice would have honored the draft signed by Mrs. Davis. The Bank’s argument ignores the undisputed evidence that Justice never authorized the second draft and became aware of that draft after Farmers had deposited the draft in its account with the Bank and the Bank had already given Farmers the full amount of the draft. It was only after these events occurred that Justice received his second unsolicited check from Farmers, which caused Justice to suspect that Farmers and Mrs. Davis had drawn another draft on Justice’s bank. It is also significant that Justice had resumed its past practice of paying for its cattle purchases by mailing Farmers checks in payment for its purchases on January 11 and 13. Based on this evidence, the trial court could reasonably find — as it obviously did — that Justice never expressly or impliedly authorized Mrs. Davis to draw the second draft.
The Bank further argues that even if Justice did not authorize the signature of Mrs. Davis, Justice certainly ratified her signature or was precluded from denying it under Ark. Code Ann. § 4-3-404(1) (1987). Section 4-3-404(1) provides as follows:
Any unauthorized signature is wholly inoperative as that of the person whose name is signed unless he ratifies it or is precluded from denying it; but it operates as the signature of the unauthorized signer in favor of any person who in good faith pays the instrument or takes it for value.
The Bank claims it was justified in honoring the second draft signed by Mrs. Davis based upon Mrs. Davis having signed the draft in the first cattle sale transaction. Clifton Crabtree, a cashier and officer of the Bank, testified that the Bank had knowledge at the time of the second draft that the previous draft had cleared on Mrs. Davis’s signature. The record fails to support that conclusion. The first draft, joint exhibit number four, reflects that it had not been stamped paid until January 16. Thus, the Bank could not have known the first draft would have been honored and paid until January 16; the Bank, on the other hand, had already given Farmers immediate credit on January 13, the date the second draft was submitted to the Bank.
We also note that Justice’s actions, themselves, counter any suggestion that it ratified Mrs. Davis’s having signed the second draft. After Justice bought the cattle on January 11 and 13, it paid for them by check and only became aware that Mrs. Davis had signed another draft when Justice received the second unsolicited check. At that point, Justice could have done nothing to have prevented the Bank’s loss, since the Bank had already given Farmers credit on the second draft. Instead, Justice proceeded to cut its own potential loss by stopping payment on the checks it had previously mailed Farmers in payment of Justice’s January 11 and 13 purchases of cattle. We cannot agree that the actions taken by Justice in any way ratified or precluded Justice from denying it gave authority to sign the second draft.
Finally, appellant contends Justice fraudulently participated with Farmers in Farmers’ check-kiting scheme because Justice conceded it knew what was “probably happening” when it, on two separate occasions, deposited the unsolicited checks from Farmers. We disagree. The facts already discussed reflect that Justice was not fully apprised of Farmers’ or the Davis’s actions and the record clearly supports the trial court’s finding that Justice did not act in concert with Farmers or Mrs. Davis to defraud the Bank. Certainly, the Bank was in no position to say it could justifiably rely on Justice’s conduct in view of the knowledge the Bank possessed concerning Farmers’ precarious financial situation and manner of doing business. Without being unnecessarily repetitive of the facts already mentioned, we add that the Bank was quite aware that Farmers had a cash flow problem. The Bank knew Farmers would write checks when it would have insufficient funds in its account, and knew that Farmers had defaulted on a loan it had with the Bank. Even so, the Bank would give Farmers immediate cash on drafts or checks drawn on accounts in other banks in anticipation that those drafts or checks would clear. Thus, the Bank knew it risked getting “stuck” with having given Farmers immediate credit if one of those other instruments — such as the two drafts in issue in this cause — were for some reason dishonored.
For the reasons stated above, we affirm the trial court.
In making its argument, the Bank, we note, failed to use Ark. Code Ann. § 4-3-406(1) (Supp. 1987). This statute provides that any person who substantially contributes to the making of an unauthorized signature is precluded from asserting the lack of authority against a holder in due course. | [
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Dunaway, J.
Everett (Shine) Wimberley appeals from a conviction of assault with intent to kill. He was charged with this crime by information filed by the prosecuting attorney as a result of the shooting on November 9, 1949, of Dorothy Dugan Wimberley, ex-wife of appellant. Upon trial of the cause, Wimberley was found guilty and sentenced to ten years imprisonment.
Por reversal, appellant urges several alleged errors, two of which have to do with the admissibility of certain testimony, while the others relate to the closing argument of the prosecuting attorney.
At the trial the State called Dr. A. H. Eogers, a physician of Mena, to testify concerning the location of the bullet wounds on the victim’s body. The defendant objected on the ground that Dr. Eogers’ testimony would be a privileged communication, and that Mrs. Wimberley, who had remarried the defendant following the shooting, had not waived the privilege. In fact the doctor stated that she had specifically requested him not to testify. Over this objection, the doctor was permitted to state that he had examined Mrs. Wimberley after she was wounded; to describe the location, nature and extent of her wounds and to state that she was hospitalized and treated by him. Following a recess in the trial, on mo tion of the State this testimony was stricken and the court admonished the jury not to consider it. Appellant, however, argues that even though the testimony objected to was later excluded, the effect of the doctor’s testimony was not erasable and was prejudicial to him.
We think the doctor’s testimony as to the nature, extent and location of the wounds was admissible. At common law, communications between physician and patient were not privileged, and it is only by statute that a physician cannot be compelled to testify as to an examination of a patient. 3 Wharton’s Criminal Evidence (1935 Ed.) § 1240; Underhill’s Criminal Evidence (1935 Ed.) § 341. The statutory foundation for claiming privilege as to a physician’s testimony appears in Ark. Stats. (1947) § 28-607: “Hereafter no person authorized to practice physic or surgery and no trained nurses shall be compelled to disclose any information which he may have acquired from his patient while attending in a professional character and which infonnation-was necessary to enable him to prescribe as a physician or do any act for him as a surgeon or trained nurse. . . .”
In Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S. W. 720 at page 559 we said that the purpose of this statute “is to cover the relation of physician and patient with the cloak of confidence, and thus to allow a greater freedom in their communications to each other in regard to matters touching the disease of the patient. Such statutes are enacted as a matter of public policy to prevent physicians from disclosing to the world the infirmities of their patients.”
We considered a similar objection in a case where the defendant was tried on a charge of -rape and convicted of carnal abuse. In that case, Cabe v. State, 182 Ark. 49, 30 S. W. 2d 855, we said at page 52: “Appellant next contends for the reversal of the judgment because Dr. Gray was permitted to testify concerning an examination he made of the prosecutrix a few hours after the alleged crime was committed. The introduction of his testimony was objected to on the ground that it was privileged. The doctrine of privileged communications only extends to the physician’s patients and himself. A defendant in a prosecution for crime has no right to claim the protection. Davenport v. State, 143 Miss. 121, 108 So. 433, 45 A. L. R. 1348.”
The rule is thus stated in 3 Wharton’s Criminal Evidence (1935 Ed.) § 1246: “The object of the privilege is to protect the patient; it is conferred on him, and belongs to him or his personal represenative. It extends only to the patient and the physician and cannot be claimed by another who is party to a criminal prosecution. So, the accused in a murder prosecution cannot object to the testimony of a physician as to the nature of the deceased’s wound and the cause of his death.”
The weight of authority supports our holding in the Cabe case, supra, that the doctrine of privilege is for the benefit of the patient, and that the defendant in a criminal prosecution cannot object to the testimony of a physician concerning information gained from the victim by the physician in his professional capacity. See Annotation 2 A. L. E. 2d 647 and eases therein collected.
In People v. Lay, 254 App. Div. 372, 5 N. Y. Supp. 2d 325, at page 327, the New York court discussed this question:
“The conviction was based upon a confession of defendant and the relevant testimony of a physician who, upon examination and treatment of the woman, found a bullet wound in her body and extracted the bullet. It is claimed that the testimony of the doctor was inadmissible under § 352 of the Civil Practice Act, applied to criminal trials by § 392 of the Code of Criminal Procedure. This court holds.that it was admissible.
“It could not have been intended by the Legislature that in such a case the Act should he the means of protecting a criminal from just punishment. Pierson v. People, 79 N. Y. 424, 35 Am. Rep. 524; People v. Harris, 136 N. Y. 423, 33 N. E, 65. Those cases involved convictions for murder. But the essence of the decisions applies here. There was no disclosure by the doctor which would subject the woman to prosecution, damage her reputation, or wound her feelings, as was the case in People v. Murphy, 101 N. Y. 126, 4 N. E. 326, 54 Am. Rep. 661. Section 1915 of the Penal Law, which requires every physician attending’ a case of bullet wound to report such case at once to the police authorities, militates against a construction favorable to a defendant in a criminal cause. The statutory prohibition, the birth of which took place in the State of New York, is not accepted in all jurisdictions. 5 Wigmore on Evidence, Second Edition, § 2380. Its scope should be limited to its purpose.”
By Act 258 of 1949, the General Assembly of Arkansas enacted “An Act to Require Doctors, Hospitals, and others to Report Treatment of Knife and Gunshot Wounds to Peace Officers.” Physicians are required to report immediately to the appropriate peace officers treatment of all knife or gunshot wounds that appear to have been intentionally inflicted. Failure to report is punishable as a misdemeanor.
We agree with the reasoning in the Lay case, supra, that a construction which would serve as a cloak for crime should not be placed upon a statute which as we have said, was enacted “to prevent physicians from disclosing to the world the infirmities of their patients.” The State has a vital interest in the protection of its citizens from acts of violence. It would be unreasonable to say that a physician must report his treatment of a gunshot wound to a peace officer, but that the State cannot call him to testify as to the nature, location and extent of such wounds in a court of law.
In the case at bar, there was nothing in the doctor’s testimony which would subject Mrs. Wimberley to prosecution, damage her reputation, wound her feelings, or disclose to the public any infirmity or condition which she might legitimately wish kept private. Within the limits indicated, the testimony was admissible.
Appellant next argues that the testimony of the operator of the telephone exchange at Wickes concerning a telephone conversation was incompetent, as being a. “violation of privacy” and for the further reason that the defendant was not properly identified as one of the parties engaged in the conversation. The telephone operator testified that in the early morning of November 9, 1949 (the shooting occurred about four or five o’clock a. m. that day) someone who gave his name as Wimber-ley placed a call from Hill’s Cafe in "Wickes to “Jimmie” at Mena; that the parties “seemed to he quarreling”. The proof showed that Dorothy Dugan Wimberley was known as “Jimmie”. A companion of appellant testified that sometime after midnight of November 8-9, he was with appellant at Hill’s Cafe in Wickes where he used the telephone.
It is true that the telephone operator could not identify the voices. “But recognition of the voice of the other party on the wire, or other parties, if the witness was ‘listening in’, is not the only means of identification, as it also may be made by facts or circumstantial evidence. Where a witness called a party’s telephone number, and some one responded purporting to be the party called, the conversation was competent, even though witness did not know the voice.” Underhill’s Criminal Evidence (1935 Ed.) § 129, page 178. There was sufficient circumstantial evidence identifying the parties to the telephone conversation to permit this testimony to go to the jury.
No authority has been cited by appellant to support his contention that the telephone conversation was privileged. In Hall v. State, 208 Ala. 199, 94 So. 59, it was held that such a conversation was not privileged and that the telephone operator could testify as to a conversation between the accused and his victim.
The objections to the prosecuting attorney’s closing argument have given us more concern. In referring to the defendant the prosecuting attorney said that “every time he gets in trouble his poor old mother comes up here and pays his fine. ” The defendant had not testified in his own behalf and there was nothing in the record to show that he had previously been convicted of other offenses. The defendant objected to this argument as being prejudicial and asked for a mistrial. The court then admonished the jury that counsel’s argument must be based on the record. “The court wants to admonish you not to consider anything unless it is based upon the testimony of the record.” The defendant renewed his objection, again asking for a mistrial. He duly saved his exception to the overruling of the objection.
The prosecuting attorney then proceeded to tell the jury “I have been criticized because Shine Wimberley walks the streets of Mena today.” When this was objected to, the court admonished the jury: “That is not competent argument and the jury will please consider only the testimony in the trial of this case.”
The last remark alone would not have been sufficient to require a reversal of this case, since the court did instruct the jury that it was improper and in effect told them to disregard it. On the other hand, the statement of the prosecuting attorney that the defendant’s poor old mother paid his fine every time he had been in trouble before was highly improper and prejudicial. The natural inference was that the defendant was an habitual offender (which was not shown by the record) and such an argument was bound to influence the jury. The court’s mild admonition to the jury to consider only argument based on testimony in the record was insufficient to remove the prejudice. Hughes v. State, 154 Ark. 621, 243 S. W. 70; Hays v. State, 169 Ark. 1173, 278 S. W. 15; Sanders v. State, 175 Ark. 61, 296 S. W. 70. A commendable enthusiasm by the prosecuting attorney to bring an accused criminal to justice must stop short of clearly improper and prejudicial argument.
The judgment is reversed and the cause remanded for a new trial. | [
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George Rose Smith, J.
This is a bill in equity filed by the appellant to obtain from the appellees, J. H. McDowell and W. 0. Dailey, an accounting for the wrongful sale of partnership timber and damages for profits that would have accrued liad the timber not been sold. After hearing the testimony the chancellor dismissed the complaint for want of equity.
In the early part of 1948 McDowell was in business as a timber cutter, employing several crews of laborers. The Haynesville Planing Mill Company liked the quality of his work and engaged him to cut and bank three million feet of timber. As McDowell had no funds with which to buy tracts of timber the Planing Company agreed to advance the purchase money, taking a deposit of the timber deeds as security. The appellant and Dailey joined McDowell in the venture, and the three began buying timber in McDowell’s name with money furnished by the Planing Company. On January 29,1948, the three men executed a written agreement which recited that the Planing Company had advanced $7,750 for timber deeded to McDowell. It was further stated that McDowell and Dailey would cut and bank the timber, for which the Planing Company had agreed to pay them $15 a thousand feet and to credit an additional $15 a thousand feet on the $7,750 debt. “After the Haynesville Planing Mill has received its $7,750 . . . [McDowell and Dailey] will still receive $15.00 per thousand for their cutting and hanking the said timber, and out of the other $15.00 per thousand they will pay to [Hartsell] 1/3 of the net profit as to the balance of said timber. ’ ’ By its terms the contract does not impose any duties upon Hartsell, who testified that his contribution consisted in arranging for the purchase of various tracts of timber.
The venture lasted for less than two months. On March 27 the appellees released to the Planing Company all interest in the timber deeds and accepted $2,000 in settlement of their claims against the Company. The appellant contends that this action deprived him of a substantial profit which could have been made by selling the timber to another lumber company and that in any event he is entitled to a third of the $2,000 payment, which the appellees divided between themselves.
There is a direct conflict in the testimony about the events leading to the termination of the venture. It is admitted that the appellant was not on good terms with the Planing Company, and it may fairly be inferred that the Company would not have, engaged McDowell had it known that appellant was to participate. Both the appel-lees testified that the appellant insisted on selling the timber “out from under” the Planing Company in order to make an immediate profit. When the Company learned of this conduct it demanded that McDowell release the title to the timber and that Dailey surrender his teams and logging equipment, for which the Planing Company had advanced the purchase money. Dailey, who is appellant’s brother-in-law, states that he and McDowell informed appellant of the Planing Company’s demands, but the appellant was intoxicated and the only answer they could get was, “Cod damn it, I am going to give [the Planing Company] $7,500 and I am going to get $12,000 for the timber.” In this predicament, with the Planing Company insisting upon immediate action, the appellees made the best settlement they could. They both testified that they took a loss on the transaction. They owed labor bills and feed hills and had not yet been paid for their work on two tracts. The sum they received was not enough to pay their actual expenses for the work done. They say that the appellant alone made a profit, as some timber tracts had been bought by the partners at a price lower than the amount charged to the Planing Company, and the difference was divided equally.
We think the chancellor’s action is supported by the preponderance of the testimony. We realize that a fiduciary relationship exists among partners or joint adventurers, but the appellant was not himself free from its obligations. It was his duty to cooperate to the fullest extent in promoting the common interest of the partners. The evidence justifies a finding that the appellant was the first to disregard his fiduciary duty and that his -repeated efforts to sell out for a quick-profit were directly responsible for the collapse of the undertaking.
Furthermore, the contract that we have quoted provides that after the Planing Company had been repaid the appellees will receive $15 a thousand feet for cutting and banking the timber, and out of the other $15 a thousand they will pay the appellant a third of “the net profit.” The appellant testified that the parties were to divide the second $15 equally, but the appellees say they understood that the appellant was not to receive anything unless there was a profit. Whether or not we consider this parol evidence as being admissible, it is evident that the contract’s reference to a net profit confirms the ap-pellees’ belief that if their activities involved expenses of more than $15 a thousand feet those expenses were to be repaid before a distribution of profits was made. We conclude that both the evidence and the equities support the view that, largely as a result of the appellant’s conduct, the venture resulted in a loss rather than in a profit to the appellees.
Affirmed. | [
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McHaney, J.
On December ?, 1928, O. C. and Ida Deffenbaugh, husband and wife, were murdered in Crawford County, Arkansas. By this murder their two little children, Clifford Lynn, aged three, and Mary Virginia, aged fifteen months, were made orphans. Thereafter, on December 21,1928, the appellant, a paternal aunt of said children and the appellee, the maternal grandmother of said children, filed separate petitions in proper form and duly verified in the probate court of Crawford County, the residence of said children, for their adoption. The probate court, on the same day, heard both petitions separately, made and entered an order granting the petition of appellant for the adoption of said children, and made and entered a separate order denying the petition of the appellee for their adoption. Thereafter, on April 23, 1929, appellee filed with the clerk of the probate court an affidavit for an appeal from the order of the court granting the petition of appellant for the adoption of said children, which was presented to the court and an order made granting the appeal; and on the same day appellee filed a separate affidavit for appeal from the order of the court denying her petition for adoption, which was presented to the court and an appeal was granted to the circuit court.
Appellant appeared in the circuit court at the November term, 1929, and moved to dismiss the appeal from the order of the court adopting said children to her on the ground, as stated in the motion, that appellee “is not entitled to maintain same and has no interest in the subject-matter that would give her a right to take said appeal, and she is not a proper party to appeal said cause. ’ ’ The court overruled said' motion to dismiss, consolidated both appeals and entered upon a trial of the case. The matter was submitted to a jury over appellant’s objections and exceptions. There was a verdict and judgment for appellee; from which this appeal is prosecuted.
We are of the opinion that the court erred in not dismissing the appeal from the order of adoption in favor of appellant for the reasons stated in the motion. Appellant filed a petition for the adoption of the children, which was in proper form, and a proper order was made granting the petition. Appellee was not a party to this proceeding. She had an independent petition of her own for the adoption of the children, which was denied. She had no vested interest in, or right to, the adoption of them to herself. Of course, it was the duty of the probate court to determine whether the appellant was a proper person to have the custody, care and control of said children, and we presume that it did so. We have carefully examined the evidence that was introduced on the trial of the case in the circuit court, and have reached the conclusion that perhaps the probate court, in making the order of adoption it did make, acted wisely and to the. best interests of the children, although there is no great difference in the financial standing of the parties, or the moral and intellectual surroundings. Appellee, not being a party to the petition filed by appellant and the proceedings had thereon in the probate court, did not make herself a party by appealing from the order of adoption in her own name. Not being a party and not having the right to appeal in her own name from such order the case should have been dismissed in the circuit court on motion of appellant.
For the error indicated, the judgment will be reversed, and the cause dismissed. | [
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Donald L. Corbin, Justice.
Appellant, Harold Edward Chism, appeals a judgment of the Washington Circuit Court convicting him of kidnapping, first degree battery, and theft. Appellant was tried by a jury, convicted, and sentenced to the Arkansas Department of Correction for consecutive terms of life, twenty years, and twenty years, respectively. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 29(l)(b). For reversal of the judgment, appellant asserts five points of error. We find merit in appellant’s challenge to the sufficiency of the evidence on the kidnapping charge and reverse and dismiss the judgment as it pertains to that charge. We find no merit in the four remaining points and affirm the remainder of the judgment pertaining to. battery and theft.
Appellant makes five arguments on appeal, one of which is a challenge to the sufficiency of the evidence on the kidnapping charge. Appellant’s right to freedom from double jeopardy requires that we consider this argument prior to the other arguments concerning trial error. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).
INSUFFICIENT EVIDENCE OF KIDNAPPING
Appellant claims the trial court erred in denying his motions for directed verdict on the kidnapping charge. Appellant argues the jury could not have convicted him of kidnapping without resorting to speculation and conjecture.
We treat the challenge of a denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992); Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). On appeal, this court reviews the evidence in the light most favorable to appellee and sustains the conviction if there is any substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990); Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).
The evidence, as viewed favorably to appellee, reveals that on April 27,1991, the victim of the kidnapping, battery and theft first encountered appellant at R.L.’s Garage, an automobile repair shop in the southern part of Fayetteville, Arkansas. The victim stopped at the garage to ask directions to an Alcoholics Anonymous meeting place. Appellant offered to show the victim where she needed to go and entered her van.
Appellant and the victim did not find the meeting place and both returned to the repair shop. At this point, appellant was driving her van. Appellant exited the victim’s van and she then drove north on Highway 71. Approximately ten minutes later, appellant left the repair shop in his vehicle, returned to get his checkbook, and then left the repair shop again heading in the same direction as the victim had driven. Later that same day, the victim awoke in a field near a wooded area with her van nowhere in sight, naked, and severely beaten. She was also missing her wedding ring. The victim had no idea where she was or how she got there. She crawled approximately one-half mile to a residence, where she broke a window, entered the home, and called for help.
Washington County Sheriffs Deputies were able to locate the residence from where the victim telephoned for help and found her there clothed only in socks and a bra wrapped around her neck. The house where the deputies found her is located south of the Zimmerman community on Highway 170, approximately two miles north of Devil’s Den State Park. Her face was so severely beaten her eyes were swollen shut and she could barely talk. She had large lacerations over her right eye. Her face and torso were covered with dried blood. While awaiting the arrival of an ambulance, the victim told the deputies that her attacker was the man she had met at the repair shop earlier that day.
In the present case, to prove kidnapping the state must show that appellant restrained the victim, without her consent, so as to interfere substantially with her liberty with the purpose of inflicting physical injury upon her. Ark. Code Ann. § 5-11-102(a)(4) (1987). In Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988), we applied section 5-11-102 to a defendant accused of both kidnapping and an underlying crime (rape) and interpreted the kidnapping statute in such a situation as requiring the restraint of the victim’s liberty to exceed that normally incidental to the underlying crime.
We have recently applied the Summerlin case in Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991), to reverse a kidnapping conviction and in Thomas v. State, 311 Ark. 609, 846 S.W.2d 168 (1993), to affirm a kidnapping conviction. Similar to many other cases we have decided, both Shaw and Thomas involved a victim being driven from the point of contact with their attackers into a rural area and raped there. In Shaw, finding facts sufficient to sustain a conviction only for rape, we reversed the kidnapping conviction because according to the victim’s testimony, she consented to the attacker’s actions until the point at which he raped her. See Shaw, 304 Ark. 381, 802 S.W.2d 468. In Thomas, we upheld both the rape and kidnapping convictions because the victim testified that although she consented to entering her attacker’s vehicle, she immediately began kicking her attacker and pleading to be taken where she agreed to go.
This case presents a peculiar set of facts. Unlike Shaw, 304 Ark. 381, 802 S.W.2d 468, there is no testimony in the present case that the victim was restrained only at the point at which appellant committed the underlying crimes. And, unlike Thomas, 311 Ark. 609, 846 S.W.2d 168, there is no testimony in the present case that the victim was restrained at a point prior to appellant’s commission of the underlying crimes.
As previously stated, appellant specifically argues there is insufficient evidence to support a judgment of conviction for kidnapping because there is no evidence that appellant interfered with the victim’s liberty to an extent beyond that which was incidental to the underlying crimes of battery and theft. He points out that the victim was unable to remember how she got to the field. She remembered returning with appellant to the garage and then driving away alone; the next thing she remembered was regaining consciousness in the field, finding herself naked and beaten. Thus, appellant argues there is simply no evidence showing he restrained the victim in excess of the restraint incidental to the battery and theft. He argues further that the jury must have resorted to speculation to conclude he kidnapped the victim and it was therefore error to deny his motion for directed verdict.
In support of its claim that there is substantial evidence to support the verdict of guilt on the kidnapping charge, the state relies heavily on the following circumstantial evidence. The victim testified that she was unable to remember anything that happened after driving away from appellant’s place of employment. She was found miles away from the place she was last trying to locate. She also stated that she thanked God she could not remember anyone hitting her. However, she did testify that she did not give anyone permission to take her van or wedding ring. The day after the victim encountered appellant, Washington County Sheriffs Deputies found both the keys to her van and her wedding ring on appellant’s person.
We have stated that circumstantial evidence may constitute substantial evidence. Still v. State, 294 Ark. 117, 740 S.W.2d 926 (1987). However, in order for circumstantial evi dence to constitute substantial evidence, it must exclude every other reasonable hypothesis consistent with an accused’s innocence. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). Whether the circumstantial evidence excludes all other reasonable hypotheses consistent with innocence is a question to be determined by the finder of fact. Id.
We are well aware of the foregoing rules of law concerning circumstantial evidence. However, regardless of whether evidence is direct or circumstantial, it must still meet the requirement of substantiality — it must force the fact finder to reach a conclusion one way or the other without resorting to speculation or conjecture. We cannot say the evidence presented in this case meets that requirement. This case bears a noticeable absence of any substantial evidence, either direct or circumstantial, that the victim’s liberty was or was not restrained in excess of the restraint that was incidental to the battery and theft. There is not substantial evidence to support the jury’s verdict of guilt as to the kidnapping charge and the trial court therefore erred in denying appellant’s motion for directed verdict.
ILLEGAL SEARCH AND SEIZURE
Appellant claims the victim’s van keys and wedding ring found in his pocket during a pat-down search should have been suppressed. On appeal, he argues the warrantless search was illegal because there was no justification for a pat-down search pursuant to Terry v. Ohio, 392 U.S. 1 (1968), as there was no evidence that he was armed and dangerous. Appellant also argues on appeal that the search was illegal because there was no probable cause to arrest him.
The trial court ruled the evidence admissible finding probable cause to arrest appellant and that a search incident to arrest is proper under those circumstances. Although the state argued the search could be justified under Terry, 392 U.S. 1, the record does not reveal that appellant ever challenged the search on that basis or that the trial court made a ruling about the search on that basis. We do not consider appellant’s argument that the scope of the search exceeded that authorized under Terry, as this argument is raised for the first time on appeal. Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992).
A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that person has committed a felony. A.R.Cr.P. Rule 4.1. Reasonable cause, or probable cause, exists where reasonably trustworthy information of facts and circumstances within an officer’s knowledge would lead a person of reasonable caution to believe that a felon was committed by the person arrested. Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987). Probable cause to arrest without a warrant does not require the degree of proof sufficient to sustain a conviction. Id.
Several of the deputies testified, both at the hearing on the motion to suppress and at trial, that they had information making appellant a suspect in the crimes committed against the victim. The victim told the deputies that she did not know her attacker but that she had met him earlier that day at an automotive repair shop on the south side of Fayetteville. In addition to this information gained from interviewing the victim, the deputies had also talked to Ron Yates, the owner of R.L.’s Garage, and to Yates’ stepson. From these two witnesses, the deputies learned that appellant had encountered the victim at the garage, that he was the last person seen with the victim, and that appellant drove his vehicle in the same direction as the victim was headed in her van. The deputies also knew the victim had been severely beaten and sustained bruises on her neck and chest in the shape of a tennis shoe print. They observed that when they encountered appellant, on the morning after the crimes occurred, he was wearing Reebok tennis shoes. In addition, the deputies knew appellant. He had several prior convictions, two of which were for battery.
As a result of this information, the deputies wished to talk to appellant and went to his home for that purpose. Appellant was not at home, but his wife at the time advised them appellant was out in a field helping get a car out that had been stuck. The deputies left appellant’s home, proceeded north on a road, and met appellant walking south along the road. One of the deputies stated, “Harold, I need to talk to you.” Appellant then walked to the trunk of the deputies’ vehicle, placed his hands on the trunk, and assumed a “spread-eagle” position allowing a search of his person without being requested to do so. The deputes were suspicious of this conduct. They noticed a bulge in appellant’s pocket and did a pat-down search for weapons. From appellant’s right front pocket, they recovered the victim’s wedding ring and numerous sets of keys, including a set to the victim’s van.
Based on the foregoing information known to the deputies at the time they asked appellant to talk to them, the deputies had probable cause to arrest appellant. A.R.Cr.P. Rule 4.1. The search, which the deputies stated was conducted contemporaneously with the arrest, was therefore a valid search incident to arrest. The van keys and wedding ring were properly admitted into evidence.
We are compelled to emphasize that the trial court’s denial of appellant’s motion to suppress is affirmable on yet another basis — appellant’s consent to the search. A consensual search does not run afoul of the Fourth Amendment. Moore v. State, 304 Ark. 257, 801 S.W2d638 (1990). On appellate review, we view the evidence in the light most favorable to appellee, and consider under the totality of the circumstances whether the state proved that consent to the search was freely and voluntarily given without actual or implied coercion. Duncan v. State, 304 Ark. 311, 802 S.W.2d 917 (1991). We affirm a finding of voluntariness unless that finding is clearly against the preponderance of the evidence. Id. Knowledge of the right to refuse consent to search is not a requirement to prove the voluntariness of consent. Id.
We can think of no better case than the present one to illustrate the requirement that consent to search be freely and voluntarily given and without actual or implied coercion. Appellant’s conduct in assuming the search position in response to the deputy’s request to merely talk to him is overwhelming evidence of appellant’s consent to search. According to the deputies’ testimonies, there was absolutely nothing said or done to appellant indicating the deputies considered him a suspect in any crime whatsoever. There was simply no reason for appellant to assume the frisk position other than to indicate his consent to search.
PHOTOGRAPHIC LINEUP
Appellant claims the trial court erred in denying his pretrial motion to suppress a photographic lineup in which the victim identified appellant as her attacker. Appellant asserts the lineup was unnecessarily suggestive because he was the only person appearing in orange jail clothing and standing in front of a height chart. The trial court found the photographic lineup, although perhaps somewhat suggestive, was not unduly so and therefore denied appellant’s pretrial motion to suppress. While the lineup was referred to at trial, it was never admitted into evidence.
If there are suggestive elements in a pretrial identification procedure making it all but inevitable that the victim will identify one person as the criminal, the procedure is so undermined that it violates due process. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). However, it is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence and then it is for the jury to decide what weight the identification testimony should be given. Id. Even if the identification procedure is unnecessarily suggestive, testimony concerning it is admissible if the identification is reliable. Id. We do not reverse a trial court’s ruling on the admissibility of an identification unless it is clearly erroneous, and we do not inject ourselves into the finding of reliability unless there is a very substantial likelihood of irreparable misidentification. Id.
As the lineup challenged in this appeal was never admitted into evidence, we need only determine that it was reliable, and in doing so we consider the following factors: (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the prior description; (4) the level of certainty; and (5) the time lapsed between the crime and confrontation. Id.
The totality of the circumstances supports the reliability of the victim’s identification of appellant as her attacker. While the first two factors cited in Bishop may arguably be influenced by the victim’s inability to remember anyone hitting her and while the victim’s prior description of her attacker proved somewhat inaccurate, the degree of certainty of the identification is overwhelmingly great and the time between the crime and the identification is short. The victim identified appellant as her attacker in the photographic lineup six days after the crimes occurred. Moreover, the victim positively stated, upon being found by the deputies, that her attacker was the man she had met at the garage earlier that same day. Two other witnesses, Ron Yates, owner of R.L.’s Garage, and Yates’ stepson, testified that appellant was the man who was with the victim at the time in question. The degree of certainty of the identification is overwhelming. The totality of the circumstances therefore indicates the identification was reliable and we cannot say-the trial court was clearly erroneous in allowing testimony about the lineup.
JUROR TESTIMONY AT MOTION FOR NEW TRIAL
When the state first charged appellant with the crimes against the victim, rape was included among the other charges of kidnapping, battery, and theft. The rape charge was dismissed by the state and appellant successfully moved in limine to exclude any reference at trial to the fact that appellant had originally been charged with rape. The state complied with the ruling and no references about the rape charge were made during trial. However, the plastic bags containing the van keys and wedding ring which were admitted into evidence reflected that the charges of “rape/assault/theft” were involved in appellant’s case. After trial, it was brought to appellant’s counsel’s attention that the jurors had seen the word “rape” on the two bags and had discussed it during their deliberations. Appellant then moved for a mistrial and to allow juror testimony on the motion.
The trial court denied appellant’s motion to present juror testimony. Appellant claims this was error because although jurors are not permitted to testify about matters occurring during deliberation, they are permitted to testify as to whether extraneous prejudicial information was improperly brought to their attention or whether any outside influence was improperly brought to bear upon any of them. A.R.E. Rule 606(b).
In the present case, there was no extraneous prejudicial information presented to the jury. The evidence bags and contents were properly admitted into evidence. The bags therefore did not constitute extraneous prejudicial information. Any testimony or affidavits by the jurors regarding the appearance of the word “rape” on the bags would have been inadmissible pursuant to A.R.E. Rule 606(b) and the trial court was correct in its ruling.
Moreover, appellant’s counsel waived any possible objection to the appearance of the word “rape” on the bags as he viewed the bags a week prior to trial and did not object to the appearance of the word “rape” then or when they were admitted into evidence. This court stated in Tosh v. State, 278 Ark. 377, 646 S.W.2d 6 (1983) that an accused may not await the outcome of the case before bringing an alleged error to the trial court’s attention.
MOTION FOR NEW TRIAL
Appellant claims he was denied a fair and impartial trial due to the appearance of the word “rape” on the evidence bags. He moved for a new trial pursuant to Ark. Code Ann. § 16-89-130(c) (1987). Appellant argues the state was under an affirmative obligation to exclude the word “rape” from the bags since it assured the trial court it would make no reference to the rape charge during the trial. Appellant argues he relied on the state’s assurance.
The decision whether to grant a new trial is left to the sound discretion of the trial court and we do not reverse its decision absent an abuse of discretion. Hall v. State, 306 Ark. 329, 812 S.W.2d 688 (1991). Here, the trial court carefully considered the issue and concluded appellant was not prejudiced by the appearance of the word “rape” on the evidence bags. The trial court considered whether the jury could have been improperly influenced in this regard and concluded it could not. The trial court reasoned that the word “rape” appeared in a very limited context on the bags along with some thirty or forty other words, all written in the same type. The court also noticed that the word “kidnapping” did not appear on the bags. The trial court also considered the state’s argument that appellant waived any objection to the bags by failing to make an objection before or during trial. The trial court observed that appellant’s counsel had an opportunity to examine the evidence bags and contents a week prior to trial. We have reviewed the trial court’s observations and reasoning and conclude there was not an abuse of discretion in denying the motion for new trial.
The record has been examined in accordance with Ark. Sup. Ct. R. 11(f). There were no rulings adverse to appellant which constituted prejudicial error.
That portion of the judgment convicting appellant for kidnapping is reversed and dismissed. The remainder of the judgment convicting appellant of first-degree battery and theft is affirmed.
Hays and Glaze, JJ., dissent. | [
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Per Curiam.
Appellant Donald James Carrier was convicted by the trial court sitting without a jury of first degree murder and sentenced to life imprisonment in the Arkansas Department of Correction. It is from that conviction that appellant brings this appeal.
Pursuant to Anders v. California, 386 U.S. 738 (1967), appellant’s counsel has filed a motion to be relieved as counsel and a brief stating there is no merit to the appeal. The State concurs that the appeal has no merit. Appellant has filed a pro se brief in which he raises ineffective assistance of counsel as a point for reversal. The allegation cannot be considered, however, because allegations of ineffective assistance of counsel may not be raised for the first time on appeal. Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981). The proper remedy to challenge the adequacy of an attorney’s representation is a petition for postconviction relief under A.R.Cr.P. Rule 37.
Appellant was charged with the strangulation death of. an El Dorado woman. He waived trial by jury and stipulated that the facts supporting the charge, including his handwritten statement about the crime, psychologist’s and psychiatrist’s reports, the police report, medical examiner’s report and crime lab report, would be submitted to the trial court for its determination of whether he was mentally incompetent when the crime was committed.
If the accused wishes to submit the question of his legal responsibility for a crime to the trial court on documentary evidence by stipulation without the appearance óf witnesses, he may do so. See United States v. Wray, 608 F.2d 722 (8th Cir. 1979), cert. denied 444 U.S. 1048 (1979). The trial court then has the duty as trier of fact to determine from the evidence before it whether the accused was legally sane or insane. Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980). The appellate court does not attempt to weigh the evidence or pass on the credibility of the medical reports where the opinions of the doctors conflict. Parker, supra; Curry v. State, 271 Ark. 913, 611 S.W.2d 745 (1981). This Court must affirm the trial court’s finding on the issue of sanity if there is substantial evidence to support it. Parker, supra. In appellant’s case the psychiatric report of the Arkansas State Hospital concluded that he was “fit and responsible.” We find this to be substantial evidence to support the trial court’s finding.
From a review of the record and briefs before this Court, we find the appeal to be without merit. Accordingly, counsel’s motion to be relieved is granted and the judgment is affirmed.
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Robert H. Dudley, Justice.
In 1963 the City Council of Augusta passed a comprehensive zoning ordinance. It provides that before the city council may act upon a proposed change in the boundary of a zoned area the matter must be submitted to the city planning commission. In 1982 the city council, by ordinance, extended the boundary of a zoned area even though the proposed change was never submitted to the planning commission. The boundary changes resulted in a zoning classification which prevented completion of a metal grain storage facility on appellant’s property. Appellant filed suit in chancery court seeking to enjoin the city from enforcing the 1982 ordinance. While many issues are argued, the pivotal one is whether the city council may disregard the procedural requirements of its zoning ordinance and change a boundary without any preliminary action before the planning commission. The resolution of the issue turns on whether the procedural requirements of the comprehensive zoning ordinance are mandatory or discretionary. Jurisdiction is in this Court as the case involves the interpretation of a municipal ordinance. Rule 29 (1) (c). The chancellor upheld the 1982 ordinance amending the boundary. We reverse since the city did not substantially comply with the mandatory procedural provisions of the comprehensive zoning ordinance of 1965.
Before deciding this case we were faced with a difficult appellate procedural problem. While appellant makes a two and one-quarter page argument on the pivotal issue it does not give one citation of authority. In effect, we have been asked to research the law for appellant. In contrast, the appellee city has submitted an excellent brief.
In Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977) we stated that we will not perform research for an appellant unless it is apparent from the argument that the point is well taken. Here, it is clear that the appellees did not follow the procedure set out in its ordinance. After deliberation we have decided that justice requires our consideration of the issue.
Cities do not have the inherent authority to enact legislation. The validity of city ordinances depends on authority granted either by the Constitution or the General Assembly. City of Little Rock v. Raines, 241 Ark. 1071, 411 S. W.2d 486 (1967). In addition, at common law the property rights of the landowner included the right to occupy his land as he saw fit. In Arkansas the enabling authority for limiting that right by zoning is statutory. Ark. Stat. Ann. Title 19, Chapter 28 (Repl. 1980). The enabling legislation which in general regulates exercise of zoning powers today is Act 186 of 1957. Wright, Zoning Law in Arkansas: A Comparative Analysis, 3 U. Ark. Little Rock L. J. 421 (1980). The 1957 Act, before a later amendment, required a complete review by a planning commission before the legislative body of the city took action to alter boundaries. There were no exceptions. However, the enabling legislation was amended in 1959 to authorize an alternative procedure to amend boundaries simply “by a vote of the city council.” Ark. Stat. Ann. § 19-2830 (b) (Repl. 1980). It was after this 1959 alternative procedure had been statutorily authorized that Augusta, in 1963, adopted its comprehensive zoning ordinance. The ordinance adopted does not provide for the alternative method of amendment of boundaries, but, instead, provides for amendment only through the complete planning procedure. That choice of procedures does not conflict with the enabling statute for it simply continues to authorize the more extensive planning procedure.
The doctrine of implied repeal applies to ordinances as well as statutes. Helena v. Russwurm, 188 Ark. 968, 68 S.W.2d 1009 (1934). However, the 1982 ordinance is not repugnant to the 1963 original zoning ordinance as the 1982 ordinance does not mention the failure to properly administer the proposed zoning boundary change. Likewise, the 1982 ordinance does not contain any language indicating an attempt to repeal, expressly or by implication, the administrative procedure set out in the original zoning ordinance. Thus, the original zoning ordinance providing for the extensive planning procedure is still in effect.
We have held that a failure to substantially comply with a procedural requirement of the enabling statute renders a zoning ordinance invalid. Searcy v. Roberson, 224 Ark. 344, 273 S.W.2d 26 (1954). Where referral to a planning commission was statutorily required, we held the requirement to be mandatory. City of Corning v. Watson, 252 Ark. 1277, 482 S.W.2d 797 (1972).
A city is required to comply with the mandatory procedural rules of its own municipal ordinances. Welch v. Niagra Falls, 210 App. Div. 170, 205 NYS 454 (1924); Pima County v. Clapp, 23 Ariz. App. 86,530 P.2d 1119 (1975); see 1 R. Anderson, American Law of Zoning, §§ 4.03 & 4.04 (2d ed. 1976). To hold otherwise would encourage the arbitrary use of power which could result in discrimination in administration.
The issue then becomes whether the procedural requirements of the 1963 comprehensive zoning ordinance are mandatory or directory. The same principles for determining whether statutory provisions are mandatory or directory have been applied to determine the mandatory or directory import of city ordinances. 2A C.D. Sands Sutherland Statutory Construction § 57.13 (1973). In Edwards v. Hall, 30 Ark. 31, 37 (1875), we first adopted our principle that those things which are of the essence of the thing to be done are mandatory, while those not of the essence of the thing to be done are directory only.
Here, the essence of the comprehensive zoning ordinance is planning for the coordinated development of the municipality and its environs. In order to accomplish that objective the planning commission is to prepare plans for zoning, land use, streets and community facilities, make recommendations on development, prepare regulations, prepare ordinances for the city legislative body to pass to implement the plan, and generally to advise the city government. The ordinance was drafted so that the city legislative body could rely on the findings and recommendations of the planning commission. Upon adoption of the 1982 boundary change there was a total failure by the city to comply with the essence of the original zoning ordinance. Therefore, there was a failure to comply with the mandatory requirements of the comprehensive zoning ordinance where private property rights were involved. The attempt in 1982 to change the boundary without first complying with the mandatory procedural requirements of the comprehensive zoning ordinance was invalid.
Reversed. | [
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Humphreys, J.
Three separate suits were brought against appellee in the circuit court of ¡Mississippi County, Osceola District, for damages growing out of the death of Mrs. Katie Lomax Brewer, wife of H. D. Brewer and mother of George and H. D. Brewer, Jr., in a collision between appellee’s train and an automobile driven by Mrs. Brewer at a public crossing near Wilson, Arkansas, through the alleged negligence of appellee’s employees in operating said train.
One suit was brought by H. D. Brewer as administrator of the estate of H. D. Brewer, Jr., for pain and suffering; one by him as next friend of George Brewer for the loss of the care, custody and training of his mother; and one by himself for the loss and companionship of his wife.
Appellee filéd an answer in each case denying’ negligence on its part, and alleging that the deaths were the result of the sole negligence oif' Mrs. Brewer in driving the automobile onto said public crossing.
. The causes were consolidated for the purposes of trial and submitted upon the pleadings, the testimony adduced by the respective parties and the instructions of the court, resulting- in a verdict and judgment in favor of appellant for $-3,000 as next friend for his son, George Brewer, from which no appeal wias taken; and adverse verdicts and consequent judgments dismissing his complaint for the loss of his wife and for the pain and suffering of his son, H. D. Brewer, Jr., from which adverse verdicts and judgments he has duly appealed to this court.
The testimony introduced by appellant tended to show that the train approached the crossing at a speed of thirty-five miles an hour without giving the statutory warnings, struck and demolished the automobile in which his wife and children were riding, killing her instantly and fatally injuring his son, H. D. Brewer, Jr., who was only nine years of age and who suffered pain and anguish for about seven hours after the injury and before hi® death.
The testimony introduced by appellee tended to show that the statutory signals were given as its train approached the crossing, and that Mrs. Brewer drove the automobile upon the crossing without heeding the warning, -and so suddenly that it was impossible to stop the train before it struck the automobile.
Appellant contends for a reversal of the judgment dismissing his complaint as administrator of his son, H. D. Brewer, Jr., because the court amended instruction number six requested by him so as to prevent a recovery if H: D.-Brewer, Jr., was guilty of contributory negligence. The amendment or modification of the instruction was erroneous because contributory negligence on his part was not pleaded as a defense, and because same was entirely abstract. He was riding in the back seat, was only nine years of age and" did nothing whatever to contribute to his injury. As amended the instruction was inherently erroneous, and was in conflict with other instructions which had been given by the court.
Appellant also contends for a reversal of the judgment dismissing his complaint for the loss of his companion in life because the trial court refused to instruct the jury, after the argument began, that they could not consider the fact that Mr. Brewer had married again in passing on the question of the liability of defendant (appellee) or measure of damages. The only reference to'such an instruction 'being requested and refused is in the bill of exceptions, and it does not appear that an exception was saved to the action of the court in refusing to give the instruction. In view of the fact that no exception wias saved to the refusal of the court to give the requested instruction, this court cannot decide whether the trial court abused its discretion in refusing to give same.
The judgment dismissing appellant’s complaint as administrator of the estate of H. D. Brewer, Jr., is therefore reversed and remanded for a new trial, and the judgment dismissing his complaint for the loss of his wife is affirmed. | [
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Lyle Brown, Justice.
Appellant’s Rule I petition was denied and he appeals on the grounds that he had inadequate assistance of counsel, and that he did not make an intelligent waiver of his right to a jury trial.
In 1968 appellant entered a plea of guilty to having carnal knowledge of his step-daughter, age eleven years. He was sentenced to a period of not less than ten nor more than thirty years. On August 26, 1968 the court appointed attorney Marion Gill to represent the defendant and on the same day the plea of guilty was entered. Appellant testified at the Rule I hearing that the attorney conferred with him for about ten minutes; that he was told by the attorney he would get a life sentence if he did not plead guilty; that he had a fourth grade education; that no constitutional rights were ever explained to him; and that he was not told he had a right to trial by jury.
Deputy Sheriff Atkinson testified that he assisted Sheriff Robert Moore (now deceased) in the arrest of appellant and that while the three men were sitting in a car he heard Sheriff Moore read the rights form to appellant. He said the sheriff particularly explained to appellant that he had a right to a lawyer but appellant at that time did not ask for one.
Attorney Marion Gill testified on behalf of the State. He could not recall how long he interviewed the appellant, but it was his opinion that it was much longer than ten minutes. The attorney said he explained the applicable law to appellant, explained his rights, and obtained from appellant the information needed to properly advise him. The attorney could not recall specifically whether appellant related that he was guilty but said: “I have never in any criminal case allowed the person to enter a plea of guilty if they told me they were innocent.” Mr. Gill said he also interviewed Sheriff Moore, one of the investigating officers. Also, the prosecuting witness happened to be in the courtroom and it was his recollection that he talked with her. He said there was nothing about the interview that indicated mental incompetency on her part. The attorney said he entered into plea bargaining negotiations either with the prosecuting attorney, the sheriff, or both, and related the results thereof to appellant. He said it was appellant’s decision “to accept the terms that were offered and to enter a plea of guilty”. The attorney was emphatic in his recollection that he told appellant he was entitled to a jury trial if he entered a plea of not guilty. Also, he was certain, he said, that the decision to enter a plea of guilty was the decision solely of appellant. Mr. Gill said he did not talk to the examining physician because, based on what appellant told him, he did not consider it necessary.
We think the evidence is sufficient to sustain the trial court’s conclusion that appellant had adequate assistance of counsel. That is especially true in light of our rule that there is a presumption of competence which of course appellant must overcome. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657.
Since it is our conclusion that appellant voluntarily entered a plea of guilty, there is no need to discuss his other point, namely, that he did not waive a trial by jury. Medley v. Stephens, 242 Ark. 215, 412 S.W. 2d 823 (1967) is authority for the proposition that a voluntary plea of guilty effects a waiver of trial by jury.
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George Rose Smith, J.
This action was brought by the appellees to enjoin the appellants from repeatedly trespassing upon a 12-foot strip of land to which the appellees asserted title. By answer and cross-complaint the appellants alleged title in themselves and asked for a similar injunction against the appellees. After hearing-oral testimony the chancellor found for the plaintiffs and entered the decree from which the appeal is taken.
Before the case was reached for submission to this court the appellees filed a motion to strike the bill of exceptions and to affirm the decree for want of error on the face of the record. The facts relied on to support this motion are almost identical with those presented in Johnson v. United States Gypsum Co., ante, p. 264, 229 5. W. 2d 671. There we construed Act 269 of 1949, which establishes the procedure for the preservation of oral testimony in the chancery district in which both these cases arose. There, as here, the chancellor directed at the beginning of the trial that the testimony be transcribed and filed as depositions. We held in the earlier case that under Act 269 this direction was a sufficient reservation of power to approve the reported testimony after the lapse of the term. But there, as here, the chancellor had not actually approved the transcribed testimony within the six months allowed for the taking of an appeal, nor within the additional thirty days allowed by our Rule 5(d) for the filing of transcribed testimony. In reluctantly holding that the proffered testimony had to be stricken we said: “But the trouble here is that the report of the testimony heard below has not yet been approved by the chancellor, and under our Rule 5(d) the time for filing transcribed testimony has expired. We are therefore unable to take this evidence-into account in reaching our decision.”
In the case at bar the same situation exists, except for one additional fact. In the Johnson case the chancellor’s approval was never obtained. In the present case the decree was entered on March 7, 1950, and the appeal was lodged here in August. After the appellees filed their motion to strike, the appellants submitted the testimony to the chancellor and obtained his approval on October 18 — more than six months and thirty days after the entry of the decree. The appellants argue that the two cases are distinguishable, their theory being that the mere filing of the reported testimony is a compliance with Rule 5(d), the chancellor’s approval being a formality that may be attended to later.
Our decisions are at variance with this suggestion. The chancellor’s examination and approval are not mere formalities; they transform what only purports to be transcribed testimony into an authenticated record on which we may rely. As we said in Elvins v. Morrow, 204 Ark. 456,162 S. W. 2d 892: “The trial court ... is the final authority, and approval by the judge of what purports to be transcribed testimony is imperative . . .” There must evidently be a time limit within which appeals to this court must be perfected. Rule 5(d) is explicit in stating that in no event will transcribed testimony filed more than thirty days after the time for appeal be permitted to become a part of the record. The purpose of this rule is to fix a definite date by which the testimony must be filed in this court. We think the rule manifestly refers to testimony so authenticated as to become a part of the record, and not to purported testimony that must still be taken from our files and submitted to the trial court. The motion to strike must be sustained, and as no error appears on the face of the record the decree is affirmed. | [
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Habt, C. J.,
(after stating the facts). The only ground relied upon for a reversal of the judgment is that the evidence is not legally sufficient to support the verdict. It is claimed that Chester Benson was an accomplice in. the theft of the automobile, and that there -is no substantial corroboration of his testimony as required by the statute. .
An accomplice is one who could himself be convicted of the crime charged against the defendant, either as principal or accessory. Henderson v. State, 174 Ark. 835, 297 S. W. 836.
Under the, evidence adduced, the jury might have found that Chester Benson was present and participated in the theft of the automobile. It is true that he denied having anything to do with the theft of .the automobile and said that he was not present when it was taken, but it cannot be said that his testimony in .this respect, is uncontradicted. According to the testimony of the owner of the automobile, four distinct sets of tracks of persons were found near where the automobile had stood just before it had been stolen. One set of tracks appeared to have been made by a crippled person who walked with a cane or a crutch. According to the testimony of the sheriff, he found Chester Benson- and Buster Yates hiding hear the automobile where it had stalled in the road for lack of gas.’ He arrested both of them, and had them, in the car with him when he returned the automobile to its owner. The owner of the automobile testified that the sheriff, had Buster Yates and the crippled fellow in the car when he returned it to him. From, this testimony it' might be inferred that Chester Benson was the crippled fellow, 'and it might also- be inferred from the testimony of the owner -of the car that the tracks of the crippled fellow found near the car were those of Chester Benson. Hence, if Benson was found to be an accomplice, it was necessary to corroborate his testimony by that of other witnesses tending to connect the defendant with the commission of the crime, and this testimony must be of a substantive character. Middleton v, State, 162 Ark. 530, 258 S. W. 995 ; and Griffin v. State, 172 Ark. 606, 289 S. W. 765.
;. This brings us to a consideration whether there is any substantive testimony, independent of that of Chester Benson, tending to connect the defendant with the theft of the automobile." The uncontradicted evidence shows that Chester Benson, Buster Yates, Leonard Yates, Boy Cook, and, Jaimes Poster and Fred Taylor, all escaped from, jail about 8:30 o ’clock one evening, and went into the woods near the home of the parents of the Yates brothers. On the next morning Búster Yates went to the home of his parents and got them some breakfast. About noon of that day, Fred Taylor left the party and later on the day was captured by the sheriff. He told the sheriff about the others being camped in the woods near an old mill site. The owner of the automobile also reported its theft to the 'sheriff. The sheriff followed the tracks of the automobile down towards Pordyce, and found it stalled in the road because there was no gas in the tank. He searched in the woods' nearby, and arrested Buster Yates and Chester Benson who were hiding there apparently in charge of the automobile. They reported that Leonard Yates and Boy Cook had gone to secure some gas. The sheriff took Chester Benson and Buster Yates in.the car with him and went to Fordyee. Upon his return he found some gas had been placed in the tank of the automobile during his absence, and that there were two sets of trácks leading away from the automobile.- Neither'of these tracks''were those'of a crippled" person. This indicated that the ■ tracks were those of other persons than Buster Yates and Chester BenSon, who, as we have already ■ seen, was crippled. These facts tend to show‘that these parties had kept, together, and all participated in the theft of the automobile. -It is true that Buster Yates, Boy Cook and the defendant all testified that they had left the other-persons before the automobile was stolen, but the jury might not haCe believed them. All óf the witnesses testified- that Fred Taylor left them about noon on the next day after they escaped from jail. As we have already seen, the jury might hiave found that four persons were present and participated in the theft of the automobile. Buster Yates and Chester Benson were arrested near the automobile on the next morning after it was stolen. It is not shown that any other persons besides Leonard Yates and Boy Cook had been recently with them. Hence, the jury might have found that, notwithstanding their testimony to the contrary, they continued with Bolster Yates and Benson and united with them in the theft of the automobile. Therefore, the judgment will be affirmed. | [
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George Rose Smith, Justice.
The appellant’s first trial upon a murder charge resulted in a hung jury. At a second trial he was found guilty of involuntary manslaughter and sentenced to imprisonment for one year. Officer Vonnie Taylor had testified at the first trial, but he was not available at the second. The defense sought to introduce Officer Taylor’s earlier testimony, but the court excluded parts of it as hearsay. Asserted error in that ruling is now relied upon for reversal.
Officer Taylor investigated the homicide, which occurred in a cafe in Conway. The number and type of weapons involved in the affray were critical facts. At the second trial the court excluded certain questions and answers, such as the following excerpt from the record made at the first trial:
Q. [By Mr. Jones, a defense attorney.] And did you get any information from Gloria Burgess about any weapons?
A. Yes, sir.
Q. Not what she said, but did you get any information from her?
A. Yes, sir.
Q. And from her, how many weapons did you get information about?
A. Two.
Q. And what where they?
A. A knife and a gun.
Mr. Streett [the prosecutor]: If it please the Court, now Mr. Jones is doing exactly what the Court instructed him not to do. This witness can’t testify what somebody else said.
Mr. Jones: I did not ask that.
The Court: Ladies and gentlemen of the jury, disregard any testimony at all of this witness, or any other witness, based upon hearsay. If the defendant did not say it, or if it was not said in the presence of the defendant, forget about it. Go ahead.
No error appears. Counsel seems to have been under the impression that the hearsay rule can be avoided by asking for the substance of an out-of-court statement rather than for an exact quotation. The rule cannot be evaded in that way. McCormick on Evidence, § 249 (2d ed., 1972). The prohibition against hearsay would cease to exist if it could be so easily circumvented.
It is also argued that there was no objection by the State to the testimony when it was given at the first trial. We have quoted the objection and the court’s ruling that the testimony should not be considered by the jury. Even though the witness answered the questions before the objection was made, the delay of a few seconds was not sufficient to warrant our holding that the trial court abused his discretion in sustaining the objection. See Warren v. State, 103 Ark. 165, 146 S.W. 477, Ann. Cas. 1914B, 698 (1912), and Clardy v. State, 96 Ark. 52, 131 S.W. 46 (1910).
Affirmed. | [
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Butler, J.
This suit was first brought in the court of a justice of the peace by the filing of the following complaint :
“The plaintiff, W. P. Hembey, for his cause of action against defendant states that sometime-in 1928, prior to November 1, 1928, the defendant, B. B. Cornelius, represented to plaintiff that one E. P. Hammons was indebted to him, and that he was working for the said E. P. Hammons, and, acting upon such representations made from time to time, he did furnish the said B. B. Cornelius goods, wares, and merchandise of the value of sixty-two and 88/100 dollars, of which amount the said defendant has paid fifteen and no/100 dollars, leaving- a balance now due the plaintiff-of $47.88, which is justly due and unpaid. That the representations made by defendant, namely, that Hammons was indebted to him and had not paid and was not paying him was relied upon by plaintiff, and that plaintiff would have sold him nothing on open account without such representations; and that said representation was in fact false, as plantiff has since been in formed, and that said goods were fraudulently obtained. Premises considered, plaintiff prays that he have judgment against defendant, R. B. Cornelius, in the sum of $47.88 in tort, for Ms costs herein expended and for other just and proper relief.”
Accompanying- the complaint was an itemized, verified account, the first item being dated November 1, 1929, “To bal. agreed on............$17.83,” following which on various dates from November 3, 1929, to and including January 25,1930, appear various items, some being for merchandise in small amounts, medicine, and doctor’s visits, aggregating the sum of $52.88. Three credits appear at various times, two cash payments of $5 each and a credit on July 20, 1930, for work, leaving a balance due of $47.88.
There -was a trial before a jury, and the following verdict was rendered: “We, the jury, find judgment against the defendant for $47.88 for Dr. W. P. Hembey,” and the justice thereupon rendered judgment in the following language: “It is therefore ordered, considered and adjudged that the plaintiff have and recover of defendant the sum of $47.88 as sued on in complaint and all costs.” The judgment was rendered on August 23, 1929. On September 14, following, an execution having been issued, the defendant filed a schedule claiming the property listed therein as exempt, stating in the said schedule that he was a married man, the head of a family, and the property claimed was all the property owned, it being less than the amount allowed under the exemption laws. The justice denied the claim for exemptions and refused to issue a supersedeas, on the ground that the judgment was in tort, and that the five days ’ notice of the filing of the claim had not been given. Prom this order of the justice there was an appeal to the circuit court, where a demurrer was interposed to the complaint of plaintiff (appellant here) and the court found “that the demurrer to the complaint should be sustained with reference to statement or allegation of the complaint of the right to obtain, judgment in tort, ’ ’ and ordered ‘ ‘ that the demurrer be and the same is hereby sustained with reference to the right to obtain judgment in tort.” The plaintiff refused to plead further, whereupon the court dismissed the cause of action, and the plaintiff at the time saved his exceptions et cetera.
As the trial was in the justice court, no written pleadings were necessary, and we are unable to say upon what testimony the jury based its verdict, whether it found liability because of fraud and deceit in the procurement of goods and services, or whether the liability was founded upon contract. Therefore we are remitted to the papers filed by the plaintiff and the verdict of the jury in the ascertainment of the nature of the action. Such being the case, in order to sustain the contention of the appellant that it was an action sounding in tort, all the necessary elements of such an action must be specifically pleaded. Otherwise, the action must he held to be one based upon contract. We are of the opinion that the complaint and the account filed with it present a claim for debt by contract. Appellant appears to have been a doctor and a merchant, and, while he alleges that he furnished the goods upon the faith of certain false representations made by the appellee, these representations do not appear to us to be of a material nature. The representation was merely that one E. P. Hammons was indebted to the appellee, and that appellee was working for the said Hammons. In the first place, the amount of Hammons’ debt to appellee is not alleged, nor the financial responsibility of Hammons, nor that the appellee had no other means or resources from which he might expect to pay for the goods, and that he purchased them with fraudulent intent not to pay for them. •
In the case of Winter v. Bandel, 30 Ark. 362, we held that the allegations to support a recovery on the ground of fraud for false representations must relate to material matter. In the case of Taylor v. Mississippi Mills, 42 Ark. 247, 1 S. W. 283, it was held, in order to avoid a sale on the ground of fraud (or to sue for value in an action for deceit), a dishonest intention must exist at the time in the mind of the vendee, an actual intention to cheat or to do an act the necessary result of which will he to defraud the seller. To the same effect is the holding in the case of Mack v. Adler, 48 Ark. 70, 2 S. W. 345.
It is also settled law -that fraud is never presumed, but must 'be specifically pleaded and proved. These principles, we think, sustain our conclusion. The trial judge evidently intended by his order merely to allow the schedule and to order the supersedeas, for the appellant would be entitled to a judgment on his contract debt and the appellee to the relief he prayed, namely, that the exemptions be allowed and the judgment superseded as to the property claimed. As there appears to be some ambiguity in the judgment, the same is here modified to meet the view herein expressed, and as modified is remanded with directions to allow the defendants schedule of exemptions. | [
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George Rose Smith, Justice.
In 1973 the City of Fayetteville adopted a comprehensive ordinance regulating the size, height, and setback requirements of signs within the city. The preamble recited among other considerations that the city’s scenic resources had contributed greatly to its economic development, that the scattering of signs throughout the city was detrimental to the preservation of those scenic resources, and that a purpose of the ordinance was to preserve the city’s natural beauty. The ordinance was designed to regulate all signs erected after its effective date, January 19, 1973, and to eventually eliminate existing signs not conforming to the restrictions in the ordinance. To accomplish the latter purpose the ordinance directed that all on-site non-conforming signs either be altered to conform or be removed within seven years.
Several owners of non-conforming signs at once brought suit for a judgment! declaring the ordinance to be unconstitutional on its face and also in its application to them. The trial court held the ordinance to be unconstitutional as applied to the plaintiffs. We affirmed that decision except as to certain flashing signs that were hazardous to traffic. City of Fayetteville v. S & H, Inc., 261 Ark. 148, 547 S.W.2d 94 (1977), noted in 32 Ark. L. Rev. 797 (1979). Three opinions were written in the case, but no opinion was approved by a majority. The case at bar involves the same ordinance, the pertinent provisions of which are quoted in S & H.
After the seven-year grace period for non-conforming signs had expired, the present suit for a declaratory judgment and injunctive relief was filed on September 18, 1980, by the five appellees — a bank, a liquor dealer, two motel owners, and a sign company, who together own six nonconforming signs in a commercial zone in Fayetteville. The parties fully developed the case by stipulation as to facts and as to what various witnesses would testify. The chancellor, finding the case to be governed by the S & H decision, held the ordinance unconstitutional as a taking of the plaintiffs’ property without just compensation. The decree enjoined the enforcement of the ordinance against these plaintiffs. Our jurisdiction of the case is readily apparent. Rule 29 (1) (a) and (c).
The appellees’ six signs were lawfully erected between August, 1956, and May, 1969, with an average age today of more than 20 years. There is no proof of the actual value of any of the signs. Their salvage value is negligible. The president of a sign company would testify that the cost of constructing conforming replacements would range from $1,150 for a motel sign to $4,356 for a restaurant sign owned by the appellee sign company. All the signs have been fully depreciated for federal income tax purposes. If the seven-year amortization period is found to be reasonable, but if it is also found to be unreasonable to require the plaintiffs to remove the signs, the city will remove them without cost to the plaintiffs and preserve the salvage for them.
It is stipulated that the plaintiffs’ witnesses would testify that each of their signs has a remaining useful life of 15 years. The city’s witnesses would testify that in no instance is that remaining useful life more than 5 years. The plaintiffs do not contend that they would suffer businesses losses if they are required to replace their non-conforming signs with conforming ones. Neither do the plaintiffs contend that their real property would decrease in value if they are required to remove the non-conforming signs.
On the facts of this case we hold that the ordinance is valid as to these appellees, that the signs must be removed.
In view of the strong trend of the decisions in the various states during the past thirty years or more, it can hardly be doubted that an ordinance such as this one is valid as to signs to be erected in the future. At one time the courts held pretty generally that zoning ordinances could not be sustained if they rested primarily or solely upon aesthetic considerations, but that point of view is disappearing. See annotations, 21 A.L.R.3d 1222, 1235 (1968); 81 A.L.R.3d 486, 511 (1977). If the inhabitants of a city or town want to make the surroundings in which they live and work more beautiful or more attractive or more charming, there is nothing in the constitution forbidding the adoption of reasonable measures to attain that goal.
The difficulty, as in the case at bar, is created by the presence of existing unsightly structures. Billboards and junkyards are the most common examples. At first it was widely throught that the exemption of non-conforming structures would solve the problem on the assumption that time would repair the mistakes of the past. That, however, did not happen, as Chief Justice Kenison explained in detail in Lachapelle v. Town of Goffstown, 107 N.H. 485, 225 A.2d 624, 22 A.L.R.3d 1128 (1967). Rather to the contrary, nonconforming structures often increased in value, being monopolies protected by the zoning law itself from the intrusion of competitors.
Of course, zoning measures were unknown to the common law. It is thus not surprising that a zoning problem such as the elimination of non-conforming uses cannot be satisfactorily solved by the common law, either by the exercise of eminent domain or by resort to the law of nuisances. Ultimately the courts came to realize that the same principles that justify zoning laws themselves must also be invoked to eliminate non-conforming uses. A reasonable accommodation must be found between the public welfare and private ownership.
The most successful solution has been the enactment of amortization laws, such as the Fayetteville ordinance now at issue. The American Law Institute has summed up the prevailing view: “Amortization regulations were established on the principle that a property owner should be able to recoup his investment in an existing land use within a particular period of time, but that after that time he could reasonably be forced to discontinue the use without payment of compensation. By varying the time period in relation to the landowner’s investment the proponents of amortization sought to obtain judicial support by comparing the tech ñique to depreciation as used for accounting and tax purposes.” A.L.I., A Model Land Development Code, p. 146 (1976). After stating that for the most part the courts have been sympathetic to amortization, the text cites many decisions, including ten billboard or sign cases. In that category the approved amortization periods have ranged from one year to five years. A more complete discussion of the amortization cases is to be found in Williams, American Land Planning Law, § 116.06 (1975). See also, Wright, Zoning Law in Arkansas: A Comparative Analysis, 3 UALR L.J. 421,444 (1980). There can be no doubt that the principle of amortization is firmly embedded in the law.
We recognize that the amortization period must be fair to the property owners, but among the many cases approving the theory of amortization we find none suggesting that a period of seven years is unfair to sign owners. Moreover, this litigation has prolonged the life of the signs by another three years. As the concurring opinion in SirH stated: “The regulation of signs by cities is long overdue.” If an ordinance as moderate as the one before us cannot be sustained, the possibility of effective regulation becomes almost nonexistent.
Reversed and remanded for any necessary proceeding with respect to the removal of the signs.
Adkisson, C.J., and Holt and Purtle, JJ., dissent. | [
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Conley Byrd, Justice.
This is á wrongful death action brought by appellant Jerry Moore, Special Administrator of the estate of Michael Moore, deceased, against ap-pellee Johnny Rye. The jury found the issues in favor of Rye, and Moore appeals on the ground that the trial court erred in giving and denying the instructions hereinafter discussed and in overruling objections to testimony elicited on cross-examination.
The record shows that West Second Street in Marked Tree at the intersection with Oak Street is straight and without obstructions along side the road to block the vision of a driver. There are six homes on the east side facing West Second, and on the west side there is one home facing West Second. There are other homes just off Second Street on, Oak Street.
Mr. Rye states that he was traveling north on West Second Street and that when he- was 50 yards from the house on the west side, he noticed some people standing in the front of the porch. At the same time he also noticed some people sitting on the porch of the Moore house on the east side. He admittedly waved to the people on the west side and after they waved back looked straight ahead down West Second Street. He neither saw the’ IB month old Michael Moore standing in the road, nor his mother racing across the yard toward him and did not know anything had happened until he heard a scream and then a thud. Mr. Rye had previously seen children about 150 yards from the houses where the collision occurred.
Mrs. Phyllis Moore states that when she saw the pickup truck driven by Rye, the decedent was by the ditch. She hollered at the decedent, but by the time she got to the ditch the decedent had climbed up at the side of the road and was struck as he stood up.
Mrs. Mary Lassiter who lived at the house where Gene Herrod was standing testified that as Mr. Rye waved, she saw the Moore baby and hollered, “Watch that baby.” In addition to the Moore’s three children, Mrs. Lassiter had a thirteen month old child, and another girl living on West Second had three or four children all below school age.
POINT NO. 1. Over the objection of appellant the trial court gave AMI 604 on unavoidable accident. To sustain the trial court appellee argues that because a child of such tender years is not chargeable with negligence and because there was evidence that the mother, not a party, may have been negligent, this instruction was proper. We disagree, and for the reasons set forth in Houston v. Adams, 239 Ark. 346, 389 S.W. 2d 872 (1965), we hold that the trial court committed reversible error in giving the instruction. See also, Connor v. Cooper, 245 Ark. 386, 432 S.W. 2d 761 (1968).
POINT NO. 2. The trial court refused to instruct the jury, in accordance with AMI 909, as follows:
“Streets and highways are available for the use of both pedestrians and motorists. The driver of a motor vehicle must anticipate the presence of pedestrians on streets and highways and use ordinary care to avoid injuring them.”
Appellee argues that the trial court did not abuse its discretion in refusing this instruction because a thirteen months old baby is not a pedestrian. We hold that the trial court erred in refusing the instruction. Nothing is more common or accepted as a way of American life than the visiting that takes place between neighbors living along and across the streets in the many cities of this nation.
POINT NO. 3. The proof here shows that the West Second Street was a busy industrial street with a few remaining residences on both sides of the street. Furthermore, the appellee admittedly knew that children habitually played within 150 yards of the point of collision. Under the circumstances we hold that the trial court erred in refusing to instruct the jury, in accordance with the second paragraph of subsection “B” of AMI 901, to the effect that “when the driver sees danger ahead, or it is reasonably apparent if he is keeping a proper lookout then he is required to use ordinary care to have his vehicle under such control as to be able to check its speed or stop it, if necessary, to avoid damage to himself or others.” The proof here also shows that both Mary Lassiter and the mother tried to warn appellee of the presence of the baby before it was struck.
POINT NO. 4. The trial court refused to give AMI 605 which provides:
“A person who knows or reasonably should know, that a child may be affected by .his act, is required to anticipate the ordinary behavior of children and to use care commensurate with any danger reasonably to be anticipated under the circumstances. A failure to use this degree of care is negligence.”
As we understand the record, there is proof that tends to show no reason why appellee did not see the child crawling in the slight ditch along the street before the child stood up on the edge thereof and was struck by appellee’s vehicle. Furthermore, since appellee’s attention was attracted to the people on the west side of the street, one could logically expect the same conduct to attract the attemion of a child living in the homes on the east side of the same street. Under the circumstances we hold that the instruction should have been given.
POINT NO. 5. Appellant on direct had testified that he and the child’s mother had been separated some four or five months at the time of the accident. On cross-examination he was interrogated, over objections, with reference to the amount of child support he had contributed during that time and as to the amount of fines he had paid for driving while intoxicated and public drunkeness during the same time. When we consider that to recover for mental anguish one must show that he suffered more than normal grief, we cannot say that the trial court abused its discretion in permitting the evidence to go to the jury. The evidence as to the support of a child or the lack of support would certainly be relevant as to appellant’s affection and attitude toward the child during his life time. The testimony as to the amount of fines paid for driving while intoxicated and for public drunkeness would show a source of funds or the ability to raise funds that were not used for support.
The trial court also permitted appellant to be interrogated relative to a divorce suit filed by the mother of the child against him and the service of the summons on him that day. This we hold was error. We fail to see how the filing of the divorce action could have any relevancy to the issue of whether appellant suffered mental anguish as a result of the death of his child.
Reversed and remanded.
Fogleman, J., dissents in part. | [
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Lyle Brown, Justice.
This eminent domain case concerns a 104 acre tract with a quarter mile frontage on State Highway 23. The highway commission cut a considerable swath across the lands, taking 51.10 acres for Interstate 30 and a rest area. After the taking there remained wooded lands north of the new highway and the homesite and cultivated lands south of the new highway and fronting on State Highway 23. By her testimony the landowner fixed her damages at $28,100; her expert witness fixed the damages at $20,300. The jury awarded damages of $28,100. For reversal appellant contends (1) that the testimony of the landowner to the before taking value was insubstantial, and (2) that the court should have struck the before value of the landowner’s expert witness. We find no merit.
It is axiomatic that a landowner has more leeway in fixing values than does an expert. We said in Arkansas State Highway Comm. v. Fowler, 240 Ark. 595, 401 S.W. 2d 1 (1966): “It is not necessary to show that he was acquainted with the market value of such property or that he is an expert on values. He is deemed qualified by reason of his relationship as owner to give estimates of the value of what he owns. The weight of his testimony is, of course, affected by his knowledge of the value.” To the same effect see Arkansas State Highway Comm’n v. Kennedy, 248 Ark. 301, 451 S.W. 2d 745 (1970).
Appellee and her husband purchased the property in 1960 and moved onto it. After the husband’s death in 1965, appellee continued to live there another six years. She detailed a good knowledge of the topography. The house is located on high and level ground; to the north of the house the land is uphill; at the point where appellant indicated the rest area, there is a beautiful view of the entire countryside, including the river, the town of Ozark, and the locks and dam. She estimated the value of the entire tract before the taking at $400 per acre, based on what she thought a willing buyer would pay. On cross-examination she was questioned concerning why all the acreage — woodlands and cultivated lands — was valued at $400 an acre. She said her figure was based on a sale of the acreage as a unit. She conceded that her knowledge of sales in the area was based on hearsay; however, she related she sold two acres off the tract fronting on Highway 23 for $750 an acre.
The fact that the landowner had no personal knowledge of the details of other sales does not destroy her testimony. The fact that she took into consideration what she had heard several different persons say in discussing the value of lands did not make her testimony on that score inadmissible. Arkansas State Highway Comm. v. Russell, 240 Ark. 21, 398 S.W. 2d 201 (1966). It is also said in Russell that if cross-examination shows a questionable basis for the landowner’s values, that fact has a bearing on the weight to be given the witness’ testimony. We think the landowner’s testimony passes the substantial evidence test.
Now as to the before taking value given by the expert, Eddie Anderson. The witness has lived in Ozark all his life and for the past nineteen years has been a licensed real estate broker. He has made many appraisals in the area, some for federal agencies and others for private landowners. He has been acquainted with the subject property all his life. He gave an across the board value of $300 per acre. He believed the highest and best use of appellee’s property was for homesite development. He said there was a good view in every direction, including the locks and dam, the Arkansas River, the town of Ozark and a mountain range. He stated specifically he did not know of another tract of 100 acres in Franklin County comparable favorably to the subject property.
As to the three comparables used, one was a three acre tract which sold for $1800 per acre; another a 23 acre tract which sold for $1,087 per acre; and another a 51 acre tract abutting a dirt road which sold for $200 an acre. We are unable to say the trial court erred in not striking the witness’ before value testimony.
Affirmed.
Harris, C.J., not participating. | [
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Steele Hays, Justice.
Minerva Enterprises, appellant, owns a mobile home park. Minerva’s lease agreement with its tenants provides for a septic system on the property to be maintained by Minerva. One of the tenants was away for several days and returned to find her mobile home flooded with solid and liquid sewage. The tenant filed suit against Minerva claiming it had failed to exercise ordinary care in maintaining the septic system. The tenant was awarded a judgment against Minerva and on appeal to this court the judgment was affirmed and the judgment was satisfied by Minerva. Minerva Enterprises, Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992).
Minerva carried a commercial liability insurance policy with Bituminous Casualty Corporation, appellee, and requested that Bituminous defend under its policy of insurance. Bituminous refused to defend or to indemnify based on a pollution exclusion endorsement contained in the policy.
Minerva filed a declaratory judgment action against Bituminous for its failure to defend. The trial court granted summary judgment in favor of Bituminous and Minerva brings this appeal.
Minerva’s general liability policy with Bituminous contained an exclusion for damage from pollutants. On that basis the trial court granted summary judgment for Bituminous, as stated in a letter opinion:
Furthermore, the policy excludes ‘waste.’ Raw sewage, liquid or solid is ‘waste.’ Reasonable people cannot debate these points. Therefore, there are no genuine issues of material fact.
On appeal, the disagreement between the parties concerning the insurance policy centers on the interpretation of the word “pollutants” as it is used in the policy exclusion. The exclusion is embodied in a special endorsement to replace the original pollution exclusion in the policy. The endorsement reads:
POLLUTION EXCLUSION
It is agreed that the exclusion relating to the actual, alleged or threatened discharge, dispersal, release or escape of pollutants is replaced by the following:
(1) Bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants.
(2) Any loss, cost or expense arising out of any governmental direction or request that the named insured test for, monitor, clean up, remove, contain, treat, detoxify or neutralize pollutants.
Subparagraph (1) above does not apply to bodily injury or property damage caused by heat, smoke or fumes from a hostile fire. As used in this exclusion, a hostile fire means one which becomes uncontrollable, or breaks out from where it was intended to be.
Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.
Minerva makes two arguments. We find no merit in the first, which points to a definition of “waste” appearing in a separate endorsement which excludes coverage for nuclear material. This definition has no connection with the separate endorsement for pollutants, and the definition section of the nuclear material endorsement states specifically that the definitions apply to language “as used in this endorsement.”
The second argument is that the definition of “pollutants” in the policy was intended to exclude industrial wastes, not common household wastes, and at best, the definition is ambiguous. We agree.
The pollution exclusion is a recent innovation of the insurance industry that has spawned considerable litigation. Among the cases we find a group that deals with the definition of pollution. This line of cases supports the premise that the exclusion is intended to prevent persistent polluters from getting insurance coverage for general polluting activities, whether the insured or a third party, and was never intended to cover those who are not active polluters but had merely caused isolated damage by something that could otherwise be classified as a “contaminant” or “waste.”
The leading case in this group is Molten, Allen and Williams, Inc. v. St. Paul Fire and Marine Insurance Co., 347 So.2d 95 (Ala. 1977), where a land developer of a subdivision was sued by adjacent landowners for negligently causing sand and dirt to pass from the subdivision onto their property. The developer filed a third party complaint against its public liability insurer and the insurer defended on the basis of a pollution exclusion clause similar to the one before us:
[This policy does not] apply to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water. . .[but this endorsement doesn’t apply if the occurrence is sudden or accidental.]
The developer argued the exclusion only contemplated the discharge of industrial refuse into the environment and a reading of the exclusion as a whole, makes clear these exclusions were not intended to cover the unintentional washing of sand from rainfall into the plaintiffs’ lake. The developer also relied on the rule of ejusdem generis, that the specific examples following the general words, “irritants, contaminants or pollutants,” were of the industrial pollutant type. The appellate court agreed:
As noted [by appellant] the pollution exclusion clauses here, strictly construed, were intended to cover only industrial pollution and contamination. We agree with that position. We do not believe that the insured real estate developer, by a reading of the exclusion clause would reasonably expect that the alleged damage caused by its construction activity would be included in the descriptions set out in the “pollution exclusion” clause. In other words, while a liberal construction of the “pollution exclusion” clause would not include the damage allegedly caused by [appellant], the clause is not free of ambiguity. It is believed that the intent of the “pollution exclusion” clause was to eliminate coverage for damages arising out of pollution or contamination by industry-related activities. The use of specific industry-related irritants, con taminants and pollutants seem to indicate this was the reason for the exclusion. We judicially know that during the last decade, much emphasis has been placed upon protecting the environment. The pollution exclusion was no doubt designed to decrease the risk where an insured was putting smoke, vapors, soot, fumes, acids, alkalis, toxic chemical, liquids or gases, waste materials or other irritants, contaminants or pollutants into the environment. In any event, the clause here is ambiguous. [Our emphasis.]
The reasoning and holding of the Alabama court in Molton, supra, have been followed by most courts which have considered the problem. A-1 Sandblasting & Steamcleaning v. Baiden, 53 Or. App. 890, 632 P.2d 1377 (1981). (When spray painting a bridge, passing cars were hit by some of the paint. The court found that paint under these circumstances was not intended to be within the exclusion); Pepper Industries, Inc. v. Home Insurance Co., 67 Cal. App. 3d 1012, 134 Cal. Rptr. 904 (1977) (Plaintiff discharged gasoline into a city water system and a fire and explosion resulted causing damage to the system. Court held that fair reading of the exclusion did not include this type of damage).
In Grinnell Mutual Reinsurance Co. v. Wasmuth, 432 N.W.2d 495 (Minn. App. 1988), the court held the pollution exclusion did not apply to damage to a home caused by formaldehyde emitted from deteriorating insulation. “The ordinary reader of the exclusion would reasonably conclude that it would not limit coverage for respondents’ unexpected damage due to installation of building material in a home, but would exclude pervasive environmental pollution problems such as hazardous waste dumping.” The court also surveyed appellate decisions of other jurisdictions where the exclusion provision was held to apply. Without exception, it found elements in those cases, which included, e.g., wide-spread pollution, deliberate disposition of potentially hazardous waste or produced substances, none of which were present in the case before it.
The list includes recent cases. In Thompson v. Temple, 580 So.2d 1133 (La. Ct. App. 1991) tenants were overcome by carbon monoxide which leaked from a bathroom heater. The court held the pollution exclusion did not apply: “Pollution exclusion clauses are intended to exclude coverage for active industrial polluters, when businesses knowingly emitted pollutants over extended periods of time.” (Cites omitted.) And in Westchester Fire Ins. Co. v. City of Pittsburgh, Kan., 768 F.Supp. 1463 (D. Kan. 1991) the city’s spraying of malathion to control insects which resulted in some personal injury actions, was held not to be within the pollution exclusion. The court found the exclusion was intended to limit liability for environmental damage. The court elaborated, giving examples of suits that would occur if the exclusion were given an expansive reading:
If a child at a city pool complains about the chlorine in his or her eyes, the causative factor is a chemical but the city has not polluted the environment. If a fire hydrant sprays water on a passerby, that water may be an “irritant” to the person, but again the municipality responsible for the fire hydrant has not polluted the environment. If a city resident complains that the exhaust fumes from a city vehicle caused him or her breathing difficulty, the injury may be real but the city has not engaged in pollution.
See also Continental Casualty v. Rapid-American, 581 N.Y.S.2d 669 (App. Div. 1992) (Court found that asbestos dust and fibers were not a pollutant within the exclusion; West American Ins. Co. v. Tufco Flooring, 409 S.E.2d 692 (N.C. App. 1991) (Court held that fumes from company’s flooring work that permeated food, were not a pollutant of the type intended to be excluded in the policy); Broadwell Realty v. Fidelity & Casualty, 528 A.2d 76 (N.J. Super. App. Div. 1987) (“The exclusion was designed to decrease claims for losses caused by pollution by providing an incentive to industry to improve its manufacturing and disposal processes”).
A case almost identical to the one before us is U.S. Fidelity & Guaranty Co. v. Armstrong, 479 So.2d 1164 (Ala. 1985), where a pollution exclusion clause was invoked by the insurer. The City of Samson, Alabama, had hired a construction company to replace some existing sewer lines and during the construction raw sewage flowed onto adjacent land. Ms. Armstrong filed suit against the construction company which prompted a declaratory judgment action against the insurance carrier. The Alabama court, relying on its earlier decision in Molton, supra, found the exclusion (which included “waste”) should be strictly construed and was not free of ambiguity. Moreover, the court held this type of clause was intended to cover only industrial pollution and contamination.
We are persuaded by these cases and their rationale and find the pollution exclusion in the case before us is, at least, ambiguous. It is not clear from the language of the policy that the single back-up of a septic tank in a mobile home park is necessarily the kind of damage the clause was intended to exclude. We find appellant’s interpretation that it was intended for industrial polluters to be a plausible one. Further, while the word “waste” is used as one of the examples of pollutants in the policy definition, as mentioned in Molton, supra, under the rule of ejusdem generis, the term “waste” must be considered within the context of the entire list, all of which are pollutants related to industrial waste.
We hold there was an unresolved disputed issue of fact. See Tillotson v. Farmers Insurance Co., 276 Ark. 450, 637 S.W.2d 541 (1982). The initial determination of the existence of an ambiguity rests with the court, and if ambiguity exists, then parol evidence is admissible and the meaning of the ambiguous terms becomes a question for the fact finder. Pizza Hut of America Inc. v. West General Insurance Co., 36 Ark. App. 16, 816 S.W.2d 638 (1991).
The case is reversed and remanded for findings consistent with this opinion.
Corbin, J., dissents.
Donald L. Corbin, Justice, dissenting. | [
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Per Curiam.
Appellant, Raymond Randy Green, by his attorney, has filed for a rule on the clerk.
His attorney, Davis Loftin, admits that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Iyirby, J.,
(after stating the facts). It is insisted that the circuit court was without jurisdiction to hear the cause and that the testimony is not sufficient to support the verdict. It is true that the Supreme 'Court only can license attorneys to practice law in the courts of the State of Arkansas under the statutes now existing, § 598, C. & M. Digest, and amendatory act 32 of 1929. The court held in Wernimont v. State ex rel Bar Association, 101 Ark. 210, 142 S. W. 194, Ann. Cas. 1913D, 1156, that the power to disbar an attorney is inherent in all courts having authority to admit attorneys to the practice of law. The statute, however, now authorizes the circuit court to hear and determine disbarment proceedings and provides for a trial by jury. Sections 610-2-6, C. & M. Digest; State ex rel. v. Huddleston, 173 Ark. 686, 293 S. W. 353 ; Maloney v. State, ante p. 510.
The court also held that defendant in a disbarment' proceeding was entitled to a trial by jury, that such proceedings were informal, and could be conducted in the name of the State by the prosecuting attorney or by any member of the bar required by the court to present the charges, which were to be heard according to the rules of practice adopted by the court, and not contrary to the procedure adopted by statute. It was als-o said that such power1 should be exercised with caution and only for reasons which would render the continuance cuf the attorney in practice “inimical to the just and proper administration of justice or subversive of the integrity and honor of the profession,” and “if an attorney is 'guilty of unprofessional conduct, he i-s subject to suspension or disbarment by the court according to- the degree of the moral turpitude evinced by such unprofessional conduct.”
The statute, § 621, C. & M. Digest, also provides: “That in all cases of conviction, the court shall pronounce judgment of removal or suspension according to the facts found.” In State ex rel. v. Huddleston, supra, the court held that the statute vests the trial court with discretion, either to remove or suspend the attorney, which discretion should not be disturbed on appeal, save for its abuse.
The majority olf the court is of th© opinion that the court 'abused its discretion in pronouncing the judgment of removal — permanent disbarment — of appellant, from the practice of law under the facts of this record. The attorney had but recently been admitted to the practice, was grateful to his brother attorney, in whose office he read law and under whose instruction he was able to pass the bar examination, and in Whose ability he had great confidence, had brought such clients to him for redress of their wrongs as hei came in contact with or applied to him for advice and professional services. The suits were instituted by the experienced attorney, the fees were paid to him and he made division thereof, and also conferred with the witnesses about the pro olf that was necessary and could be produced on the hearing of the cases. There was no testimony tending to show that the appellant was appointed attorney for the nonresident defendant in this case at his own instance, and the positive statement of the witness, whose testimony is relied upon for the conviction, is that he refused to agree to testify that the plaintiff in the divorce suit was a resident of Pulaski County, and that he did not testify to' any such fact, the court not inquiring of him on that point, and would not have done so had such inquiry been made. The affidavit of this witness, procured after the charges had been preferred and the refusal of the court to grant a continuance to appellant, that he might have opportunity to prepare for the trial, in which he had no notice until after the charges were filed, has little weight and is entitled to no consideration at all, having occurred long before the alleged unprofessional conduct and was admissible only to go to the credibility of the testimony of appellant, who denied having made any suggestive statements or suggested to the witness that his testimony should reflect anything but truth in the trial of the divorce case.
The majority is of opinion, therefore, that the court erred in rendering the judgment of disbarment, and should not have rendered judgment of more than a temporary suspension from the practice beyond one year in extent, and on this account the judgment is modified to show such suspension and as modified will ibe affirmed. It is so ordered.
Smith and Humphreys, JJ., dissent from the modification. | [
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John I. Purtle, Justice.
Dena Construction Company, Inc., and J.A. Lamberth, appeal from the verdict and judgment of the trial court finding that neither the driver of the tractor pulling the lowboy trailer nor the operator of the railroad train were negligent. For reversal the appellants argue that: (1) the court erred in granting the railroad’s motion in limine to prohibit the introduction of evidence of subsequent remedial measures; (2) the court erred in submitting to the jury a violation of statute instruction describing a railroad’s obligation to construct a crossing at a specified grade; and (3) the court erred in denying appellant’s instruction concerning the duty of a railroad to construct and maintain safe crossings. We conclude that the trial court did not err and therefore affirm the decision.
On March 6, 1987, Randy King, an employee of J.A. Lamberth, was driving a tractor pulling a lowboy trailer which carried a bulldozer owned by Dena Construction Company. As he attempted to cross the Burlington Northern Railroad tracks on Hasbrook Road, the lowboy became lodged on the tracks. For about 45 minutes the driver of the tractor attempted to dislodge the lowboy from the crossing. He also attempted to notify Burlington Northern that the crossing was blocked by the trailer. However, the appellee never received any warning, and its train struck and destroyed the lowboy trailer and the bulldozer. Dena and Lamberth sued the railroad for damages asserting: (1) negligence in constructing the crossing, (2) failure to establish appropriate notice procedures, and (3) negligent operation of the train. Burlington answered, claiming negligence on the part of King. The jury returned a verdict finding no negligence on the part of anyone.
At the beginning of the trial the court granted appellee’s motion in limine and prohibited the appellants from introducing evidence of a subsequent remedial nature. The stated purpose of the proffer of the evidence was to establish control of the crossing by the railroad, or to impeach a witness. During the course of the trial the appellants made several requests that they be allowed to offer the evidence of subsequent remedial measures, but each time the trial court reaffirmed its original decision.
Proffered exhibits 34 through 37 are photographs of the crossing which reveal that additional asphalt had been added to the highway on each side of the crossing. It was contended that this evidence would demonstrate that the railroad had control of the approaches to this crossing. However, the pictures themselves would not have established whether the city, state or railroad did the remedial work. In such case we cannot say the trial court abused its discretion in refusing to accept these photographs into evidence.
The appellants argue that the testimony of three witnesses would have established that the railroad did the work on the approaches to the Hasbrook crossing. Witness Van Doyle, roadmaster for Burlington Northern, testified that the railroad did not have the responsibility for the crossing except between the ends of the ties. He further stated that even if repairs or corrective measures were needed at the crossing, the railroad could not legally work beyond the ends of the ties. He testified that the authority to do this work was with the state or county. The appellants were not permitted to put in testimony by Van Doyle that the repair work on the asphalt approaches was performed by the railroad after the accident. It was contended that Doyle had testified in a deposition to the contrary. It may have been so, but the deposition is not abstracted.
It was acknowledged by the parties that the approaches to this crossing met the requirements of a state law concerning grades of approaches. It is obvious that someone added the asphalt to the approaches for the purpose of making the crossing safer for such vehicles as the lowboy destroyed in the accident. However, subsequent remedial action is not allowed as proof of negligence.
Rule 407 of the Arkansas Rules of Evidence provides that subsequent measures are not admissible to prove negligence or culpable conduct in connection with a prior event. The rule concludes: “This rule does not require the exclusion of evidence of subsequent measures if offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.” Both parties cite Gist v. Meredith Marine Sales, 272 Ark. 489, 615 S.W.2d 365 (1981), where we applied the rule and stated: “However, the rule does not require the exclusion of subsequent measures if offered for the purpose of proving ownership, control, or feasibility of precautionary measures, if controverted, or for impeachment.”
The appellants first argue that the excluded exhibits and testimony of Van Doyle were offered for the purpose of showing control. The testimony and evidence reveal that Burlington Northern was in control of the railroad and the state in control of the highway. Obviously the point where the two crossed was under the control of both. The court ruled that the crossing was under the joint control of the state and the railroad. Certainly there was no real dispute as to ownership or control in the present case.
The appellants also insist that the evidence was offered to impeach the testimony of Van Doyle. As previously stated, the deposition of Van Doyle was not introduced or proffered. We therefore cannot review what he said in his deposition. Since we are unable to determine from the abstract whether his testimony at the trial contradicted that in the deposition, we cannot hold that the evidence of subsequent repairs was offered for the purpose of impeachment. The appellants have failed to establish that this evidence was offered for some recognized exception to the rule rather than to prove negligence.
The second argument is that the court erred in giving a jury instruction based on a statute that prescribes the railroad’s obligation to construct a crossing at a specified grade. See Arkansas Code Annotated § 23-12-305 (1987). It was stipulated by the parties that the railroad crossing was constructed in accordance with this law. The court nevertheless instructed the jury on the requirements of the statute. The instruction did little more than repeat the stipulation. Since it was not at issue, the statute should not have been given in the instructions. However, the appellants have not demonstrated that it resulted in prejudicial error.
The appellants argue that the statute applies only to crossings in incorporated cities and towns; that the instruction was therefore improper because this crossing was outside the corporate limits. The critical wording of the statute applies the standard to “a railroad across any public road, highway, or street in any incorporated city or town.” Perhaps the wording. is awkward but its obvious meaning is to cover all railroad crossings. This statute refers to any crossing at a “public road,” “highway,” or “street in any incorporated city.”
The statute originally regulated only crossings outside the corporate limits of any city or town. The 1913 amendment imposed upon the railroad the same duty to erect crossings over streets in cities and towns as previously existed with respect to roads and highways. See Kansas City S. Ry. v. City of Mena, 123 Ark. 323, 185 S.W. 290 (1916). The appellants’ contention that the statute applies only inside city limits is not well founded because this law clearly covers crossings outside as well as inside corporate limits.
The third argument is that the court erred in denying appellants’ requested instruction concerning the duty of a railroad to construct and maintain safe crossings. The proffered instruction reads as follows:
A railroad is under a duty properly to construct and maintain crossings over all public highways on the line of its road in such manner that the crossing is safe and convenient to travelers so far as it can do so without interfering with the safe operation of trains.
The proffered instruction seems to require the railroad to make its crossings safe and convenient to all travelers. The instruction probably goes beyond what the law of the state requires. If not, its contents are included in the jury instruction given that both the railroad and the driver of the tractor had a duty “to use ordinary care for the safety of their own property and the property of others.” It was not error for the court to refuse the proffered instruction.
Affirmed! | [
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George Rose Smith, J.
The appellees, W. T. and Aliene Bullard, brought this suit to recover damages resulting from misrepresentation made by the appellant’s agents in connection with the sale of a dwelling house in Little Rock. This appeal is from a judgment entered upon a verdict for $4,463.
The appellant is a corporation engaged in buying and selling real estate. In April of 1948 it owned the house in question and advertised it for sale. For several months the house had been occupied by E. L. Fausett, president of the company. The appellees saw the advertisement and began negotiations that led to their purchasing the property on April 26, for $16,500. Bullard testified that twice during, the negotiations he inquired about conditions underneath the house, as the front of the house was so low that the floor was almost even with the yard. On both occasions Fausett replied that his crew had been under the house doing some work and it was in excellent condition. Mrs. Bullard corroborated her husband’s testimony as to one of these occasions, while Fausett denied having made the statements attributed to him.
After the Bullards took possession they found that the floors vibrated noticeably. In July, Bullard crawled under the house and found a state of serious deterioration and disrepair. These conditions need not be described, as the amount of the verdict is not questioned.
Appellant’s principal contention is that it was entitled to a directed verdict. It is insisted that the theory by which the case was allowed to go to the jury is erroneous in two respects.
First, the appellant contends that the proof does not show that Fausett knew his statements about the house to be untrue. It is argued that since the representations were made in apparent good faith there can be no liability in an action at law for deceit.
There was certainly a time in the early development of the common law when the plaintiff in an action of this kind had to prove a conscious and deliberate intention to deceive on the part of the defendant. But since those early decisions it has long been settled that representations are considered to be fraudulent if made by one who “either knows them to be false, or else, not knowing, asserts them to be true.” Hunt v. Davis, 98 Ark. 44, 135 S. W. 458; Brown v. LeMay, 101 Ark. 95, 141 S. W. 759; Whaley v. Niven, 175 Ark. 839, 1 S. W. 2d 3. The best statement of the reasons underlying the stricter rule has been made by Williston: “The inherent justice of the severer rule of liability which in some cases at least holds a speaker liable for damages for false representations, though his intentions were innocent and his statements honestly intended, is equally clear. However honest his state of mind, he has induced another to act, and damage has been thereby caused. If it be added that the plaintiff had good reason to attribute to the defendant accurate knowledge of what he was talking about, and the
statement related to a matter of business in regard to which action was to be expected, every moral reason exists for bolding tbe defendant liable.” Williston on Contracts (Rev. Ed.), § 1510.
Second, it is earnestly urged that the appellees were not entitled to rely on Fausett’s statements, not only because they had an equally good opportunity to make an inspection but also because Bullard made some inquiries of third persons before he bought the property. The' appellant relies chiefly on this language in Teates v. Pryor, 11 Ark. 58, decided in 1850: “If the means of information are alike accessible to both, so that, with ordinary prudence or vigilance, the parties might respectively rely upon their own judgment, they must be presumed to have done so; or if they have not so informed themselves, must abide the consequences of their own inattention and carelessness.”
This quotation pretty well summarizes the doctrine of caveat emptor, but it has not been applied inflexibly to every situation. There are many circumstances that justify the buyer in acting upon the seller’s statements, even though there is an opportunity to discover their falsity. For instance, in Brown v. LeMay, 101 Ark. 95, 141 S. W. 759, the seller represented that a tract contained 35 acres when in fact there were only 30.9. Of course the buyer could have ascertained the truth by having the land surveyed, as she did later on. Nevertheless we upheld a judgment for damages, it being shown that the seller knew that his statement was being relied upon. In Myers v. Martin, 168 Ark. 1028, 272 S. W. 856, it was held that the buyer may credit the statements of a seller who has peculiar knowledge of the subject-matter of the sale.
In this case Fausett was engaged in the business of buying and selling houses. 'He had been living in this house for a number of months. He said that his crew had been under the house and it was in excellent condition. In view of these circumstances the trial court correctly refused to declare as a matter of law that the Bullards were not entitled to trust Fausett’s assurances. “The recipient in a business transaction of a fraudulent misrepresentation of fact is justified in relying on its truth, although he might have ascertained the falsity of the representation had he made an investigation. . . . The rule . . . applies not only where an investigation would involve an expenditure of effort and money out of proportion to the magnitude of the transaction but also where it could be made without any considerable trouble or expense.” Best., Torts, § 540.
Nor are the appellees precluded from recovery merely because Bullard made some inquiries about the house. The court instructed the jury that the appellees could not recover if they relied upon information obtained from other sources and not upon Fausett’s representations. This theory of the case was correct. “It is not enough to relieve the maker of a fraudulent representation from liability that the person-to whom it is made makes an investigation of its truth. It is necessary that the other shall rely upon his investigation and shall not rely upon the false statement.” Best., Torts, § 547;
Various errors are assigned in the giving and refusal of instructions, but they all relate to the matters already discussed. The judgment is affirmed. | [
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Leflar, J.
Appellants filed a Workmen’s Compensation claim against appellee Direks Lumber & Coal Co. (hereinafter called Dierks) and one Dan Durham on account of the death of their husband and father, Chester 0. Brothers, who was killed when a log rolled off a truck onto him while he was helping unload logs being hauled from the Ouachita National Forest to a Dierks lumber mill. The Workmen’s Compensation Commission denied the claim against Dierks, on the ground that decedent Brothers was not an employee of Dierks but was employed only by Durham, who was held to be an independent contractor. The claim was allowed against Durham only. It is shown that Durham is financially worthless, and without insurance, so that he cannot pay the claim allowed. He did not appeal. The dependents of the decedent appealed against Dierks, and the Circuit Court affirmed the order of the Workmen’s Compensation Commission. This appeal is from the Circuit Court judgment.
Appellant relies upon two separate grounds for reversal, one ground involving primarily the facts and the other primarily a question of law. Under the fact heading, the contention is that Durham was not an independent contractor at all, but merely a supervisory employee of Dierks, hired to handle the job of hauling logs from the forest to the mill and to superintend the labors of other employees, like the decedent Brothers, who were hired to work on the same job. Considerable evidence was offered, though most of it was excluded, to the effect that Dierks’ regular system was one of employing foremen under the guise of independent contractors so as to achieve certain advantages which were deemed to inhere in the absence of an employer-employee relationship between Dierks and the loggers. This evidence if admitted would apparently have been supported by evidence that a similarly disguised relationship was present in the instant case.
We find it unnecessary to pass upon this fact question, or upon the admissibility of the proffered evidence, because it appears that the other ground of appeal, primarily one of law, requires reversal in any event. This ground assumes that Durham was an independent contractor, as contended by Dierks. It has to do with the interpretation oí § 6 of the 1939 Workmen’s Compensation Act (Ark. Stats., § 81-1306).
Section 6 provides that “a contractor in the performance of whose contract one or more persons are employed, . . . by a subcontractor, who subcontracts all or any part of such contract shall be liable for and shall pay compensation to any employee injured whose injury arises out of and in the course of such employment, unless the subcontractor primarily liable therefor has secured compensation for such employee as provided in this act. ’ ’ Under this section, if a subcontractor does not carry compensation insurance (or self-insurance) on his employees, they are deemed “statutory employees” of the main contractor for purposes of the Workmen’s Compensation Act.
■ Dan Durham did not have insurance of any kind on Brothers or the other men who were helping him haul logs for Dierks. The evidence disclosed that Dierks had maintained Compensation insurance for Durham and his crew, and apparently for other similar crews, until about a month before Chester Brothers was killed, but the carrier insurance company had then canceled the policy, apparently because the risk was so great. Durham testified that he thought he and the crew were still covered bjr insurance when Brothers was killed, but it is now clear that they were not.
The question is presented whether Dierks was a “contractor” and Durham a “subcontractor” within the meaning of § 6. Appellee Dierks’ position is that it was merely a purchaser of timber, and not a “contractor” in the statutory sense.
Dierks was removing merchantable timber from the Ouachita National Forest under a contract with the Forest Service of the Department of Agriculture of the United States. The contract was quite lengthy, covering some fifteen typed, printed and mimeographed pages. The central feature of the contract was that Dierks became the purchaser of certain timber, of which the Forest Service was the seller. But the contract was much more than a mere hill of sale. It set out in great detail the manner in which Dierks was to cut and remove the timber. An obvious objective of the contract, along with the sale of merchantable timber, was the doing of work by Dierks -which would help to preserve and maintain the National Forest in accordance with good forestry practices.
The contract by its terms was unassignable by Dierks. The manner of cutting individual trees was specified, both as to height of stumps, the diameter at which tops were to be cut off, and what trees were to be cut. Refuse and debris were to be disposed of by Dierks so as not to pollute streams or develop unsanitary conditions in the forest, and “slash” was to be distributed in a designated and detailed manner. The maintenance of fires and activities likely to cause fire were regulated in minute detail, and Dierks was required to keep all its employees available to the Forest Service for fire-fighting duty at all times. The contract required that fifty percent of the laborers used in cutting and removing the timber be residents of Scott, Montgomery and Yell counties. The manner in which Dierks’ work was to be done in reference to young timber left standing was set out. Telephone lines, ditches and fences were to be protected by Dierks, or repaired if they should be damaged. Dierks was required to clean up all loading spaces by piling and burning debris, as directed by the Forest Officer, whether the debris was produced by Dierks or by others. Roads built by Dierks in the Forest area, for hauling out timber, -were to be constructed according to defined standards and specifications. Designated roads were to be repaired by Dierks. The manner of road maintenance and repair was specified, and the road maintenance obligation was imposed on Dierks regardless of whether the hauling be done “by the purchaser (Dierks) or by other persons or concerns as sub-contractors or customers of the purchaser.” Numerous other clauses in the contract imposed still other duties on Dierks. The various conditions in the contract were inter-dependent, and the Forest Officer was authorized to suspend all operations under the contract, including the removal of scaled timber, in event of non-compliance by Dierks with any of the terms of the contract.
This Court has had occasion once before to deal with a Forest Service timber sale contract like this, in Cook, Commr. of Revenues, v. Wilson, 208 Ark. 459, 187 S. W. 2d 7. The issue there was as to the collectibility of state severance taxes, a matter not relevant in the present case, but it is worthy of note that we then emphasized the detailed performances due under the contract, as distinguished from the purchase and sale feature merely. And on appeal to the United States Supreme Court (Wilson v. Cook, 327 U. S. 474, 66 S. Ct. 663, 90 L. Ed. 793) the problem was stated in terms of “a contractor who had contracted with the United States for the purchase and severance of timber on national forest reserves,” and Chief Justice StoNe proceeded to discuss the transaction in terms of “the contracts of severance and purchase” and not merely i-n terms of a sale.
The only American case substantially similar to the instant case, that we have been able to discover, is Nylund v. Thornberg, 209 Minn. 79, 295 N. W. 411. The Minnesota court there held a purchaser of timber from the State to be liable for workmen’s compensation to an employee of a subcontractor, under a statute like our § 6. The employee was injured while cutting and removing timber from State lands under direction of his subcontractor employer. The defendant purchaser’s contract with the State for severance, removal and purchase of timber was quite similar to Dierks’ contract with the Forest Service, the terms of a relevant Minnesota statute having been incorporated into the contract. The Minnesota court, speaking of the statutory contract, said:
“. . . the status of the holder of a permit issued thereunder is much that of a general contractor in cutting and removing the merchantable timber from the state’s land. True, it speaks of the sale of the timber, but such sale results from a compliance with the numerous terms and conditions prescribed bj the statutes mentioned. (The Court then reviewed some of these terms and conditions, several of which were almost identical ■with those in the Dierks contract.) It is apparent that the state has a vital interest in having the timber properly cut and removed without harm to growing trees on the land not included in the permit and to have the tops, branches or slashings properly burned, thus protecting its lands and its inhabitants against forest fires. Taking the whole situation in view, we think the holder of a valid timber permit ... is a general contractor of the state in cutting and removing the timber, and the one to whom he lets the actual work becomes his subcontractor, within the meaning of Mason’s Minn. St. 1940 Supp. § 4290, subd. 4 (equivalent to § 6 of the Arkansas Workmen’s Compensation Act.) Hence relator becomes liable for compensation to respondent accidentally injured, because (the subcontractor) failed to carry compensation insurance.”
Arkansas has in earlier cases held that § 6 of the Workmen’s Compensation Act applied to employees of a subcontractor where the main contractor’s obligations under a contract for purchase and sale of timber products were considerably fewer than under the Dierks-Forest Service contract. Hobbs-Western Co. v. Craig, 209 Ark. 630, 192 S. W. 2d 116; Hobbs-Western Co. v. Morris, 212 Ark. 105, 204 S. W. 2d 889. Though both these cases involved the point, the first was the one that actually interpreted § 6.
In Hobbs-Western Co. v. Craig, the decedent Craig was employed by one Lea, held to be a subcontractor under Hobbs-Western Co. within the meaning of § 6. The principal contract, comparable to the Dierks-Forest Service contract in the present case, was between Hobbs-Western Co. and the Bock Island Railroad. This principal contract provided that Hobbs-Western Co. should sell and the Bock Island Railroad should buy from Hobbs-Western Co. all the railroad ties the Railroad should require for a given five-year period. The contract set the price for the ties, and specified their dimensions, but it did not call for them to be cut from any particular lands, nor by any particular persons, nor in any particular detailed manner. This Court held that the contract be tween Hobbs-Western Co. and the Rock Island Railroad made Hobbs-Western Co. a “contractor” within the meaning of § 6, and that Lea was a “subcontractor” under the section since he was cutting ties under contract with Hobbs-Western Co. to enable it to supply the requirements of the principal contract with the Rock Island Railroad. Because the “subcontractor” Lea was uninsured, recovery was allowed on Craig’s behalf against the “contractor” Hobbs-Western Co.
Both the Dierks-Forest Service contract and the Hobbs-Western-Rock Island contract were primarily purchase and sale contracts. The only factual difference between them, in terms of § 6, is that Dierks was the buyer under its contract whereas Hobbs-Western Co.was the seller. This is an irrelevant difference as far as § 6 is concerned. As a difference, it does not bear upon the question whether the parties to the contracts were ‘ ‘ contractors. ’ ’
If ITobbs-Western Co. was a “contractor” within the meaning of § 6 (and we have so held) there is no escape from the conclusion that Dierks was likewise a “contractor” under the same section. The contractual duties imposed upon Dierks under its contract, by way of work to be done and services to be performed as distinguished from the mere sale of goods, were far more substantial than those imposed upon Hobbs-Western Co. under its contract. We do not hold that a mere contract for the sale of goods makes either the buyer or seller, or both, a “contractor” within the meaning of § 6, but we are committed to the view that when the contract to sell is accompanied by an undertaking by either party to render substantial services in connection with the goods sold, that party is a “contractor” within the meaning of the section.
Once it is determined that. Dierks was a “contractor” under its Forest Service contract, it follows auto-, matically that Dan Durham was a ‘ ‘ subcontractor, ’ ’ since he was performing under contract with Dierks a part of the work — removal of the merchantable timber — called for by the Dierks-Forest Service contract. The fact that Durham was not cutting timber, but only removing it, is unimportant; a single subcontractor is not expected to do all the work which the principal contractor has agreed to do. What Durham was doing was an essential part of the interdependent whole called for by- the Dierks-Forest Service contract. And Durham was uninsured.
One further argument is urged by appellee Dierks. . This is that § 6 of the Arkansas Workmen’s Compensation Act is unconstitutional, regardless of what interpretation we give it.
This argument is based upon the wording of Amendment 26, the Workmen’s Compensation Amendment to the Arkansas Constitution. Prior to the adoption of Amendment 26 in 1938, the old Art. Y, § 32 of our Constitution provided that “No act of the General Assembly shall limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property.” This prevented the enactment of a general workmen’s compensation law because such a law would put a limit on the pre-existent common law liabilities of employers to their employees for personal injuries. To cure this, amendment 26 was worded as follows:
“The General Assembly shall have power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payment shall be made. Tt shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing payment of same. Provided, that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; and in case of death from such injuries the right of action shall survive, and the General Assembly shall prescribe for whose benefit such action shall be prosecuted.”
Appellee’s argument is that the exception to the old law, achieved by Amendment 26, is limited to “the amount of compensation to be paid by employers for injuries to or death of (their own) employees,” and that all other cases fall within the retained proviso, “that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property.”
For one thing, we deem it safe to say that the framers of Amendment 26 had in mind the workmen’s compensation laws of a majority of the other states, already in force in 1938. Most of these laws included the concept of the statutory employee, as it now appears in Arkansas in our § 6, as a part of their provisions for “compensation to be paid by employers for injuries to or death of employees.” See 2 Schneider, Workmen’s Compensation (perm. Ed., 1942) 175; Annots., 58 A. L. R. 872, 105 A. L. R. 580. The framers of Amendment 26 intended to make it possible for Arkansas to enact workmen’s compensation laws similar to those which had appealed to the good legislative judgment of other states. It cannot be assumed that they did not intend to adopt here the same concepts of the words “employer” and “employee” as were already in force in the same field in other states.
Our decisions in Hobbs-Western Co. v. Craig, 209 Ark. 630, 192 S. W. 2d 116, and Hobbs-Western Co. v. Morris, 212 Ark. 105, 204 S. W. 2d 889, already discussed herein, did not it is true pass expressly upon the constitutionality of § 6, but they did take its constitutionality for granted, and enforced the section on the assumption that it was constitutional.
The only relevant limitation which Amendment 26 imposes upon free legislative action is that “no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property.” It does not deny the legislature’s right to create new canses of action for injury or death where none before existed. Before there can be a law limiting recoveries for injury or death, there would have to be. some existent right to recover for such wrongs. Prior to the enactment of §'6, the employees of independent con-tractors save in extraordinary situations had no rights against the main contractor.' The claimants in the present case would apart from § 6 have had no rights against Dierks, and § 6 in giving them a right against Dierks therefore did not limit any amount otherwise recoverable by them. § 6 merely gave them a right; it did not take any right away from them. Our conclusion is that § 6 is a constitutional enactment under the authority conferred by Amendment 26.
The judgment of the Circuit Court is reversed, with instructions to remand the cause to the Commission for the entry of an award in accordance herewith.
In order to make certain that this issue was clearly presented to the Court, we have re-examined the briefs and the transcript, including the principal contract between the Rock Island Railroad and Hobbs-Western Co., filed in the case of Hobbs-Western Co. v. Craig, 209 Ark. 630, 192 S. W. 2d 116, and we find that the question whether Hobbs-Western Co. was a “contractor” within the meaning of § 6 was argued as a principal issue in the case. Re-examination of the briefs and transcripts filed in Hobbs-Western Co. v. Morris, 212 Ark. 105, 204 S. W. 2d 889, shows that the issue was again presented there. | [
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Minor W. Millwee, Justice.
On July 26, 1949, a collision occurred on the streets of El Dorado, Arkansas, between automobiles owned by plaintiff, James F. Watson, and defendant, E. Y. White, respectively. Plaintiff brought this action in the Municipal Court of El Dorado against defendant for damages to his car in the sum of $100 allegedly arising out of the collision. Defendant filed an answer and cross-complaint seeking damages in the sum of $100 to his car as a result of the collision.
The judgment of the municipal court, after stating the appearance of the parties and their counsel, recites: “Whereupon it was suggested by counsel for the Defendant that since testimony had been heard by the Court in a criminal proceeding, prior to this date, that the Court enter a judgment based upon the facts as submitted in the criminal hearing, which was done.” Then follows judgment in favor of plaintiff for $100 with exceptions and an appeal prayed by defendant and granted by the court. Affidavit and bond for appeal to circuit court were duly filed by defendant.
Prior to trial in circuit court, plaintiff filed a motion to dismiss the appeal on the ground that the municipal judgment was by confession and defendant could not, therefore, appeal from it. At a hearing on said motion counsel for plaintiff testified that after the witnesses were sworn to try the case in municipal court, counsel for defendant inquired whether the court could enter judgment for the plaintiff and show an appeal therefrom by defendant; that the court replied in the affirmative and directed plaintiff’s counsel to “write np a judgment” accordingly; and that the judgment was entered without ascertaining whether counsel for plaintiff was willing to submit the case on the testimony adduced at the previous trial.
In a colloquy ensuing- between counsel and the court counsel for plaintiff stated: “"When a judge writes up a judgment reciting the facts upon which it is rendered, I don’t see how this Court can do anything about it, except to accept that judgment on its face, and my Motion to Dismiss is directed to that judgment.” The trial court refused to construe the municipal court judgment as one by confession, or consent, and overruled the motion to dismiss. Plaintiff assigns this as reversible error and relies on the case of Cave v. Smith, 101 Ark. 348, 142 S. W. 508. In that case a justice of the peace judgment recited: “And the defendant acknowledged service of the summons, and without further proceedings the defendant asked the court to enter judgment against him for said sum sued on $13.50, and then filed affidavit and bond for an appeal to the circuit court,” etc. The' court there held that defendant confessed judgment when he asked the court to enter judgment against him after entering his appearance without interposing any defense whatever. The facts were distinguished from those in the earlier case of Walker v. Willis, 5 Ark. 166, which held that there was not a confession of judgment where the defendant agreed that judgment might be rendered against him in justice court after a demurrer to his plea of want of consideration was sustained and his amended plea stricken by the justice of the peace.
In the later case of The McCall Co. v. Smith, 117 Ark. 118, 173 S. W. 845, a justice of the peace judgment showed that the jury returned a verdict for defendant “at the suggestion of plaintiff’s attorney” after evidence offered by plaintiff (appellant) was held inadmissible by the justice of the peace. The court said: “Taking the recitals of the record altogether it cannot be said that they show that the judgment entered by the justice of the peace was on confession, or by the consent, of the appel lant. The word suggestion is neither synonymous with confession nor consent, and before a judgment should be treated as one rendered on confession or consent the recitals showing such confession or consent should be clear and unequivocal. Such is not the case here.”
In the case at bar defendant had filed an answer and cross-complaint in the municipal court. The record reflects that the court had previously tried a criminal charge against the defendant arising out of the same collision. The suggestion by counsel for defendant that the court enter judgment based upon the facts developed in the previous trial, in order to expedite the proceedings, did not amount to a clear and unequivocal confession on his part that plaintiff was entitled to a judgment against him. Plaintiff says he did not agree to the action of the' court in rendering judgment on the proof previously taken, but he was present with his counsel and made no objection to the procedure which resulted in a judgment in his favor. The trial court correctly overruled the motion to dismiss.
After the motion to dismiss was overruled, the case proceeded to trial. Plaintiff introduced the testimony of his wife, who was driving plaintiff’s automobile at the time of the collision, and the manager of a store and garage where plaintiff’s car was repaired. When plaintiff then announced that he rested his case the trial court stated: “Mr. Whetstone, before closing your case I would like to call your attention to the fact that in making proof of damage to cars — I don’t know whether it is proper for me to put it in here — but I think in fairness to everybody concerned, at most you are inclined to rely on an estimate of the garage mechanic on what it cost to make repairs to the car. I have called this to the attention of the attorneys in cases of this kind, that that is not the rule in arriving at the measure of damages. The rule, strictly stated, is the difference in . the value of the vehicle immediately before the accident, and the value immediately afterward. You have approached it in this case on the proof of what it cost to repair it. That is a circumstance that may be considered, but I don’t think that is sufficient, standing alone. I call your attention to this because I don’t want anybody to get slipped up on it. ’ ’
Plaintiff insists that the trial court erred in refusing to declare a mistrial pn account of the court’s remarks. In view of the nature of the testimony offered by plaintiff on the measure of damages, which will be discussed later, we cannot agree with plaintiff’s contention that the trial court’s statement amounted to a comment on the weight of the evidence or “a belittlement of appellant’s case and the ability of his counsel.” On the contrary, we hold that the remarks of the court and the colloquy which followed show that the trial judge was endeavoring to be helpful to both parties in presenting proper testimony on the measure of damages, and that he was trying to prevent the happening of the very thing that did happen when plaintiff refused to offer further testimony. After denial of plaintiff’s motion for a mistrial, the trial court offered to permit plaintiff to submit further testimony on the measure of damages. This offer was refused by plaintiff and a request for a directed verdict in defendant’s favor on plaintiff’s complaint was granted, after defendant moved to dismiss his cross-complaint.
It is nest contended that the trial court erred in directing a verdict for defendant on account of the insufficiency of the proof as to the measure of damages. In this connection plaintiff’s wife testified to the damaged condition of the 1941 model car involved in the collision. She then testified: “Q. Do you know how much it cost to have it repaired? A. No, sir. It was over — it was $100.40; I saw all of the bills; I didn’t look at all of the bills; the grocery bill and that were paid at the same time. ’ ’
The manager of the store and garage where the repairs were made testified that he appraised the damage to the car and made an estimate of the cost oh repair, but no estimate was introduced in evidence. He stated that the front fender was replaced and the radiator was either repaired or replaced; that they straightened or attempted to straighten the frame and lined up the ‘ ‘ running gear. ’ ’ He then testified: £ £ Q. l)o you know how much your bill ran for work and parts on the car? A. It was a little over $100; I don’t know exactly. The Watsons were good customers and we made them a good priceit ran over $100, though.” On cross-examination he testified: <£Q. And you run the store and garage at Junction City for Mr. Mayfield? A. Yes, sir; more or less the manager. Q. And you personally inspected the car? A. Yes, sir; I did, on this particular job. Q. You don’t know where, or when, or how that damage occurred to the car, do you? A. No, sir; I don’t. Q. You don’t know anything about that? A. No, sir; nothing pertaining to the way it happened. I have not heard it discussed one way or the other. Q. And you don’t know when it happened? A. I remember it was in July. Q. You don’t know whether all of the repairs you did on the car was caused by the collision up here on Hawthorne and Raymond streets or not, do you? A. No, sir; I wouldn’t have any way of knowing how it was done. They are regular customers of ours; but I didn’t notice any of these damaged parts that we repaired previous to that time. Q. You didn’t look for them? A. No, sir; I didn’t look for it.”
Plaintiff asserts that this testimony was sufficient to take the case to the jury under the cases of Kane v. Carper-Dover Mercantile Co., 206 Ark. 674, 177 S. W. 2d 41, and Golenternek v. Kurth, 213 Ark. 643, 212 S. W. 2d 14. In these cases we reaffirmed the oft repeated rule that the measure of property damages arising out of an automobile collision is the difference between the market value of the property immediately before the injury and its market value immediately after the injury. The effect of our holdings in the cited cases is that proof of repairs is sufficient if, when considered with the other evidence adduced, it is shown to fairly represent the difference in market value before and after the injury. No repair bills or estimates of the cost of repairs were introduced in the instant case. It is not shown whether certain parts were replaced or merely repaired and the amount of the charges is indefinite. The installation of new parts in a 1941 model automobile may enhance the value a great deal and thereby materially affect the difference in market value before and after the injury. Under the testimony adduced here, we cannot say that the trial court erred in directing a verdict for defendant.
Plaintiff also contends that in any event he was entitled to nominal damages and the court, therefore, erred in instructing a verdict for defendant. The issue of nominal damages was not raised at the trial and there is no assignment of error in the motion for new trial on this ground. In Cathey v. Arkansas Power & Light Co., 193 Ark. 92, 97 S. W. 2d 624, upon which plaintiff relies, this court held that a suit for condemnation of land for highway purposes came within that class of cases in which the damages cannot be adequately and definitely estimated and applied the rule of nominal damages. The instant case does not deal with damages of the type involved in the Cathey case and cases there cited.
Plaintiff made timely objection to the action of the trial court in dismissing the cross-complaint without prejudice when defendant moved for a non-suit thereon. Under the principles announced in Fowlkes v. Central Supply Co., 187 Ark. 201, 58 S. W. 2d 922, the taking of a non-suit in the circumstances here presented is tantamount to a dismissal of the cross-complaint with prejudice. The judgment of the circuit court will be modified to show a dismissal of defendant’s cross-complaint with prejudice. In all other respects the judgment is affirmed. | [
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Smiti-i, J.
This is a companion ease to that of General Motors Acceptance Corporation v. Jerry, 181 Ark. 771, 27 S. W. (2d) 997. The litigation in each case arose over the attempt to collect the balance of purchase money due upon the sale of a Delco; lighting plant, and the con-tract of sale in the two cases is identical. The undisputed testimony in each case was to the effect that the subject-matter' of the sale was a definitely known article of commerce, designed to generate electricity for lighting purposes, and that each plant was a separate and complete unit in itself. From fifteen to eighteen such plants had been sold and installed in Union County alone, the county in which both cases originated.
The undisputed testimony in the instant case shows that one of the lighting plants was installed at the home of appellee Whatley, and that with some minor adjustments it gave fairly satisfactory service for a period of from six to eight months, so that there can be, and is, no question that it was adapted to the purpose for which it was sold, that of generating electric lights.
The contract of sale containing the following and no other warranty: “It is understood that the Delcolight Company of Dayton, Ohio, guarantees said Delcolight products against defective material or workmanship for one year from the date of delivery, except the starting battery on the Model 775 or 750- Delco light plant, which battery is guaranteed for 90 days.” The plant sold appellee did not have a starting battery of either Model 775 or 750, but was Model 758, so .that this exception from the general warranty lasting only ninety days did not apply to this sale.
It was therefore proper to submit to the jury the question whether there had been a breach of this war ranty, although the article sold 'was a definitely known article of commerce upon the market. But in the submission of this question one of the instructions was modified by adding thereto this qualification: ‘ ‘ * * * or that it was not a definitely known article of commerce upon the market and was not reasonably fit for the purpose for which it was intended.”
Injecting this question into the case was error, for the reason that under the undisputed evidence the light plant was a definitely known article of commerce upon the market, and was reasonably fit for the purpose for which it was intended. This modification was objected to, and is erroneous, as it is error to give an instruction which permits the jury to make a finding which is unsupported by any evidence. Sherrin v. Coffman, 113 Ark. 8, 219 S. W. 318 ; Bissell v. Katter, 141 Ark. 467, 217 S. W. 779 ; Ozark Fruit Growers’ Assn. v. Tetrick, 130 Ark. 165, 197 S. W. 30 ; Athletic Mining Co. v. Sharp, 135 Ark. 330, 205 S. W. 695.
The judgment will therefore be reversed, and the cause will be remanded with directions to submit only the question of the breach of the written warranty. | [
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Frank Holt, Justice.
Appellee was an employee of appellant when he suffered an injury to the thunb of his left hand. The commission awarded temporary total disability benefits and the circuit court affirmed. On appeal appellant asserts for reversal that the facts found by the commission do not support the award. The issue presented is stipulated by the parties as to “[W]hether or not a student who is injured while in fulltime employment, and who subsequently returns to school as he intended at the time of his employment, and who is still in his healing period, is entitled to temporary total disability benefits during the school term.” The injury is admittedly compensable.
Appellee worked for appellant during the summer months to earn wages for the announced purpose of attending the University of Arkansas at the beginning of the 1970 fall semester. As planned, he attended the University that academic year, during which time the appellant suspended payments of temporary total disability benefits for loss of wages. The appellee was a fulltime student and neither sought nor performed any employment during the school year. He made numerous trips to Little Rock for medical treatments for which he was compensated by appellant. At the beginning of the summer of 1971, the healing period not having ended, the appellant renewed payment of disability benefits for wage losses. Appellant only controverts temporary total disability payments to the appellee during the time he is a student. It was agreed that appellant is liable for permanent partial disability benefits whenever that can be determined. Therefore, the sole issue presented for our determination concerns the extent to which the appellee is entitled to temporary total disability compensation. This issue is one of first impression.
It is the appellee’s position that his eligibility for temporary total disability benefits is solely a medical fact question. It is agreed that the healing period has not ended and the medical testimony is to that effect. Appellant, to the contrary, takes the position that temporary total disability benefits are intended for actual wage losses. To resolve this issue we first resort to the applicable statutory provisions of our Workmen’s Compensation Act. Ark. Stat. Ann. § 81-1302 (e) (Repl. 1960) provides:
‘Disability’ means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the inj ury.
See also § 81-1313 (c) which provides that an injured employee who sustains a scheduled permanent injury shall receive compensation during the healing period.
In construing our Workmen’s Compensation Act, it is well settled that we recognize it was enacted for beneficent and humane purposes and in giving effect to these purposes, we construe the statutory provisions liberally in favor of the claimant, resolving doubtful cases in favor of the claimant. This rule of statutory construction was recently recognized in Hartz Seed Co. v. Thomas, 253 Ark. 176, 485 S.W. 2d 200 (1972), citing International Paper Co. v. Tidwell, 250 Ark. 623, 466 S.W. 2d 488 (1971); and to the same effect is Cummings v. United Motor Exchange, 236 Ark. 735, 468 S.W. 2d 82 (1963). Had the drafters of our Workmen’s Compensation Act intended an exemption, as claimed in the case at bar, appropriate language could have easily removed any doubt by so stating. The Act does not prohibit the controverted payment.
In McKenzie v. Campbell & Dann Mfg. Co., 209 Tenn. 475, 354 S.W. 2d 440 (1962), the Tennessee court held that temporary total disability benefits are payable without any interruption from the time of the injury to the time at which die degree of permanent disability is ascertainable. Cf. Khachgdoorian’s Case, 329 Mass. 625, 110 N.E. 2d 115 (1963) and Underwood v. Terminal-Frouge Builders, 128 So. 2d 605 (Fla. 1961). In Underwood we think it was aptly stated:
Neither do we think it should be held that because a claimant, during a period of disability, becomes a full-time student he should be precluded from receiving compensation, if he is in fact disabled. Such a rule would not only be unsupported by any provision of Workmen’s Compensation Law, it would, we believe, also violate the spirit and intent of the Workmen’s Compensation Law by penalizing a claimant for attempting through the furtherance of his education to limit the effect of his disability.
In the case at bar, appellant persuasively presents the argument that it is unjust to require payment during the school year based upon temporary total disability; however, when we construe the applicable portions of the Workmen’s Compensation Act, as previously discussed, in accordance with the beneficent purpose of the act and resolve all doubts in favor of the claimant, as we must do, we are of the view the commission was correct.
Affirmed. | [
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Butler, J.
Action in tbe circuit court of Hempstead County by appellee, J. Gilbert, against tbe appellant, Hempstead County, for damages occasioned by construction of highway across a parcel of land owned by appellee. Trial before a jury and verdict and judgment for $600. Appeal prosecuted by Hempstead County to this court.
The testimony reg*arding* the damag*es to the property involved is sufficient to sustain the verdict and judgment, and about which there is but little conflict. The appellant, however, contends for a reversal of the case because of the court’s failure and refusal to grant prayers for instructions numbered 1, 2, 3, 4.and 5 requested by it. These instructions, except instruction No. 5, are based on the theory that there was evidence to show that the property damaged had been acquired by the appellee Gilbert after its appropriation as a right-of-way by the highway commission and after notice of such appropriation had been brought home to him, and that he was barred from prosecuting his claim for damages because of his failure to file a claim for such within twelve months after notice of the condemnation proceeding.
The appellee, Gilbert, purchased the land in controvery about the first of September, 1928, from Ben Ed miaston and wife and W. B. Hederick and wife, the deed being executed about the 10th of that month, and filed his claim for damages May 31,1929. At the time of his purchase there were certain markers placed across the land which, he was informed by one of his grantors, were placed by surveyors as the proposed route for a highway which was to be built across the property. The contention of the appellant county is that this was notice to Gilbert that an appropriation of this right-of-way had been made, and that the order of the county court appropriating and condemning the right-of-way had been made on March 17,1928, prior to the time of Gilbert’s purchase, and that his claim for damages was not filed within twelve months after the making of such order, and that, therefore, his claim was barred under that provision of our statutes, (C. & M. Dig., § 5249) as construed in the case of Greene County v. Hayden, 175 Ark. 1067, 1 S. W. (2d) 803, providing that claims for damages must be filed with the county court within twelve months from the time of the making of the order by the county court and after notice of same to the landowner. The only evidence tending to establish the time at ivhich the order of condemnation was made was the testimony of the county clerk and the records of the county court which were introduced in evidence by him. The order of condemnation, in its opening paragraph contains the following recital: “On this the 17th day of May, 1928, is presented to this court the petition of the State highway commissioner of the State of Arkansas et cetera.” The petition, however, upon which the order aforesaid was based was not filed with the clerk of the court until September 28, 1928, and the clerk testified that it did not come into his hands or into his office before that date. March 17,1928, was a day of a regular term of the county court, and the records and testimony of the clerk are to the effect that there was no docket entry or any other record in that court disclosing that any order regarding the highway in question or any other highway was made or entered at that term. The original petition hearing the file mark, “September 28, 1928,” was introduced in evidence, and upon it was indorsed this notation: “April 15, 1929, Granted — John L. Wilson, Judge.” Upon that date the order first mentioned was entered of record.
From all of this we conclude that the appellant errs in its contention that the order was made on March 17, 1928, for all of the evidence, as we see it, refutes that position and clearly indicates that the petition and order were prepared contemporaneously — perhaps, on March 17, 1928 — but, for some reason undisclosed, the petition was not filed until the .September following, and then not acted upon or the order made until the date that it was entered on the record of the court, namely, April 15, 1929, and the date appearing in the order merely occurred from ' entering the order as first written without changing the date of its recital to the true date when the prayer of the petition was granted and the order made. These being the facts in the case, the whole fabric of appellant’s contention falls, for from this it is certain that appellee Gilbert had purchased and was the owner of the land in controversy before the date of the order condemning the right-of-way, and that his claim for damages was filed within twelve months from the date of such order and within the time prescribed by law. The court therefore correctly refused instructions Nos. 1, 2, 3 and 4 requested by the appellant.
During* the progress of the trial the appellant maintains that it offered to introduce in evidence, as tending to establish as a circumstance to be considered by the jury in arriving at the value of the property, the assessed valuation of the land for the year 1928, which testimony was overruled by the court. This action of the court is assigned as error. If, indeed, the rule laid down by this court in the case of Texas & St. Louis Ry. Co. v. Eddy, 42 Ark. 527, and followed in a number of our decisions that a tax assessment of land is not admissible as evidence of its value in assessing damages for right-of-way has been changed by act No. 205 of the Acts of the General Assembly of 1929, as contended by appellant (a question which we deem it now unnecessary to decide), the trial court committed no error, because as a matter of fact no testimony showing the assessed valuation of the land herein involved was offered. The clerk of the county court was called and brought with him the real estate tax book for the year 1928 showing the last assessment of land made in the county. He was asked to turn to § 8, township 9 south, range 26, and stated in answer to a question, that he found no assessment at all against either W. B. Hederick or J. Gilbert; that he did find an assessment of a parcel of land in that section in .the name of Kendrick and Edminson, the description of the land assessed ‘being “Part of SE SE, 1 acre.” He was then asked to state the value as shown by the assessment, to which objection was made on the ground that there was no showing that the assessment was made by the plaintiff in the case or that he owned the land at the time. The objection was sustained.
Without passing on the question of the correctness of the ruling for the reasons given by the learned trial judge, we think the ruling proper because the land involved in this case mentioned in the claim for damages, as shown by deed to Gilbert which was introduced in evidence, was a parcel of land described by metes and bounds and lying in the northeast of southeast of section 8, township 9 south, range 26 west, an entirely different forty to that of the parcel, the assessed value of which was offered to be proved. Por, as we have seen, that parcel lay in the southeast of the southeast of section 8. For this reason also instruction No. 5 asked by the appellant was properly refused, it seeking to submit for the jury’s consideration in determining the market value of the property the assessed value of the land.
The case was submitted to the jury in the afternoon and the jury, after being out for about an hour, returned into court and announced that it had failed to agree. The jury was allowed to separate with directions to report at 8:15 the following morning. At 8:20 on the following morning, the court being open and the jury present, the court admonished the jury as follows: “Now, gentlemen, I will state to you it is quite important, it seems to me, that this case ought to be settled. It would take time and expense to try it again, and I would like for you gentlemen to agree, if you can get together conscientiously, and return a verdict in the case.” The judge then proceeded to instruct the jury that a verdict might be returned upon the agreement of nine jurors, stating to them in effect that he did not usually inform the jury that nine might return a verdict except where it appeared that twelve could not get together, and continuing, he said: “It is always, of course, advisable that every juror participate in the deliberations, and that all agree if they can, but if they find they cannot get together, why nine can return a valid and legal verdict. So, I am telling you that, gentlemen, so that if you don’t all get together unanimously, if nine of you get together upon a verdict, you can act accordingly,” and in response to a question by a juror, instructed the jury that where a verdict is made by nine, each should sign his name to it.
The trial judge apparently was not aware that any attorneys were present, for he concluded by saying, “I am doing this in the absence of attorneys on either side, but I am taldng the responsibility and making a record of it here in court. The question in regard to this matter occurred at 8:20 this morning. I dismissed this jury and asked them to return at 8:15. So it was at a time when the jury were expected to be here and counsel were put on notice yesterday.” The judge was mistaken regarding the absence of the attorneys, for it is disclosed by the record that one representing the appellant excepted to the instruction of the court given with reference to the right of the jury to return a verdict upon the agreement of nine, “first, for the reason that the language of the court stating to the jury that it is important that they reach a decision in this case, and that a second trial would be expensive, is not proper and tends to influence the jury to arrive at a verdict against their judgment; sec-, ond, * * * for the reason that the case had been closed, argument of counsel had been made and the instructions of the court given, and the jury retired to consider their verdict, and later in open court announced that they were hung, and the defense contends that the instruction should not have been given after the case had been submitted to the jury and it was determined that they had failed to arrive at a verdict.”
As is said in St. L. I. M. & S. R. Co. v. Carter, 111 Ark. 284,164 S. W. 715: “The rule is well settled in this State that the trial court may detail to the jury the ills attendant on a disagreement and the importance of coming to an agreement. The trial judge should not, by threat or entreaty, attempt to influence the jury to reach a verdict. He should not, by word or act, intimate that they should arrive at a verdict which is not the result of their free and voluntary opinion, and which is not consistent with their conscience. He may, however, warn them not to be stubborn and to lay aside all pride of opinion and to consul c with each other and give due regard and weight to the opinion of their fellow-jurors.” We do not think that the language of the trial judge in his admonition to the jury violated this rule, and that, while calling attention to the importance of reaching a verdict and the time and expense a disagreement might entail, there was no element of threat or entreaty by which the jury or any one of its members might have been influenced to reach a verdict not the result of their voluntary and untrammeled opinion or which would be inconsistent with their conscience. Since the adoption of the amendment to the 'Constitution by which a verdict in civil eases may be reached upon the agreement of nine of the jury, it might be well in each case, at the time of its submission, in instructing the jury on the form of their verdict, to inform them that such verdict might be rendered upon the agreement of nine of the jurors. But we are unable to see how a litigant could be prejudiced by a failure to do this at the submission of the case and later on and during the time of the jury’s deliberation to so instruct and inform, them. However, we think the better practice would be to give the proper instruction as to the form of the verdict and how it might be returned when the case is first submitted to the jury.
The evidence being sufficient to warrant the amount of damage fixed, and, no error appearing on the face of the record, the judgment of the lower court is correct, and it is therefore affirmed. | [
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Mehaeey, J.
Lowry Austin and forty-five other farmers brought suit in the Chicot Chancery Court to recover $3,659.29 due them collectively for string beans which they, under written contract, produced during the year 1928 for the Dermott Canning Company.
Judgment was asked against the Dermott Canning Company and C. R. Bates, C. B. Bowman, L. F. Bellingrath, M. C. Magness, R. W. Marks, W. A. Daniels, and W. F. Akin, as directors of the canning company. The articles of association of the Dermott Canning Company were filed May 27, 1927. The certificate showed that $20,000 capital stock had been paid in cash.
The Exchange Bank & Trust Company is the legal successor of the Bank of Dermott, and when'the ¡banks were merged, the Exchange Bank & Trust Company took over all the assets and assumed the liabilities of the Bank of Dermott.
The contract the appellants made was in the spring of 1928. They produced and delivered the beans under the contract for which they have not been paid.
W. L. Akin was president of the canning company and M. C. Magness was secretary, and appellants seek to recover against them for failure to file the annual statement required by the provisions of § 1715 of C. & M. Digest. The canning company borrowed money from the banks and executed a mortgage on all the property, and appellants contended that the vice-president and secretary, who executed the mortgage, had no authority from the directors, and for that reason the mortgage was void.
It is also contended by appellants that the canning company, while insolvent, preferred the two banks over the other creditors, and contended that they were entitled to share in the distribution of the money paid to the banks.
Lowry Austin, one of the appellants, testified in substance that he knew a little about the organization of the canning company, having been present at a meeting when the matter of organizing the company was discussed. He did not know who the incorporators were; signed a contract to grow beans in 1928 on the printed form of the company, and delivered his last beans in July, 1928; talked to Mr. Magness, secretary and treasurer of the canning company about payment, and Mr. Magness said he would be paid; made his last demand for payment in August, after the factory had shut down.
Mr. Magness made a talk at the church and stated that he wanted the people to understand that, if they would be still until the beans were canned and sold, the company would pay all claims, and this satisfied witness. Witness did not know what was done with the bean money except what Magness said. Magness said he turned the money over to the Exchange Bank & Trust Company. Magness did not say what the money was turned over to the bank for. Witness understood that Akin was president of the company and that Bowman was vice-president. Magness was cashier of the Bank of Dermott. Witness was not advised that the company was insolvent when he delivered his beans. Witness and others believed that, as soon as the beans were sold, they would get paid. He never solicited the banks to furnish money to the canning company to buy beans. He never understood that the banks were to be repaid before he was paid, but was made to understand that, as soon as the beans were sold, he would be paid; heard Magness say in the meeting there was 28,000 or 30,000 cases of beans on hand, and if they sold anything like they did the year before there would be enough to pay all the growers; that, if the people would be patient, they would get their money. Witness met Akin at a meeting, and Akin made a talk discussing the canning factory. About all he talked about was his ability to sell the goods if they would go ahead and get the factory. Akin came down to discuss the advisability of a canning plant for Dermott; did not hear him say on what conditions he would move his factory to Dermott. The meeting was before the 1927 flood. Witness did not subscribe for any stock; heard it talked that Akin would bring some junk down if the people would subscribe the stock; did not know that the canning company was having trouble financing itself. Did not know that Mr. Akin had fallen down on the financing. Magness said it was working him to death to keep enough money to pay off.
Guy Courtney testified that he is one of the plaintiffs, that he grew beans for the canning company, and never solicited either of the banks to furnish money, to. the canning company. He did not have anything to do with the organization of the canning company. He planted beans because Mr. Magness asked him to; did not know who the directors of the canning company were; had never heard of the move on the part of the farmers to get the plant located at Dermott. It was gotten np by the people of Dermott. Mr. Magness told bim there would be plenty to pay everybody. Magness never told witness anything about the banks having a big debt against the canning company. He. could not find out anything, and after he had tried for about thirty days he employed lawyers to file suit.
J. B. G-riswood testified that he grew beans for the canning company in 1928', for which he had not been paid. During* the canning* season the canning plant employed from 50 to 150 hands. Witness attended the chamber of commerce meeting in 1927 when Mr. Akin discussed the canning plant and heard Mr. Akin say how it was to be handled. Akin said he could finance the scheme if the people of Dermott would subscribe some capital stock. Akin further said that he had fifteen plants and one of them was off the railroad, and he would move it to Dermott. Witness was not told that he was to get his money first. . He was assured several different times that he would get his money. He did not know how much was advanced by the banks nor what the beans sold for. Magness told him he would get his money.
S. G. Lockhart, cashier of the Exchange Bank & Trust 'Company, testified that in the merger of the two banks his bank took over the debts and assets of the Bank of Dermott. Magness was cashier of the Bank of Dermott. The Exchange Bank & Trust Company loaned the Dermott Canning* Company approximately $11,000. Some of it was loaned in 1927 and some in 1928. The canning company was indebted to the bank at the beginning of 1928 probably $2,000. The People’s Lumber Company was planning to file a lien, and the bank furnished the money to pay off this lien; that is, furnished a part and the other bank furnished a part. The bank furnished the canning* company money to buy bean seed to plant, and after the beans were canned the bank was secured by warehouse receipts. The receipts were delivered sometime after the money was- furnished. The money furnished by the bank in 1928 to 'buy beans and cans and to buy off a lien was $11,000. The lien was about. $2,400. Both banks had been paid in full by the canning company except $2,018. Witness did not know what became of the bank statements of the canning company. The debt of $2,018 is secured by a mortgage and is past due.
C. W. Carlisle, a bookkeeper, testified that he had examined the records of the canning company on file with the chancery clerk, and that they were incomplete and jumbled up. The bank statements for 1928 and 1929 were not among the papers. The 'stock book of the canning company showed that 83 certificates had been issued for 729 shares at $25 per share. The total of all the certificates was $18,225. The tickets at the clerk’s office 'aggregated 278,998 pounds. The labor tickets for 1928 totaled $4,432.
Did not see any minute book authorizing vice-president and secretary of the canning company to execute a mortgage. Witness’ testimony was based on records filed in the clerk’s office.
J. B. 'Cobum, superintendent of the canning factory of the Drew County Cottonseed Oil Mill Company at Monticello, testified that 278,998 pounds of green beans would make about 33,620 cases of canned beans, and that the prevailing prices for canned beans from May to July, 1928, were from 85 cents to $1.20 per dozen cans, which price would include brokerage and discount. The plant at Monticello was a going concern. It failed the first year because it was a promotion scheme, organized for $5,000, with $2,400 paid in, out of which it had to buy and equip the factory and pay for the products. Then the drouth came and the crops were poor. Witness understood that his company didn’t borrow money the last year of its operation but did before that. When a canning company is short of money, it is customary for it to warehouse its products.
M. O. Magness, former cashier of the Bank of Dermott, and former secretary and treasurer of the Dermott Canning Company, testified that he met Mr. Akin when the proposition for a canning plant was started, and that Akin, at a meeting, outlined a proposition to establish a canning plant at Dermott. Akin said he had had a number of years’ experience and that he had a plant he would like to bring to Dermott; that he wanted the local people interested but he wanted control of the stock; said that his machinery was worth $15,000. A committee was appointed to look into the proposition, and thereafter there were other meetings, and the canning factory was incorporated. Mr. Akin was to furnish the machinery at $15,000; the other money was to be raised locally; witness was one of the original incorporators; the capital stock was $20,000, and that amount of money, or its value, was put into the corporation. Akin had a plan for financing the proposition which he submitted to the chamber of commerce. The canning company lost some lumber in the 1927 flood. After the flood in 1927, the factory operated and did a small amount of business. A mortgage was given to the Exchange Bank and the Bank of Dermott in April, 1928, securing a debt of $2,000 to each bank.
The canning company erected a building. It was not, paid for, and the People’s Lumber Company filed suit to enforce its lien for something like $2,300. The balance of the $4,000 represented money to buy bean seed for the year 1928. Akin got into financial difficulties, and after a lot of trouble witness and others got a bonding company to bond the warehouse so that the company could hypothecate warehouse receipts.
The beans were bought from the farmers, and they were given bean tickets. Quite a lot of beans spoiled. The receipts were handled just like cotton compress receipts. When the beans were sold, the banks would be paid equally. The borrowed money was used to pay everything but the farmers. Numbers of them came to see witness; the hanks knew that the farmers had not been paid_, but the banks had warehouse receipts and when the beans were sold the money went to pay the banks.
Akin valued his machinery at $15,000 and gave assurance that it was worth that money. The directors did not undertake to ascertain the value; could not produce the records showing what the 1928 crop brought; kept a minute book, but it was with the records; thought the stock book was properly kept. Akin was to get $10,200 stock, and he testified that the audit made by Eebsamen, Brown & Company would reflect the truth better than he could from memory j told the farmers that if they would be quiet and wait they would get their money, but that the ■banks would have to be paid first; knew before the beans were sold that the company was insolvent; borrowed some money from the banks to can beans; cans were bought in carload lots $1,400 to $1,800 per carload. Witness admitted that neither he nor the president ever filed an annual statement.
John Baxter testified that he wrote the articles of incorporation; that Akin’s stock was valued at $15,000, but Akin only wanted $10,200. Parties around Dermott subscribed and paid for $6,475. If it had all been paid in and the machinery valued correctly, there would have been $25,000 capital stock and surplus. Akin subscribed $17,500 and paid in $2,500 cash. Akin did not pay anything for his capital stock except his machinery and what other folks put in. The Arkansas Power & Light Company had $750.
L. P. Bellingrath testified that he lived in Pine Bluff and was interested in the Coca Cola business with a distributing plant at Dermott, where he owned real estate. Subscribed and paid for $500 stock in the canning company.
O. B. Bowman testified that he lived in Dermott in 1927; attended the meetings when Akin spoke and explained the canning company and situation. He paid $1,000 for stock and had the stock issued to the Dermott Grocery Company.
Board of directors accepted Akin’s word after investigating and considering the matter thoroughly; offered to sell the machinery for considerably less than $15,000.
Appellants ’ first contention is that the directors are liable upon their certificates as to the amount of the capital stock. They rely on § 1711 of C. & M. Digest and the decisions of this court construing this section. This section among other things provides that the president and directors thereof shall file the articles of association and also certificates setting forth the purposes for which such corporation is formed, the amount of its capital stock, the amount actually paid in, and the names of the stockholders and the number of shares by each respectively owned, with the county clerk of the county in which the corporation is to have its principal place of business.
Section 8 of article 12 of the Constitution of Arkansas provides: “No private corporation shall issue stocks or bonds except for money or property actually received or labor done,” etc. It will be observed that the Constitution permits the issue of stocks for money, property, or laibor done.
In the first case referred to by appellant, the court said: “The defendants knew that the certificate made and filed by them was false when they signed it. They did not know or have reason to believe that shares of stock were paid as they certified. The shares certified to be paid included their own shares, and they knew that they or any part thereof were not paid at the time the certificate was made. It was confidently believed that the shares subscribed would be paid, and in belief of that fact they filed the certificate. But good faith is not equivalent to acts done. 'The shares certified were not taken or paid when the certificate was made. The evidence shows, that defendants intentionally neglected to file the certificate required by the statute.” O’Neil v. Eagle Generator Co., 92 Ark. 416, 123 S. W. 373.
We have no such statement of facts in the instant case. The certificate shows that there was paid in $20,000, and the evidence shows that $17,550 were held by Akin, and he sold property to the corporation of practically that value. The evidence, however, shows that it was the intention of the parties when they incorporated to sell stock to others, and that when a sufficient amount of stock was sold $2,500 of the value of Akin’s property was to be returned to him, and $2,500 to remain with the company as surplus, but at the time of its organization it appears that stock to the amount of $20,000 had been paid in property and money.
Mr. Magness testified: “Q. Mr. Magness, at the time this canning factory was organized, its capital stock was to be $20,000. Was that much money, or its value in property, actually put into this corporation at that time? A. It was.”
This witness also testified that the value of Akin’s property was established at $15,000. In addition to this value of the property Magness testified that there were $6,475 paid in.
J ohn Baxter, a lawyer, testified that with the $15,000, value of the machinery, and the cash that was paid in, there was $21,475.
Mr. J. B. Coburn, superintendent of the canning factory of the Drew County 'Cottonseed Oil Mill Company at Monticello, testified that he thought he could buy similar equipment to that of the Dermott 'Canning Company for $4,000. In the first place, the preponderance of the evidence shows that the property put in was worth $15,000; one witness testified that after a careful consideration they reached the conclusion that it was worth that amount.
Capital stock issued for property for the reasonable value of the property is authorized, and is just as valid as if issued for money.
The other case referred to by appellants was where stock had been issued for notes, and the court held that notes were neither property nor money, and the stock issued for notes is void. The chancellor found that the capital stock had .been paid in, and his finding is not against a preponderance of thei evidence.
Appellants ’ next contention is that the president and secretary are liable because of their failure to make and file the certificate required under § 1715 of >C. & M. Digest. The evidence shows conclusively that this section was not complied with, and this section has been construed by the court several times.
This court said in construing the above statute: “In view of the above statute, the president of a banking corporation, when he accepts the office and enters upon his duties, impliedly undertakes, if he neglects or refuses to make the annual statement, to pay all debts of the corporation contracted during the period of such neglect or refusal. The law raises the promise on his part to the creditors of the corporation that he will pay the debts of the corporation to them contracted during the period of his neglect or refusal to comply with the statute.” Hughes v. Kelley, 95 Ark. 327, 129 S. W. 784 ; Interstate Jobbing Co. v. Velvin, 165 Ark. 263, 263 S. W. 966 ; Culberhouse v. Fischer Lime & Cement Co., 167 Ark. 201, 266 S. W. 974.
However, in this case the complaint was filed July 9, 1927. The answer of the defendant, Magness, was filed November 15, 1929. In1 the original complaint there was no mention made of director’s liabilities under this section. On the 19th day of February, 1930, there was an amended complaint filed alleging the liability of the directors for failure to file a certificate as required by § 1715 of O. & M. Digest.
It is contended by appellants that it is the settled rule of practice that when a court of equity obtains jurisdiction of a cause it will decide it for all purposes. That is true, but the jurisdiction of cause of action because of the failure to file the annual statement was not obtained by the chancery court.
The statute provides: ‘ ‘ The plaintiff may amend his complaint without leave at any time before an answer is filed and without prejudice to the proceedings already had. ” iSection 1237, C. & M. Digest.
The answer of defendant Magness, as we have said, was filed on November 15,1929, and this amendment was filed the 19th day of February, 1930. Under the statute, after the answer filed, the plaintiff had no right to amend without permission of the court.
“The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting’ other allegations material to the case; or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.” C. &. M. Digest, § 1239.
The court, however, did not amend the pleadings in this case nor was the court’s permission had before filing the amendment. Not only had the answer been filed before the amendment, but much of the proof had been taken, and it is alleged by attorneys for appellees that the first knowledge they ever had of this new cause of action was when the case was called for trial.
In discussing the question of amendments, this court has said: “The statute does not, however, require the court at all stages of! the proceeding to permit the introduction of new issues in the case. That is to some extent a matter of discretion with the trial court, when the amendment does not change substantially the claim or defense, and this court will not disturb a ruling of the trial court in the exercise of that discretion when it clearly appears to have been observed.” Bluff City Lbr. Co. v. Hillson, 85 Ark. 39, 107 S. W. 161.
Of course, the amendment in the instant case did change substantially the claim of the plaintiff. It was a new cause of action.
This court also said: “Under statutes like this it has been uniformly held that no amendment can be allowed after the commencement of a trial which introduces into the case a new cause of action.” Patrick v. Whitely, 75 Ark. 465, 87 S. W. 1179.
The trial court has some discretion as to these matters, and unless its discretion is abused this court will not reverse. Amer. Bonding Co. v. Morris, 104 Ark. 276, 148 S. W. 519 ; Kempner v. Dooley, 60 Ark. 526, 31 S. W. 145 ; Mooney v. Tyler, 68 Ark. 314, 57 S. W. 1105.
It is next contended by appellants that the mortgage on the factory site was unauthorized and therefore void. The mortgage was executed by the vice-president and secretary, and the acknowledgment was regular and shows they had authority.
The burden of course was upon the persons attacking the validity of the mortgage to show that it was void, and that it was executed without authority. There is no evidence at all in the record tending to show this. One witness testified that he did not find any authority in the papers he examined. This does not prove, however, that the authority was not given.
It is true that wherever it is essential to prove a negative the burden is upon the party who alleges it unless the means of making the proof are in control of the opposite party. The production of the mortg’age itself with the proper acknowledgment was sufficient to introduce it in evidence, and it was prima facie valid.
The defendants were no more in possession or control of the means of proof than the plaintiffs were. The defendants did not have the records in their possession, and both of the officers were called as witnesses and the plaintiffs did not ask either of them whether they had such authority.
But evidence of Mr. Carlisle that there were two boxes of papers at the clerk’s office, records of various forms; that there were no adequate records to show the financial condition of the canning company; and that he did not , see any minute book authorizing the vice-president and secretary to execute a mortgage, was not sufficient to show that the mortgage was executed without authority.
It is finally contended that the preferences obtained by the banks should be set aside.
Section 1800 of O. & M. Digest provides among other things that no such preference shall be set aside unless complaint thereof be made within 90 days after the same is given or sought to ibe obtained.
The mortgage was executed on the 18th day of April, 1928, and filed for record immediately thereafter. The filing and recording of the mortgage was notice to plaintiffs as well as others, and no suit was filed until more than a year after the execution of the mortgage.
This court said in a recent case: “If this intervention, as appears to be the case from the allegations of the petition, be considered a proceeding to set aside and cancel the mortgage from the Fort Smith Spelter Company to the American Zinc Products Company as fraudulent and giving a preference to the creditors of an insolvent corporation, it must fail, as not having been commenced within 90 days after the execution of the mortgage complained of, as the law requires, since the mortgage sought to be foreclosed was recorded on June 24,1924, as alleged in the intervention, which was not filed until October 14, 1925, more .than a year after the execution and recording of the mortgage.” American Zinc Products Co. v. Sanders, 175 Ark. 133, 298 S. W. 857.
We find no error, and the decree of the chancery court is affirmed. | [
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Smith, J.
Appellant was tried under an indictment charging him with the crime of murder in the second degree, and was convicted of involuntary manslaughter and given a sentence of one year in the penitentiary, and this appeal is from that judgment.
Two errors are assigned and argued for the reversal of the judgment: First, that certain testimony was erroneously excluded; and, second, that error was committed in giving an instruction numbered 14.
Appellant, who is a man fifty-seven years old, testified that deceased, who was a boy sixteen years old, was employed at the Phipps Lumber Company plant in Fayetteville, of which he was foreman, and that after reproving the boy for smoking around the plant he later discharged him because he persisted in that practice, and that the boy came to the plant on several occasions to be reinstated, but he declined to re-employ him. Appellant further testified that just as work had suspended at noon on the day of the killing the boy came to the -plant where the employees had been at work, and walked up to appellant, and, after catching him by the arm, began to call him vile names. He ordered the boy away, and the boy answered by striking him, whereupon he slapped the boy, who stumbled from the blow but came up with a rock, which he. threw at appellant. As the boy did this he called appellant a vile name and said he would kill him, and appellant again slapped the boy. This blow knocked the boy down and apparently broke his neck and death ensued in about fifteen or twenty minutes. Appellant testified that he “just wanted to give him enough to keep him off of me, ’ ’ and that he had no thought of killing the boy or doing him great bodily harm, and that he actually believed, at the time he slapped the boy the second time, that the boy was going to strike him with a rock, and that to prevent this he slapped him.
The testimony on the part of the State was to the effect that appellant and deceased were walking up an aisle in the lumber shed, when the boy cursed appellant, who struck the boy, who, as one witness testified, “staggered back, or run, or something,” when appellant, advancing rapidly, struck the boy a second blow, which rendered him unconscious.
Upon the issues thus joined the court gave an instruction numbered 14, reading as follows: “I charge you that the danger, real or apparent, to the defendant must have been so urgent and pressing as to cause the defendant to honestly believe that the killing of the deceased was necessary in order to save his own life or prevent him from receiving great bodily harm at the hands of Homer Stout, and the defendant, to justify the killing, must have acted under the influence of such fears and not in a spirit of revenge. ’ ’
■ The record does not reflect what specific objections were made to this instruction at the trial, but it is now insisted that the instruction assumes that the defendant honestly believed the killing of the deceased was necessary in order to save his own life or to prevent the in fliction of great bodily harm, whereas, appellant testified, and at all times insisted, that he not only did not regard the hilling as necessary, but that he had no intention of killing the boy.
It is not argued that the instruction is not correct as an abstract declaration of the law; in fact, similar instructions have been many times approved by this court. The insistence is that the instruction does not present appellant’s defense, and that it is therefore abstract and misleading.
This is an objection which should have been specifically made, but the record does not reflect that this was done. However, it does not appear that the instruction was altogether abstract. Appellant admits that he did intend to strike the blow which killed the boy, although he had no intention of killing him, and that he struck the blow because he believed the boy was about to hit him with a rock. Moreover, appellant was not convicted of murder, but of involuntary manslaughter, which imports a finding, under the instructions defining the offense, that there was no intent to kill, but that the killing was done in the commission of an unlawful act, without malice and without means calculated to produce death. It appears therefore that the instruction was neither erroneous nor prejudicial.
The other assignments of error relating to exclusion of testimony arose as follows: Mrs. Alice Sturdy, called as a witness by appellant, testified, that, at a time — about which she could not be exact — she was at the home of the deceased’s mother, and heard a conversation between deceased and his mother, when some trouble which had occurred between appellant and deceased over some tools was discussed, and the witness was then asked what the mother of deceased said to her son. An objection to this testimony was sustained, whereupon appellant offered to prove that deceased’s mother “told him that she wanted him to go and whip that damned old grey-headed Sam Swaney (appellant), and she wanted to be present and see it done.”
We think no error was committed in excluding this testimony, for the reason that it does not tend to prove any threat against appellant by deceased. There was no offer to show that deceased made any response to the suggestion of his mother, or to show what his reaction to the suggestion was, or that the threat had been communicated to appellant. Moreover, the testimony, if admitted, would have been competent only as bearing upon the question as to who had probably been the aggressor in the difficulty, a matter about which there appears to be no conflict as the undisputed testimony shows the trouble commenced when deceased cursed appellant, and was brought on by his doing so.
There is no error in the record, and the judgment must be affirmed. It is so ordered. | [
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Kirby, J.,
(after stating the facts). Appellant insists that the court erred in permitting the introduction of parol testimony to contradict, vary or add to the terms of the written contract. Appellee insists, however, that he did not intend for his assignment or indorsement of the note to have any effect other than to evidence the fact of its payment, and asked a reformation thereof to express the true intention of the parties existing at the time it was made.
'The written contract between the Bradley Company and Storthz expressly provides, after the agreement for extending the time for the payment of the note, “and the party of the second part (Bradley Investment Company) hereby guarantees the payment of said note and interest to be paid-in the following manner,” setting out the amount and times for payment, and upon the payment of the note by the Bradley Investment Company, and recites: “The note for $35,203.12, referred to, shall be assigned by L. Storthz to the Bradley Investment Company when said payments on same are completed.” This provision is a guaranty of the payment of the note as provided in the terms of the writing by the Bradley Company, (Gay Oil Co. v. Roach, 93 Ark. 454, 125 S. W. 122, 27 L. R. A. (N. S.) 914, 137 Am. St. 95), whereby it was entitled to an assignment of the note. The parties making the guaranty contract knew when it was made that it would have to be performed by the Bradley Company, making the partial payments as provided, paying the note, and expressly contracted that, when it was paid in the manner provided, same “shall be assigned by L. Storthz to the Bradley Investment Company when said payments on same are completed. ’ ’
The appellant, assignee of the note and contract, understood from its terms that, upon completion of the payment of the amount of the note, it would be assigned by Storthz to him, and his letter remitting the amount due under the guaranty contract to complete the payment of the note directed “that you deliver it to Mr. L. Storthz, and, in turning it over, see that we receive the note in the amount of $35,203.12, and also that Storthz indorses or assigns the note in the proper legal manner necessary in order to protect the Bradley Investment Company.” This letter was read to Mr. Storthz upon delivery of the check for the last amount due under the contract of guaranty completing the payment of the note, which was demanded of him with such indorsement. He instructed the attorney to make the indorsement, “Pay to the Bradley Investment Company or order,” which was done and signed by Mr. Storthz. Regardless of what Storthz?s intention may have been in making such contract or guaranty to assign the note and of his indorsement thereon upon the completion of the payment of it in accordance with the contract of guaranty, he was bound by such con tract and indorsement, and there being no ambiguity in the contract and no' doubt albout the effect of it, the parol evidence was inadmissible to contradict, vary or add to its terms by restricting the meaning of his act and indorsement to an acknowledgment on receipt for payment of the note. Bradley Gin Co. v. Machinery Co., 94 Ark. 130, 126 S. W. 81.
In addition, the guaranty contract was prepared by Mr. Storthz’s attorney, and if there were ambiguity about this written contract or necessity for construction thereof, all doubt must be resolved and the contract construed more strongly against the party who prepared it. Wisconsin Lumber Co. v. Fitzhugh, 151 Ark. 101, 235 S. W. 1001.
It is not questioned that under the terms of the written guaranty the note was to be assigned to the Brad" ley Company when the payments were completed in accordance with the contract of guaranty, nor is it questioned that the check completing the payment was delivered to Mr. Storthz, the holder of the note, after the letter of directions to the attorney, to whom it was sent for delivery, had been read to him expressly stating therein that it should be delivered only upon proper indorsement or assignment of the note by Storthz in the proper legal manner necessary to protect the Bradley Investment Company. The indorsement was made upon the request of Mr. Storthz, signed by him, and it is not complained that he was misled or imposed upon in this transaction, and he will not be heard to say that he is not bound thereby bécause he did not intend its legal effect. McDonald v. Thompson, 167 Ark. 338, 268 S. W. 602.
The facts about this transaction are undisputed, and the testimony attempting to show that Mr. Storthz was entitled to a reformation of the written contract and the indorsement made under the terms of the written contract, requiring it to be done, is not established by clear, unequivocal and convincing testimony as must be done to entitle the reformation of a written instrument on the ground of mistake. Wales Plantation v. Banks, 101 Ark. 461, 142 S. W. 828 ; Fagan v. Graves, 173 Ark. 482, 293 S. W. 712 ; Simpson v. Craig, 174 Ark. 1180, 298 S. W. 360.
Moreover, a misunderstanding of the legal effect of the terms of a contract prepared by his own attorney could only be regarded as a mistake of law for which written instruments are not reformed. Utermehle v. Norment, 197 U. S. 56, 25 S. Ct. 291 ; Rector v. Collins, 46 Ark. 167 ; Varner v. Turner, 83 Ark. 131, 102 S. W. 1111.
For is a contract reformed 'for mistake, unless it be clearly shown that the mistake was common to both parties, and that the contract as executed does not express the contract as understood by either of them. Varner v. Turner, supra.
The indorsement on the note was made in accordance with the contract for the assignment thereof upon dhe completion of the payments for the consideration in the guaranty contract, and the maker of the indorsement, long after the execution of such contract, after reading of the instructions therefor that he was expected to assign the note in the proper legal manner necessary in order to protect the Bradley Investment Company, should have refused to make the indorsement, if he did not so understand the contract, and, not having done so, when informed of the purpose for which it was made, he waived any mistake and is estopped from setting it up. Snell v. Insurance Co., 98 U. S. 85 ; 34 Cyc. 942 ; 23 R. C. L. 347. iSee also Hearin v. Union Saw Mill Co., 105 Ark. 455, 151 S. W. 1007.
The assignment of the note carried the vendor’s lien with it, entitling the assignee to the enforcement of such lien. Section 476, O. & M. Digest; Hankins v. Bank, 161 Ark. 221, 255 S. W. 916 ; Robertson v. American Investment Co., 170 Ark. 413, 279 S. W. 1008 ; Porter Lumber Co. v. Bonner, 172 Ark. 828, 290 S. W. 606.
The grantee in the timber deed was entitled to cut the timber upon 2,000 acres of the land sold upon the acceptance by Storthz of the guaranty contract and the extension of the time for the payment of the note until default in the payment of the next note to become due under the sales contract. This right not having been exercised, this timber remained subject to the enforcement of the vendor’s lien for the balance of the purchase money due, including necessarily the sum represented by the note transferred to appellant, and the court should have enforced the lien equally, for the whole amount against all the timber lands, the appellant being entitled to payment of his note along with the balance of the purchase money due upon the timber ratably with 'Storthz, the vendor and holder of such remaining indebtedness.
The court, erred in not so holding, and the decree-must, be reversed and the cause remanded with directions to enter a decree in accordance with this opinion and for any further necessary proceedings to enforce the payment of the vendor’s lien for the benefit of appellant and in satisfaction of his right to payment of the amount due him under the note as assigned ratably with Storthz, the vendor, in proportion to the respective interests of the parties. Iti is so ordered.
Smith and McIIaney, JJ., dissent. | [
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Darrell Hickman, Justice.
This is a companion case to Perry v. State, 277 Ark. 357, 642 S. W.2d 865 (1982). Perry was found guilty of capital felony murder and sentenced to death for the murder of Kenneth Staton and Suzanne Ware. Staton owned a j ewelry store in Van Burén, Arkansas, and Ware was his daughter. They were killed when Perry and Anderson robbed the store on September 10, 1980.
Anderson was found guilty of murder in the first degree and sentenced to life imprisonment and a $15,000 fine. The evidence of his guilt was overwhelming, and essentially his defense was evidence in mitigation — that he did not know Perry was going to kill anyone during the planned robbery — and that he could not receive a fair trial. He raises ten arguments of error on appeal, all of which are meritless and we affirm his conviction.
Anderson met a young woman named Chantina Ginn at a carnival in Kansas. Together they followed the carnival to Arkansas and camped at the Horseshoe Bend camping ground at Beaver Lake. Anderson and Ginn were traveling on his 1978 Harley-Davidson motorcycle with Florida license plates. At the campground Anderson and Ginn met Perry who was camped with a woman named Laura Lee. Perry used the name of Damon Peterson. The day after they met, Perry asked Anderson if he wanted to participate in the robbery of a jewelry store in Van Burén, Arkansas. Anderson agreed and they left the campground on September 8, 1981, on the motorcycle. They each had a black motorcycle helmet, carried some rope, and Perry carried a wig. They checked into the Terry Motel in Van Burén, and then Anderson went to Staton’s Jewelry Store located in the Cloverleaf Plaza Shopping Center. On the 10th of September, at about 5:00 p.m., they robbed the store, taking innumerable rings, watches, and other jewelry. Anderson went in first to get the attention of the owner or clerks. Perry then came in the store. Anderson, as instructed by Perry, drew a loaded .38 pistol and held it on Staton; then Perry drew a .22 caliber pistol which had a silencer attached. They led Staton and Ware to a back room, tied and gagged them, and Perry shot them twice in the head. Anderson said Perry told him he shot them because he did not want to leave any witnesses. They gathered the jewelry in lightweight orange duffle bags, took the cash from the register, money from Staton’s wallet and even his wedding ring.
They used Ware’s Suzuki jeep to drive to where the motorcycle was parked. Then Anderson got on his motorcycle and met Perry at an apartment complex. They arrived back at the campground about 9:00 p.m. the third night after they had left. The jewelry and cash were sorted and divided and an attempt was made to burn all the tags and boxes. The police found remnants, however, and the State offered them as evidence. The next day Perry and Anderson went to Rogers, Arkansas, where they traded Perry’s Cadillac for a Plymouth. Then all four went to Fayetteville, stored the motorcycle, two helmets and Perry’s pop-up camper at Fayetteville Self-Service Storage and went to Florida. In Florida Anderson became involved in a fracas involving some shooting, was arrested and released on bond. He jumped his bond and went to Canada. He was arrested in Vancouver, British Columbia, on January 14th, 1981, for suspicion of armed robbery of a bank. After several interviews he eventually told the authorities of the Van Burén robbery and murders. Ultimately he waived extradition and was tried in Fort Smith, Arkansas, beginning on the 6th day of October, 1981. Besides the confession there was an abundance of evidence which supported these facts.
Anderson’s main argument of error focuses on the amount of pre-trial publicity this case received in the Fort Smith-Van Burén area and the fact this publicity permeated the community. He argues that the denial of his request for a continuance made it impossible for Anderson to receive a fair trial by an impartial jury.
There was a good deal of publicity about this case in the local community as we discussed in Perry v. State, supra, and the trial was moved from Van Buren across the river to Fort Smith at Anderson’s request. Also, most of the prospective jurors admitted some knowledge about the murders and knowing the fact that two men were involved. Anderson himself was interviewed on television and said he did not kill anyone. An order was entered preventing him from further interviews during Perry’s trial. The State sought the death penalty against Anderson and so qualified the jury. This meant there was an extensive and prolonged voir dire of veniremen to find a jury that could afford Anderson a fair trial. Anderson’s trial took place one year after the crime, and two months after Perry was tried. The trial court, giving both counsel considerable leeway in questioning the veniremen, made certain that no juror was allowed to be seated who, in its judgment, could not set aside any information he had about the case and fairly and objectively judge and weigh the evidence, rendering a fair punishment if necessary. A considerable lapse of time had occurred since the crime was committed and we can find no reversible error in the denial of the request for the continuance. A defendant is not entitled to a trial before a jury composed of people completely ignorant of the alleged crime. Irvin v. Dowd, 366 U.S. 717 (1961); Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. den. 449 U.S. 1057 (1980). That would be virtually impossible in this day and time. People are immediately, graphically, and thoroughly informed of such crimes by radio, newspapers, and television.
The question is always, was the defendant denied a fair trial because of pre-trial publicity; did he have a jury that could give him a fair trial. Swindler v. State, supra. We conclude Anderson received a fair trial by an impartial jury.
When this case is compared to cases cited by Anderson as authority for his argument there is no comparison. The notorious Sam Shappard case is cited as an example. Sheppard v. Maxwell, 384 U.S. 333 (1966). There are few if any similarities between Anderson’s case and Sheppard’s. The first trial of John Edward Swindler which occurred in this same vicinity is hardly comparable, where the trial took place within six months of the killing, and jurors admitted knowing of Swindler’s previous crimes. In Swindler, one juror had worked with the father of the victim for seventeen years; and another juror had worked for the United States Marshal’s office for eight years. Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978). None of that is present in this case.
It is suggested the trial judge injected himself into the voir dire process and improperly rehabilitated certain prospective j urors. What happened is that the defense was able to get certain prospective jurors to make statements that might subject them to challenge, if their answers were taken at face value. The judge did nothing improper in this case. In fact, he performed his duty as a trial judge should to see that veniremen understood their role under the law. In Hobbs v. State, 273 Ark. 125, 617 S.W.2d 347 (1981), we defined the proper role of a trial judge in such a case:
The judge is supposed to direct the process, being given great discretion to insure that no undue advantage is gained. Sometimes the attorneys tend to take over the voir dire process and confuse the jurors. See Haynes v. State, 270 Ark. 685, 606 S.W.2d 563 (1980). Sometimes, especially in a death case, the judge has to step in, after the attorneys have questioned prospective jurors, to insure fairness. In the case of McCree v. State, 266 Ark. 465, 585 S.W.2d 938 (1979), for example, we approved the actions of a judge who clarified answers regarding the death sentence after both counsel had questioned a prospective juror. Even so, the judge cannot, in effect, step from the bench and aid either party and he cannot unfairly limit either party’s right to seek twelve people who can render a fair and impartial verdict.
The trial judge did not act improperly in this case.
An extensive effort was made in the jury selection process to know exactly what each prospective juror knew of the case and his inclination toward the death penalty. A study of the record produces no basis on which to find the trial court abused its discretion in allowing a juror to sit or in refusing to disqualify one for cause. There may be room for argument in some instances such as in the questioning of juror Allen Gushea who seemed inclined to prefer the death penalty for "cold-blooded” murder. But that position was clarified by the trial court’s impartial questions. Actually, since Anderson received a life sentence instead of death, and was not convicted of capital murder, but instead only murder in the first degree, most of Anderson’s arguments relating to the jury’s prejudice lose their force.
Anderson also argues that it was error for the trial court to refuse to sequester the jury because of the crime that had occurred in the community during his trial. On appeal we are not told by Anderson what that crime was, or how it could have prejudiced the jury against him. The court agreed to and did admonish the jury against watching, reading, or listening to any news. Whether to sequester the jury is within the discretion of the trial judge. Ark. Stat. Ann. § 43-2121 (Repl. 1977); Perry v. State, supra; Hutcherson v. State, 262 Ark. 535, 558 S.W.2d 156 (1977).
Anderson’s counsel did ask the court to remove the trial to a site beyond the judicial circuit which is composed of only two counties: Sebastian where Fort Smith is located, and Crawford where Van Burén is located. The trial judge said he could not do that under the present law, and that statement was not entirely correct. If the question is whether a defendant can or cannot receive a fair trial, as required by the fourteenth amendment to the United States Constitution, then conflicting law must give way to a defendant’s right to due process. As we observed in Perry v. State, supra, if the trial court determines a defendant cannot receive a fair trial, then it has the power to remove the case to some county in an adjoining judicial circuit. The trial court made no such determination, and we find on review of the record Anderson did receive a fair trial; that is, he was tried by a jury that met constitutional standards. Therefore, the court’s statement cannot be a basis on which to reverse the conviction; nor do we find that the second motion for a change of venue should have been granted.
Anderson made two statements to Canadian authorities, one in writing and one to a man planted in Anderson’s cell by the authorities. He argues that these statements were inadmissible because the Canadian authorities did not tell Anderson he had a right to an attorney. He argues that he was a frightened foreigner in a strange situation and the statements, if given in the United States, would have been inadmissible and, therefore, they should be inadmissible in the Arkansas case against him. He cites two federal cases which recognize that our law does not prevent a confession in a foreign country from being admitted simply because of lack of procedures dictated by Miranda v. Arizona, 384 U.S. 436 (1966); United States v. Nolan, 551 F.2d 266 (10th Cir. 1977) cert. den. 434 U.S. 904 (1977) and United States v. Heller, 625 F.2d 594 (5th Cir. 1980). In Heller, supra, the fifth circuit court of appeals found two exceptions to that rule: If the foreign authorities were acting as agents for their American counterparts, of which Anderson conceded there is no evidence, or if the interrogation is “shocking.” Of course there is nothing at all in the record in this case that shocks us. There is not even any suggestion Anderson was harmed, threatened or mistreated in any way. So the court properly introduced the statements.
Anderson also argues that his inculpatory statements to Arkansas law enforcement officials, made subsequent to his Canadian statements, should also be suppressed because they were tainted by the illegality of the Canadian statements. We do not find that the Canadian statements were illegal, so the subsequent statements are not. Neither do we find that Anderson did not make a voluntary and knowing waiver of his rights to remain silent and have an attorney present when he made the statements to the United States’ officials. Anderson’s only basis for arguing that the American statements were not voluntary is that he was not told that death was a possible penalty for the crime of which he was suspected. Miranda v. Arizona, supra, does not require such a warning, and we will not expand Miranda by so holding, as Anderson asks us to do.
Photographs, the same as those used in the trial of Perry, were introduced in Anderson’s trial. See Perry v. State, supra. The defendant was charged as one of two defendants in the brutal, senseless murders and the ultimate penalty was sought. The photographs merely showed the bodies of the two victims as they were found after Anderson and Perry left them. They were not so highly prejudicial as to deprive Anderson of a fair trial.
The State solicited from Staton’s widow a statement that Staton had to use crutches and it is argued this was irrelevant evidence used merely to inflame the jury. We cannot say beyond a reasonable doubt this evidence amounted to reversible error. Actually the jury seemed to fairly judge Anderson and accept his statement that he did not know Perry would kill anyone; he was charged with capital felony murder, but only found guilty of first degree murder. Anderson’s approach to his guilt in this matter ignores another possible view of his conduct. Anderson agreed after casually meeting a total stranger to take a loaded gun and rob a jewelry store; he agreed to do exactly what Perry told him, being the first to pull his gun in the robbery. In view of these facts his legal guilt in the murders cannot be diminished by what he conceives as innocence on his part.
We have reviewed the transcript for any other prejudicial errors, as we are required to do, and have found none.
Affirmed.
ARK. CONST, art. 2, § 10 permits a change of venue only to another county in the same judicial district. | [
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Steele Hays, Justice.
This is a suit for personal injuries arising from a motor vehicle collision. The jury returned a verdict for the plaintiff Darren Harding in the amount of $653.41. Harding appeals on a single point— the trial court erred in instructing the jury on comparative fault. Finding no error, we affirm the judgment.
Darren Harding was driving his automobile west on Third Street in Little Rock. Appellee Julie Smith (now Buford) was driving a 1988 Ford van north on Commerce. The two vehicles collided in the intersection in a heavy downpour. Harding contends Ms. Buford failed to stop at a stop sign, among other acts of negligence, causing extensive physical damage and seriously injuring him. Harding claimed to have incurred medical bills totalling $10,500. Ms. Buford alleged that Harding’s injuries were the result of his own negligence.
Over Harding’s objection the trial court instructed the jury on comparative negligence. The amount of the verdict, $653.41, exactly equaled the amount of medical expenses incurred on the day of the accident, plus $38.52 for medication. Harding complains that it was reversible error for the jury to be instructed in accordance with AMI 206, 305(a), 901 and 2102 because there was no evidence of fault on his part. Thus, he maintains there is no substantial evidence supporting Ms. Buford’s theory of comparative negligence. Hamilton v. Pan American Southern Corp., 238 Ark. 38, 378 S.W.2d 652 (1964).
We disagree with the argument on two grounds: given the nature of the testimony, it was not improper for the jury to be instructed in accordance with the AMI instructions on compara tive fault, and it has not been demonstrated that the jury reduced an award to Harding by comparative negligence.
As to the verdict, this was a general verdict and we have no way of determining how the jury arrived at the amount awarded. As Ms. Buford points out, the cause and degree of Darren Harding’s injuries were sharply challenged and the jury may have determined that any damages attributable to Ms. Buford’s negligence were minimal. There was testimony that Harding did not appear to be injured, that he was walking around after the impact without complaint. The investigating officer testified that he saw no sign of blood or cuts. A paramedic testified that Harding had a laceration on his head, but it was so insignificant that he did not treat it, that in his opinion Harding was not significantly injured. Other testimony indicated Mr. Harding’s symptoms may have been preexisting.
As to causation, Darren Harding testified it was raining hard, that he was driving about 25 miles per hour in a 30 mile per hour speed zone; that he did not have his headlights on. He saw Ms. Buford approaching the intersection at a speed, he estimated at 20 miles per hour and attributed the collision to her failure to stop at the stop sign. Ms. Buford testified that the downpour impaired visibility. She testified she had her headlights on and stopped at the stop sign, looking both ways. As she entered the intersection she heard a car coming very fast and slammed on her brakes just as the two vehicles collided.
On the basis of that testimony the jury could well have inferred that Harding was guilty of some degree of fault which proximately caused or contributed to the occurrence, and it was not error to instruct the jury accordingly. James v. Bill C. Harris Construction Co., Inc., 297 Ark. 435, 763 S.W.2d 640 (1989).
Affirmed.
Glaze, J., not participating. | [
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